Legislature(2001 - 2002)

05/06/2001 05:08 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                    ALASKA STATE LEGISLATURE                                                                                  
               HOUSE JUDICIARY STANDING COMMITTEE                                                                             
                          May 6, 2001                                                                                           
                           5:08 p.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Representative Norman Rokeberg, Chair                                                                                           
Representative Jeannette James                                                                                                  
Representative John Coghill                                                                                                     
Representative Kevin Meyer                                                                                                      
Representative Ethan Berkowitz                                                                                                  
Representative Albert Kookesh                                                                                                   
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                              
Representative Scott Ogan, Vice Chair                                                                                           
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
CS FOR SENATE BILL NO. 161(FIN)                                                                                                 
"An  Act  relating to  the  withholding  of salary  of  justices,                                                               
judges,  and   magistrates;  relating  to  prompt   decisions  by                                                               
justices,   judges,  and   magistrates;   relating  to   judicial                                                               
retention elections  for judicial officers; and  providing for an                                                               
effective date."                                                                                                                
                                                                                                                                
     - MOVED HCS CSSB 161(JUD) OUT OF COMMITTEE                                                                                 
                                                                                                                                
CS FOR SENATE BILL NO. 176(L&C) am                                                                                              
"An Act  prohibiting certain  coercive activity  by distributors;                                                               
relating to certain required  distributor payments and purchases;                                                               
prohibiting  distributors from  requiring certain  contract terms                                                               
as a  condition for certain  acts related to  distributorship and                                                               
ancillary  agreements; allowing  dealers to  bring certain  court                                                               
actions against  distributors for  certain relief;  and exempting                                                               
from  the  provisions of  the  Act  franchises regulated  by  the                                                               
federal Petroleum  Marketing Practices Act,  situations regulated                                                               
by the Alaska gasoline products  leasing act, and distributorship                                                               
agreements relating  to motor vehicles required  to be registered                                                               
under AS 28.10."                                                                                                                
                                                                                                                                
     - MOVED HCS CSSB 176(JUD) OUT OF COMMITTEE                                                                                 
                                                                                                                                
PREVIOUS ACTION                                                                                                               
                                                                                                                                
BILL: SB 161                                                                                                                  
SHORT TITLE:TIMELY JUDICIAL DECISIONS/ JUDGES' PAY                                                                              
SPONSOR(S): JUDICIARY                                                                                                           
                                                                                                                                
Jrn-Date   Jrn-Page                     Action                                                                                  
03/23/01     0786       (S)        READ THE FIRST TIME -                                                                        
                                   REFERRALS                                                                                    
03/23/01     0786       (S)        JUD                                                                                          
04/04/01                (S)        JUD AT 1:30 PM BELTZ 211                                                                     
04/04/01                (S)        -- Meeting Postponed to                                                                      
                                   4/5/01--                                                                                     
04/05/01                (S)        JUD AT 1:30 PM BUTROVICH 205                                                                 
04/05/01                (S)        <Bill Held Over to 4/9/01> --                                                                
                                   Meeting Canceled --                                                                          
04/09/01                (S)        JUD AT 4:35 PM BELTZ 211                                                                     
04/09/01                (S)        Heard & Held - Meeting                                                                       
                                   Postponed to after                                                                           
                                   Adjournment-                                                                                 
04/20/01                (S)        JUD AT 1:30 PM BELTZ 211                                                                     
04/20/01                (S)        Moved CS(JUD) Out of                                                                         
                                   Committee                                                                                    
04/23/01     1212       (S)        JUD RPT CS 2DP 1DNP 2NR NEW                                                                  
                                   TITLE                                                                                        
04/23/01     1213       (S)        DP: TAYLOR, DONLEY; DNP:                                                                     
                                   ELLIS;                                                                                       
04/23/01     1213       (S)        NR: COWDERY, THERRIAULT                                                                      
04/23/01     1213       (S)        FN1, FN2: (CRT)                                                                              
04/23/01     1213       (S)        FIN REFERRAL ADDED AFTER JUD                                                                 
04/25/01                (S)        FIN AT 9:00 AM SENATE FINANCE                                                                
                                   532                                                                                          
04/25/01                (S)        Heard & Held                                                                                 
04/25/01                (S)        MINUTE(FIN)                                                                                  
05/03/01                (S)        FIN AT 6:30 PM SENATE FINANCE                                                                
                                   532                                                                                          
05/03/01                (S)        Moved CS(FIN) Out of                                                                         
                                   Committee -- Time Change --                                                                  
05/04/01     1485       (S)        FIN RPT CS 5DP 3NR NEW TITLE                                                                 
05/04/01     1485       (S)        DP: DONLEY, KELLY, GREEN,                                                                    
                                   LEMAN, WARD;                                                                                 
05/04/01     1485       (S)        NR: HOFFMAN, OLSON, WILKEN                                                                   
05/04/01     1485       (S)        FN3: ZERO(CRT)                                                                               
05/04/01     1493       (S)        RULES TO 1ST SUP CALENDAR 4OR                                                                
                                   5/4/01                                                                                       
05/04/01     1505       (S)        READ THE SECOND TIME                                                                         
05/04/01     1505       (S)        FIN CS ADOPTED UNAN CONSENT                                                                  
05/04/01     1505       (S)        ADVANCED TO THIRD READING Y15                                                                
                                   N5                                                                                           
05/04/01     1505       (S)        READ THE THIRD TIME CSSB
                                   161(FIN)                                                                                     
05/04/01     1506       (S)        PASSED Y15 N5                                                                                
05/04/01     1506       (S)        EFFECTIVE DATE(S) SAME AS                                                                    
                                   PASSAGE                                                                                      
05/04/01     1506       (S)        ELLIS NOTICE OF                                                                              
                                   RECONSIDERATION                                                                              
05/04/01                (S)        RLS AT 1:00 PM FAHRENKAMP 203                                                                
05/04/01                (S)        -- Time Change --                                                                            
05/04/01                (S)        MINUTE(RLS)                                                                                  
05/05/01     1524       (S)        RECON TAKEN UP - IN THIRD                                                                    
                                   READING                                                                                      
05/05/01     1524       (S)        PASSED ON RECONSIDERATION Y16                                                                
                                   N4                                                                                           
05/05/01     1524       (S)        EFFECTIVE DATE(S) SAME AS                                                                    
                                   PASSAGE                                                                                      
05/05/01     1558       (S)        TRANSMITTED TO (H)                                                                           
05/05/01     1558       (S)        VERSION: CSSB 161(FIN)                                                                       
05/05/01     1571       (H)        READ THE FIRST TIME -                                                                        
                                   REFERRALS                                                                                    
05/05/01     1571       (H)        JUD                                                                                          
05/06/01                (H)        JUD AT 3:00 PM CAPITOL 120                                                                   
                                                                                                                                
BILL: SB 176                                                                                                                  
SHORT TITLE:DISTRIBUTORSHIPS                                                                                                    
SPONSOR(S): LABOR & COMMERCE BY REQUEST                                                                                         
                                                                                                                                
Jrn-Date   Jrn-Page                     Action                                                                                  
04/05/01     0956       (S)        READ THE FIRST TIME -                                                                        
                                   REFERRALS                                                                                    
04/05/01     0957       (S)        L&C, JUD, FIN                                                                                
04/19/01                (S)        L&C AT 1:30 PM BELTZ 211                                                                     
04/19/01                (S)        Heard & Held                                                                                 
                                   MINUTE(L&C)                                                                                  
04/24/01                (S)        L&C AT 1:30 PM BELTZ 211                                                                     
04/24/01                (S)        Moved CSSB 176(L&C) Out of                                                                   
                                   Committee                                                                                    
                                   MINUTE(L&C)                                                                                  
04/25/01     1259       (S)        L&C RPT CS 5DP SAME TITLE                                                                    
04/25/01     1259       (S)        DP: PHILLIPS, DAVIS,                                                                         
                                   AUSTERMAN, LEMAN,                                                                            
04/25/01     1259       (S)        TORGERSON                                                                                    
04/25/01     1259       (S)        FN1: ZERO(CED)                                                                               
04/25/01                (S)        JUD AT 1:30 PM BELTZ 211                                                                     
04/25/01                (S)        Moved CS(L&C) Out of                                                                         
                                   Committee                                                                                    
04/26/01     1277       (S)        JUD RPT CS(L&C) 4DP                                                                          
04/26/01     1277       (S)        DP: TAYLOR, THERRIAULT,                                                                      
                                   COWDERY, ELLIS                                                                               
04/26/01     1277       (S)        FN1: ZERO(CED)                                                                               
04/28/01     1338       (S)        FIN REFERRAL WAIVED REFERRED                                                                 
                                   TO RULES                                                                                     
05/01/01     1400       (S)        RULES TO CALENDAR 5/1/01                                                                     
05/01/01     1405       (S)        READ THE SECOND TIME                                                                         
05/01/01     1405       (S)        L&C CS ADOPTED UNAN CONSENT                                                                  
05/01/01     1405       (S)        AM NO 1(TITLE AM) ADOPTED                                                                    
                                   UNAN CONSENT                                                                                 
05/01/01     1406       (S)        ADVANCED TO THIRD READING                                                                    
                                   UNAN CONSENT                                                                                 
05/01/01     1406       (S)        READ THIRD TIME CSSB
                                   176(L&C)(TITLE AM)                                                                           
05/01/01     1407       (S)        PASSED Y19 N1                                                                                
05/01/01     1407       (S)        TAYLOR NOTICE OF                                                                             
                                   RECONSIDERATION                                                                              
05/01/01                (S)        RLS AT 12:15 PM FAHRENKAMP                                                                   
                                   203                                                                                          
05/01/01                (S)        -- Time Change --                                                                            
05/01/01                (S)        MINUTE(RLS)                                                                                  
05/02/01     1447       (S)        RECON TAKEN UP - IN THIRD                                                                    
                                   READING                                                                                      
05/02/01     1447       (S)        RETURN TO SECOND FOR AM 2                                                                    
                                   UNAN CONSENT                                                                                 
05/02/01     1448       (S)        AM NO 2 ADOPTED UNAN CONSENT                                                                 
05/02/01     1448       (S)        AUTOMATICALLY IN THIRD                                                                       
                                   READING                                                                                      
05/02/01     1448       (S)        PASSED ON RECONSIDERATION Y18                                                                
                                   N1 A1                                                                                        
05/02/01     1450       (S)        TRANSMITTED TO (H)                                                                           
05/02/01     1450       (S)        VERSION: CSSB 176(L&C) AM                                                                    
05/03/01     1501       (H)        READ THE FIRST TIME -                                                                        
                                   REFERRALS                                                                                    
05/03/01     1501       (H)        L&C, JUD                                                                                     
05/05/01                (H)        JUD AT 1:00 PM CAPITOL 120                                                                   
05/05/01                (H)        <Bill Postponed>                                                                             
05/05/01                (H)        L&C AT 12:00 PM CAPITOL 17                                                                   
05/05/01                (H)        Moved HCS CSSB 176(L&C) Out                                                                  
                                   of Committee                                                                                 
05/05/01                (H)        MINUTE(L&C)                                                                                  
05/06/01     1586       (H)        L&C RPT FORTHCOMING HCS(L&C)                                                                 
                                   2DP 5NR                                                                                      
05/06/01     1586       (H)        DP: CRAWFORD, HAYES; NR:                                                                     
                                   HALCRO, KOTT,                                                                                
05/06/01     1586       (H)        MEYER, ROKEBERG, MURKOWSKI                                                                   
05/06/01     1586       (H)        FN1: ZERO(CED)                                                                               
05/06/01     1616       (H)        RECEIVED HCS(L&C) NT                                                                         
05/06/01     1616       (H)        TITLE CHANGE PENDING HCR
05/06/01                (H)        JUD AT 3:00 PM CAPITOL 120                                                                   
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
SENATOR DAVE DONLEY                                                                                                             
Alaska State Legislature                                                                                                        
Capitol Building, Room 506                                                                                                      
Juneau, Alaska  99801                                                                                                           
POSITION STATEMENT:  Testified on behalf of Senate Judiciary                                                                    
Standing Committee, sponsor of SB 161.                                                                                          
                                                                                                                                
CHRIS CHRISTENSEN, Deputy Administrative Director                                                                               
Office of the Administrative Director                                                                                           
Alaska Court System                                                                                                             
820 West 4th Avenue                                                                                                             
Anchorage, Alaska  99501                                                                                                        
POSITION STATEMENT:  Testified on SB 161.                                                                                       
                                                                                                                                
JOHN HAXBY                                                                                                                      
Waukesha Alaska Corporation                                                                                                     
PO Box 11098                                                                                                                    
Anchorage, Alaska  99511                                                                                                        
POSITION STATEMENT:  Testified on SB 176.                                                                                       
                                                                                                                                
JANEECE HIGGINS, General Manager                                                                                                
Alaska Rubber & Supply, Inc.                                                                                                    
5811 Old Seward Highway                                                                                                         
Anchorage, Alaska  99518                                                                                                        
POSITION STATEMENT:  Testified on SB 176.                                                                                       
                                                                                                                                
DEBORAH LUPOR                                                                                                                   
PO Box 771757                                                                                                                   
Eagle River, Alaska  99577                                                                                                      
POSITION STATEMENT:  Testified on SB 176.                                                                                       
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
TAPE 01-81, SIDE A                                                                                                              
Number 0001                                                                                                                     
                                                                                                                                
CHAIR  NORMAN  ROKEBERG  called   the  House  Judiciary  Standing                                                               
Committee  meeting  to  order  at   5:08  p.m.    Representatives                                                               
Rokeberg, James, Coghill,  and Meyer were present at  the call to                                                               
order.  Representatives Berkowitz  and Kookesh joined the meeting                                                               
as it was in progress.                                                                                                          
                                                                                                                                
SB 161 - TIMELY JUDICIAL DECISIONS/ JUDGES' PAY                                                                               
                                                                                                                                
CHAIR  ROKEBERG announced  the first  order of  business, CS  FOR                                                               
SENATE BILL NO. 161(FIN), "An  Act relating to the withholding of                                                               
salary of  justices, judges, and magistrates;  relating to prompt                                                               
decisions  by  justices,  judges, and  magistrates;  relating  to                                                               
judicial   retention  elections   for   judicial  officers;   and                                                               
providing for an effective date."                                                                                               
                                                                                                                                
Number 0106                                                                                                                     
                                                                                                                                
SENATOR  DAVE DONLEY,  Alaska State  Legislature,  came forth  on                                                               
behalf of the Senate Judiciary  Standing Committee, sponsor of SB
161.   He stated that SB  161 updates and clarifies  existing law                                                               
requiring  judges to  provide a  salary  warrant indicating  they                                                               
don't have  any decisions  that have been  pending for  more than                                                               
six months.   It also  sets out state  policy, in Section  1, for                                                               
the majority  of cases to  be decided  within six months  and for                                                               
appellate  cases  to  be  decided   within  six  months  of  oral                                                               
argument.                                                                                                                       
                                                                                                                                
SENATOR DONLEY reported that SB  161 also provides information to                                                               
be included in  the voter's guide regarding  any judicial officer                                                               
who was  up for retention and  failed to issue a  salary warrant.                                                               
[Senate Bill  161] provides an  annual report to  the legislature                                                               
of how many cases had been  pending more than the periods of time                                                               
that are set out in the  policy as well as additional information                                                               
about the types  of cases that are taking longer  than the target                                                               
dates or times.                                                                                                                 
                                                                                                                                
SENATOR DONLEY  said SB 161 clarifies  that information regarding                                                               
salary  warrants of  the judges  is public  information.   In the                                                               
past,  there   was  some  difficulty   with  the   Department  of                                                               
Administration  refusing  to  provide  that  information  to  the                                                               
[Alaska]  Judicial Council,  which is  in charge  of ranking  and                                                               
reviewing the judges; without being  able to get the information,                                                               
the judicial council had difficulty making a full analysis.                                                                     
                                                                                                                                
REPRESENTATIVE  COGHILL asked  Senator Donley  for the  rationale                                                               
behind the 2004 effective date.                                                                                                 
                                                                                                                                
SENATOR DONLEY responded  that he thinks the effective  date is a                                                               
holdover from  the original bill,  which had  stricter guidelines                                                               
for appellate courts.  The late  effective date was there to give                                                               
the court more time to "gear up" and clear its docket.                                                                          
                                                                                                                                
Number 0386                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES  asked Senator  Donley what would  happen if                                                               
the  six months  go by  and  the judges  don't do  what they  are                                                               
supposed to do.                                                                                                                 
                                                                                                                                
SENATOR  DONLEY answered  that  existing law  has  been in  place                                                               
since  statehood  whereby  in  order  for  judges  to  get  their                                                               
paychecks, they  must sign an  affidavit saying they have  had no                                                               
matter  pending for  more  than  six months.    Whereas [SB  161]                                                               
provides some fine-tuning, it doesn't change that basic system.                                                                 
                                                                                                                                
REPRESENTATIVE JAMES  asked whether  many [judges] have  not been                                                               
getting paid.                                                                                                                   
                                                                                                                                
SENATOR DONLEY replied that most  have been getting paid, because                                                               
most have  been able to  sign their  affidavits.  He  stated that                                                               
there are instances  when judges don't get paid and  have to deal                                                               
with a backlog.                                                                                                                 
                                                                                                                                
REPRESENTATIVE JAMES  asked whether it  is just a delay  in their                                                               
paychecks.                                                                                                                      
                                                                                                                                
SENATOR  DONLEY  answered  in  the affirmative.    He  said  [the                                                               
judges] won't lose their money;  once they catch up, they receive                                                               
their back pay.                                                                                                                 
                                                                                                                                
Number 0537                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES  asked whether [SB  161] allows for  this to                                                               
be recorded in the election bulletin.                                                                                           
                                                                                                                                
SENATOR DONLEY  answered affirmatively.   He  said for  the first                                                               
time, a state policy is adopted  consistent with the goals of the                                                               
court system.  Also, it is  specified that if a judge hasn't been                                                               
able  to  fill out  the  affidavits  and  has violated  the  time                                                               
period, that  information would be  put before the voters  in the                                                               
voter's guide.   He added that  the judge has the  opportunity to                                                               
respond to that in the voter's guide.                                                                                           
                                                                                                                                
REPRESENTATIVE  JAMES  asked  whether  there  have  been  studies                                                               
regarding the costs to the people  in court when a judge takes an                                                               
extended time to make a decision.                                                                                               
                                                                                                                                
SENATOR  DONLEY responded  that most  decisions in  the appellate                                                               
courts have been  accomplished in under a year.   He thinks there                                                               
are about 20  cases currently before the supreme  court that have                                                               
been there  for more than a  year; few cases have  been there for                                                               
more than  two years; and one  case has been there  for more than                                                               
three years since the final  pleading.  The court recognizes that                                                               
it is too long  and is trying to live with  the policy of getting                                                               
them done within a year.                                                                                                        
                                                                                                                                
CHAIR ROKEBERG  asked where  in the bill  the one-year  policy is                                                               
mentioned.                                                                                                                      
                                                                                                                                
SENATOR  DONLEY answered  that  it is  on page  1,  line 13,  and                                                               
states "that virtually all appellate  cases be decided within one                                                               
year  following   the  date   that  the   case  is   taken  under                                                               
advisement".                                                                                                                    
                                                                                                                                
Number 0730                                                                                                                     
                                                                                                                                
CHAIR ROKEBERG asked whether it is reflected in the statute.                                                                    
                                                                                                                                
SENATOR DONLEY  explained that  the original  bill did  include a                                                               
one-year  provision for  appellate  courts.   The court  strongly                                                               
objected  and said  it  was unfair  to  hold individual  justices                                                               
responsible for the collective inability  of the appellate courts                                                               
to reach  a final  decision.  Additionally,  the courts  said the                                                               
position  of  the  court   administration  was  that  legislative                                                               
mandates,  as   far  as  judicial  time   decision  periods,  are                                                               
unconstitutional.   While recognizing  that the  six-month [rule]                                                               
has worked well,  they believe expanding it  to include appellate                                                               
courts  would foster  litigation  which would  likely  lead to  a                                                               
decision that it was unconstitutional.   Therefore, that has been                                                               
deleted  [from  the  original bill]  and  policy  guidelines  and                                                               
reporting  [back to  the legislature]  were  inserted, which  the                                                               
court system does not oppose.                                                                                                   
                                                                                                                                
CHAIR ROKEBERG asked whether the  [final Senate version] reflects                                                               
a reaffirmation  on the  existing state  statute and  policy, and                                                               
clarifies it in relationship to a pamphlet and other reporting.                                                                 
                                                                                                                                
SENATOR  DONLEY responded  that that  is a  fair assessment.   He                                                               
said it is consistent with  existing policy and policy guidelines                                                               
that are  being adopted by the  supreme court, yet for  the first                                                               
time this is made public information.                                                                                           
                                                                                                                                
CHAIR ROKEBERG asked whether previously  this information was not                                                               
open to the public.                                                                                                             
                                                                                                                                
SENATOR  DONLEY  responded  that  several years  ago  the  Alaska                                                               
Judicial Council requested that  the Department of Administration                                                               
provide information regarding judicial warrants, but the                                                                        
department refused.                                                                                                             
                                                                                                                                
Number 0963                                                                                                                     
                                                                                                                                
CHRIS CHRISTENSEN, Deputy Administrative  Director, Office of the                                                               
Administrative  Director, Alaska  Court  System,  came forth  and                                                               
stated  that the  purpose  of this  legislation  is to  encourage                                                               
timeliness  and  eliminate  any  unnecessary  delay  in  judicial                                                               
decision-making.  He said:                                                                                                      
                                                                                                                                
     The  chief justice  and other  members  of the  supreme                                                                    
     court share Senator  Donley's concern.  And  as many of                                                                    
     you know, they have been  taking many steps in the last                                                                    
     two years to address timeliness  issues.  Last year the                                                                    
     supreme court adopted very  detailed time standards for                                                                    
     the trial courts.                                                                                                          
                                                                                                                                
     "Time  standard"   is  a  quantifiable  goal   for  the                                                                    
     delivery  of court  services to  litigants.   Different                                                                    
     time  standards were  adopted  for  different kinds  of                                                                    
     cases.  Our computer system  is antiquated, but we hope                                                                    
     to start  issuing quarterly reports on  the achievement                                                                    
     of  these  time  standards  later   this  year.    Last                                                                    
     October, we used  federal funds to train  all judges on                                                                    
     case  management techniques.    We  have established  a                                                                    
     mentoring program  so that judges who  are particularly                                                                    
     efficient can take new judges  or less efficient judges                                                                    
     under  their wings  and teach  them the  tricks of  the                                                                    
     trade.                                                                                                                     
                                                                                                                                
     As the chief  justice told you during her  State of the                                                                    
     Judiciary speech  a few months  ago, the  supreme court                                                                    
     is  also  committed  to shortening  time  in  appellate                                                                    
     cases.   About  two weeks  before this  legislation was                                                                    
     introduced,  the  court   adopted  time  standards  for                                                                    
     appellate court  cases and new procedures  for flagging                                                                    
     and  monitoring  cases so  that  cases  that are  being                                                                    
     delayed don't languish.                                                                                                    
                                                                                                                                
     I would  note that this is  very unusual.  While  it is                                                                    
     pretty  common   for  supreme  courts  to   adopt  time                                                                    
     standards for the trial  courts, it's almost unheard-of                                                                    
     for a  court outside  to adopt it  for itself,  but our                                                                    
     supreme court thinks this is important.                                                                                    
                                                                                                                                
     Judicial timeliness is an  important issue to everybody                                                                    
     in  this room.   We've  been actively  taking steps  to                                                                    
     address it [and]  we're going to continue.   Now, while                                                                    
     the  court system  did oppose  the original  version of                                                                    
     Senate  Bill 161,  the bill  sponsor has  done a  great                                                                    
     deal  of  work  on  it during  the  committee  process.                                                                    
     We're  very   appreciative  of  his  interest   in  our                                                                    
     concerns, and we do not  oppose the bill in its current                                                                    
     form.                                                                                                                      
                                                                                                                                
     The bill  makes a statement of  legislative intent that                                                                    
     we   believe  is   a  reasonable   expression  of   the                                                                    
     legislature's will.  In fact,  it is very, very similar                                                                    
     to  the  standards which  the  supreme  court has  been                                                                    
     adopting.   It  does provide  for some  extra reporting                                                                    
     requirements  on  judicial  timeliness,  both  for  the                                                                    
     benefits of the  electorate and for the  benefit of the                                                                    
     legislature as it's working on the annual budget.                                                                          
                                                                                                                                
Number 1094                                                                                                                     
                                                                                                                                
MR. CHRISTENSEN continued:                                                                                                      
                                                                                                                                
     The issue  of the  six-month rule has  come up.  ... As                                                                    
     Senator Donley  noted, the rule  has been on  the books                                                                    
     since 1959.   Before any judge or magistrate  - we have                                                                    
     99 judges and  magistrates - can get  a paycheck, every                                                                    
     two weeks they  just sign this one  affidavit that they                                                                    
     have nothing  before them that's  ready for  a decision                                                                    
     to be made that has  been languishing for more than six                                                                    
     months.                                                                                                                    
                                                                                                                                
     Because the supreme court and  the court of appeals are                                                                    
     committees,  the  rule applies  to  the  member who  is                                                                    
     assigned  the  job  of writing  the  majority  opinion.                                                                    
     That opinion has to be  out in six months; however, the                                                                    
     full opinion  may not be  released for  some additional                                                                    
     length  of time  because it  is subject  to negotiation                                                                    
     and revision by the other  majority members.  After the                                                                    
     majority  opinion is  finished,  and only  then, can  a                                                                    
     dissent  be  written.   And  then,  typically once  the                                                                    
     dissent is  written, the majority opinion  is redrafted                                                                    
     to answer the dissent.                                                                                                     
                                                                                                                                
     Right now,  we have  about 20,000 state  employees, and                                                                    
     the 99  judicial officers  are the  only ones  who have                                                                    
     their paychecks  withheld if they  are behind  on their                                                                    
     work.                                                                                                                      
                                                                                                                                
     Now,  I work  two hats.   I'm  the deputy  director, an                                                                    
     administrator, and as an administrator  I like the six-                                                                    
     month rule  because it  keeps the cases  moving.   As a                                                                    
     lawyer, on  the other hand,  and the person  who serves                                                                    
     as a general counsel for  the institution, I do believe                                                                    
     that  the existing  six-month rule  is unconstitutional                                                                    
     and wouldn't survive a legal  challenge.  It [has] been                                                                    
     followed for  40 years as  a matter of comity  - comity                                                                    
     being   respect  for   the  reasonable   wishes  of   a                                                                    
     coordinate branch government.                                                                                              
                                                                                                                                
     The   legislature  is   the   funding  authority;   the                                                                    
     legislature has  expressed a  desire that  decisions be                                                                    
     made within  six months; the legislature  has generally                                                                    
     provided funding  and resources  adequate to  get cases                                                                    
     resolved  within six  months;  therefore,  it would  be                                                                    
     unreasonable not to respect the legislature's wishes.                                                                      
                                                                                                                                
     Last fiscal year  we had about 150,000  new cases filed                                                                    
     with  the  court  system.   During  that  fiscal  year,                                                                    
     courts  disposed of  150,000 existing  cases; that's  a                                                                    
     lot  of cases.   And  during  that year  there were,  I                                                                    
     believe, 25 occasions when a  judge or magistrate could                                                                    
     not  execute  the  affidavit  and  had  their  paycheck                                                                    
     withheld  for some  period of  time,  until they  could                                                                    
     execute  the  affidavit.   Twenty-five  delays  out  of                                                                    
     150,000  cases  under  the performance  measure  that's                                                                    
     been set  by the  legislature is  really a  pretty good                                                                    
     record, but it's not perfect.                                                                                              
                                                                                                                                
     You might ask,  "Why is the supreme  court imposing new                                                                    
     time  standards   and  training   judges  to   be  more                                                                    
     efficient?"   And  pretty  simply,  the six-month  rule                                                                    
     applies to the period of  time once a decision is ready                                                                    
     to be made.   There's a whole period of  time in a case                                                                    
     before  [a] decision  is  ready to  be  made, when  the                                                                    
     lawyers are spinning  their wheels, conducting discover                                                                    
     [and]  having hearings.  ... We  strongly believe  that                                                                    
     through  better case  management techniques  and riding                                                                    
     herd on  the lawyers a  little better, we can  get that                                                                    
     period of time down as well.                                                                                               
                                                                                                                                
     Mr.  Chairman, the  basis  for our  view  that the  law                                                                    
     wouldn't survive  a legal challenge is  what's happened                                                                    
     in  other states.    There  are about  a  half a  dozen                                                                    
     states or so  that have a similar law  to our six-month                                                                    
     rule.     It's  been   challenged  three  times   -  in                                                                    
     Wisconsin,  Montana, and  Nevada.   Each time,  the law                                                                    
     was  thrown   out  for   reasons  which   are  directly                                                                    
     applicable under the Alaska constitution.                                                                                  
                                                                                                                                
     First,  our   constitution  provides  that   a  judge's                                                                    
     compensation shall  not be  diminished during  the term                                                                    
     of office, except by a  general reduction applicable to                                                                    
     all state employees.   Now, Mr. Chairman,  as you know,                                                                    
     money has a  time value, and if you  withhold a judge's                                                                    
     salary for  a period  of time, you  have the  effect of                                                                    
     diminishing it.                                                                                                            
                                                                                                                                
     I think  the record ... was  set about 15 years  ago by                                                                    
     an  Anchorage   judge;  she  was  carrying   an  active                                                                    
     caseload of  800 cases, and  she had one case  that was                                                                    
     delayed  beyond  six  months,   ...  and  she  had  her                                                                    
     paycheck withheld for over four  months.  It is sort of                                                                    
     difficult to argue that that  didn't have the effect of                                                                    
     diminishing her salary during the course of the year.                                                                      
                                                                                                                                
Number 1314                                                                                                                     
                                                                                                                                
MR. CHRISTENSEN continued, stating:                                                                                             
                                                                                                                                
     Second,  under our  constitution the  supreme court  is                                                                    
     charged  with administering  the  judicial branch,  not                                                                    
     the legislature.  The six-month  rule is really sort of                                                                    
     a micromanagement  that goes to  the very heart  of the                                                                    
     supreme  court's authority  to  administer our  branch.                                                                    
     It applies  to the work  of every judge, every  day, in                                                                    
     every case.                                                                                                                
                                                                                                                                
     Mr. Chairman, there is also  a whole line of cases from                                                                    
     other  states in  which the  legislature has  timelines                                                                    
     for courts  to conduct themselves  ... but has  not put                                                                    
     the penalty of withholding  paychecks.  There's about a                                                                    
     dozen  of those  cases and  with almost  unanimity -  I                                                                    
     think  with  one  exception -  those  cases  hold  that                                                                    
     legislatures can't set those timelines.                                                                                    
                                                                                                                                
     There is a  rule of constitutional law  that one branch                                                                    
     of government  can't set a timeline  for another branch                                                                    
     to  carry  a constitutional  function.    This rule  is                                                                    
     generally  invoked  to  protect the  executive  or  the                                                                    
     legislature from  court orders, but rules  like this do                                                                    
     cut both ways.                                                                                                             
                                                                                                                                
     Notwithstanding  our belief  that  the  current law  is                                                                    
     probably unconstitutional,  you've never heard  us come                                                                    
     into  the legislature  and complain  about it.   And  I                                                                    
     would  suspect   that  none  of  you   have  ever  been                                                                    
     approached  by your  local judge  and heard  complaints                                                                    
     about it.   We do hear  grumbling from time to  time in                                                                    
     court administration,  ... and  our answer  [is] always                                                                    
     the same:  "If you don't  like the law, file a lawsuit.                                                                    
     But until  you file  a lawsuit and  get it  thrown out,                                                                    
     get your  cases done and  get your affidavit in  if you                                                                    
     want a paycheck."                                                                                                          
                                                                                                                                
     Our goal, I  think, is to make  sure that circumstances                                                                    
     don't arise  which would cause  1 of the  99 individual                                                                    
     judicial officers to decide to  file a lawsuit to throw                                                                    
     out the  six-month rule.   In the  states where  it has                                                                    
     been thrown out, the lawsuits  have always been brought                                                                    
     by individual judges who were  unhappy that their check                                                                    
     was withheld, never  by the supreme court  or the court                                                                    
     system as an institution.                                                                                                  
                                                                                                                                
     This  bill in  its  current form  eliminates all  those                                                                    
     things which we believe might  have resulted in a legal                                                                    
     challenge to the existing six-month rule.                                                                                  
                                                                                                                                
CHAIR ROKEBERG asked  whether [there could be  a legal challenge]                                                               
if [judges] decide to do so based on constitutional issues.                                                                     
                                                                                                                                
Number 1440                                                                                                                     
                                                                                                                                
MR.  CHRISTENSEN responded  that they  could if  they wanted  to;                                                               
however, he  suspects most won't  because they believe  they have                                                               
adequate resources.                                                                                                             
                                                                                                                                
REPRESENTATIVE BERKOWITZ  asked whether the court  system has the                                                               
authority to impose its own sanctions on its membership.                                                                        
                                                                                                                                
MR. CHRISTENSEN answered that Wisconsin  threw its version of the                                                               
six-month rule  out; the  supreme court,  in its  opinion, struck                                                               
down the  six-month rule but adopted  a court rule that  was very                                                               
similar.                                                                                                                        
                                                                                                                                
REPRESENTATIVE  JAMES remarked  that she  wishes [the  committee]                                                               
would  do  that,  because  this  language  doesn't  seem  proper.                                                               
However, she agrees  "they ought to pull us out  of the fire" and                                                               
put in a  court rule.  She asked Mr.  Christensen whether it will                                                               
be more effective to have information in the election bulletin.                                                                 
                                                                                                                                
MR.  CHRISTENSEN responded  that [the  Alaska Court  System] does                                                               
not oppose  that.  He  said he could provide  the list of  the 25                                                               
times judges  had their  paychecks withheld  last year;  that has                                                               
always been a public record.                                                                                                    
                                                                                                                                
REPRESENTATIVE  JAMES remarked  that  she is  willing to  support                                                               
that because she thinks it is important for people to know.                                                                     
                                                                                                                                
Number 1653                                                                                                                     
                                                                                                                                
REPRESENTATIVE  BERKOWITZ  stated  that  it  seems  to  him  [the                                                               
legislature] is running afoul by  requiring the court officers to                                                               
insert information  about their  salary warrants in  the election                                                               
pamphlet.                                                                                                                       
                                                                                                                                
CHAIR ROKEBERG  said there could be  a debate in terms  of power,                                                               
which resides in the legislature,  to establish election statutes                                                               
and  how  elections are  conducted.    He  said that  would  even                                                               
strengthen the position.                                                                                                        
                                                                                                                                
REPRESENTATIVE  BERKOWITZ asked  whether [the  legislature] would                                                               
require  any publication,  for example,  of  APOC (Alaska  Public                                                               
Offices  Commission)  violations  or ethics  convictions  in  the                                                               
legislature.                                                                                                                    
                                                                                                                                
REPRESENTATIVE  JAMES  responded  that   there  is  a  difference                                                               
between putting  it in  the election pamphlet  and putting  it on                                                               
the ballot.                                                                                                                     
                                                                                                                                
CHAIR ROKEBERG  stated that according to  correspondence from the                                                               
Alaska Judicial  Council requesting  the information in  order to                                                               
perform their job, he thinks it is legitimate.                                                                                  
                                                                                                                                
Number 1770                                                                                                                     
                                                                                                                                
MR. CHRISTENSEN noted  that Bill Cotton from  the Alaska Judicial                                                               
Council has said he is going to  put this on their web site along                                                               
with the other information.                                                                                                     
                                                                                                                                
REPRESENTATIVE BERKOWITZ, in reference  to the election pamphlet,                                                               
stated  that  the judicial  officers  are  bound by  some  strict                                                               
ethical requirements about what they  can and can't say, in terms                                                               
of their ability to run elections.   He asked whether it would be                                                               
permissible for a  judicial officer who was required  to put this                                                               
information in an election pamphlet to offer an explanation.                                                                    
                                                                                                                                
MR. CHRISTENSEN responded that he didn't know.                                                                                  
                                                                                                                                
Number 1821                                                                                                                     
                                                                                                                                
SENATOR  DONLEY remarked  that they  do have  the opportunity  to                                                               
respond.                                                                                                                        
                                                                                                                                
CHAIR  ROKEBERG asked  whether,  if  there is  a  charge made  in                                                               
public during the  course of the election, the judge  has a right                                                               
to respond.                                                                                                                     
                                                                                                                                
MR.  CHRISTENSEN responded  that  once a  campaign committee  has                                                               
formed, a judge has the right to raise money and respond.                                                                       
                                                                                                                                
SENATOR DONLEY remarked  that he thinks a judge has  the right to                                                               
respond on his or her own.                                                                                                      
                                                                                                                                
MR.  CHRISTENSEN stated  that  there  is a  very  strict code  of                                                               
judicial ethics that  restricts a lot of what a  judge is able to                                                               
say about a case that's pending  or impending in any court of the                                                               
state.  For example, if a judge  has handled a case and there are                                                               
charges  against  him  or  her  in that  case,  the  judge  can't                                                               
publicly make  certain comments while  it's still pending  in the                                                               
supreme court.                                                                                                                  
                                                                                                                                
CHAIR ROKEBERG remarked  that if it were printed  in the pamphlet                                                               
that [the  judge] did not receive  his or her warrants  a certain                                                               
number of times, the judge should  have the right to respond.  He                                                               
asked  whether  it is  because  of  "standing" issues  that  this                                                               
hasn't been challenged before.                                                                                                  
                                                                                                                                
Number 1930                                                                                                                     
                                                                                                                                
MR. CHRISTENSEN  responded that  a judge  would have  standing to                                                               
challenge;  so, probably,  would  the institution.   However,  he                                                               
didn't  know whether  a  member  of the  public  would have  that                                                               
power.   The only  people who suffer  any financial  hardship are                                                               
the 99 judicial  officers.  Logically, they're the  only ones who                                                               
would  be willing  to  spend  the money  to  be  relieved of  the                                                               
burden.                                                                                                                         
                                                                                                                                
SENATOR DONLEY informed the committee  that he is willing to take                                                               
advice from the court system as far as the effective date.                                                                      
                                                                                                                                
CHAIR ROKEBERG  asked Mr. Christensen,  "What's the burn  rate on                                                               
your case backlog?"                                                                                                             
                                                                                                                                
MR. CHRISTENSEN  answered that there  is nothing  mandatory about                                                               
the case backlog in [the bill].                                                                                                 
                                                                                                                                
CHAIR ROKEBERG  asked whether  this should be  in effect  for the                                                               
next election.                                                                                                                  
                                                                                                                                
MR. CHRISTENSEN responded that since  it's now more advisory than                                                               
mandatory, he  believes it would  be fine to start  the beginning                                                               
of next year.                                                                                                                   
                                                                                                                                
REPRESENTATIVE JAMES made a motion  to adopt Amendment 1, on page                                                               
6, line 11 [to change the effective date to] January 1, 2002.                                                                   
                                                                                                                                
Number 2034                                                                                                                     
                                                                                                                                
REPRESENTATIVE BERKOWITZ objected.                                                                                              
                                                                                                                                
SENATOR DONLEY said he didn't have any objection to the date.                                                                   
                                                                                                                                
MR. CHRISTENSEN remarked that he wouldn't have any objection.                                                                   
                                                                                                                                
REPRESENTATIVE  BERKOWITZ explained  that  his  objection to  the                                                               
bill is not  because of its subject, but is  based on his respect                                                               
for the separation of powers.                                                                                                   
                                                                                                                                
REPRESENTATIVE MEYER  stated that the administration  has said it                                                               
is OK with  this date; if that weren't true,  he would agree with                                                               
Representative Berkowitz.                                                                                                       
                                                                                                                                
REPRESENTATIVE BERKOWITZ  remarked that  he doesn't  always agree                                                               
with the administration.                                                                                                        
                                                                                                                                
CHAIR ROKEBERG pointed out that  it is not the administration but                                                               
the courts.   He  commented that  he thinks  if this  bill merits                                                               
consideration by the  legislature, it should be  enforced for the                                                               
next election.                                                                                                                  
                                                                                                                                
Number 2148                                                                                                                     
                                                                                                                                
A  roll call  vote was  taken.   Representatives Coghill,  Meyer,                                                               
James,   and   Rokeberg   voted   in  favor   of   Amendment   1.                                                               
Representatives   Berkowitz  and   Kookesh   voted  against   it.                                                               
[Representative  Ogan was  absent.]   Therefore, Amendment  1 was                                                               
adopted by a vote of 4-2.                                                                                                       
                                                                                                                                
Number 2155                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES  moved to report CSSB  161(FIN), as amended,                                                               
out  of   committee  with  individual  recommendations   and  the                                                               
accompanying zero fiscal note.                                                                                                  
                                                                                                                                
REPRESENTATIVE  BERKOWITZ objected.    He stated  that he  thinks                                                               
[the  legislature]  is  violating  the separation  of  powers  by                                                               
compelling  the judiciary  to  do  something.   He  said he'd  be                                                               
interested in hearing  how this action is not a  violation of the                                                               
separation of powers.                                                                                                           
                                                                                                                                
CHAIR  ROKEBERG   responded  that   the  administration   of  the                                                               
elections is in purview of  the legislature, which is the primary                                                               
reason  [why  this  is  not  a violation  of  the  separation  of                                                               
powers].   He said  he thinks  the public has  the right  to know                                                               
this information.                                                                                                               
                                                                                                                                
REPRESENTATIVE BERKOWITZ  remarked that he doesn't  dispute that;                                                               
however, he is  disputing that the legislature  is compelling not                                                               
only information about  elections, but that the  court system and                                                               
the judicial  officers must file  affidavits.  He said  he thinks                                                               
it is  an inappropriate intrusion  of the legislature  on matters                                                               
that should be left internally to the judiciary.                                                                                
                                                                                                                                
REPRESENTATIVE JAMES noted that this  has been existing law since                                                               
statehood,  and  she  doesn't think  [the  committee]  should  be                                                               
discussing that portion of it.                                                                                                  
                                                                                                                                
REPRESENTATIVE BERKOWITZ  responded that there was  an indication                                                               
that  it is  unconstitutional, and  it is  only for  the sake  of                                                               
comity that the courts have not pursued an objection.                                                                           
                                                                                                                                
Number 2248                                                                                                                     
                                                                                                                                
A  roll call  vote was  taken.   Representatives Coghill,  Meyer,                                                               
James, and  Rokeberg voted in  favor of moving CSSB  161(FIN), as                                                               
amended.   Representatives  Berkowitz and  Kookesh voted  against                                                               
it.   [Representative  Ogan  was absent.]    Therefore, HCS  CSSB
161(JUD)  was   reported  from   the  House   Judiciary  Standing                                                               
Committee.                                                                                                                      
                                                                                                                                
SB 176 - DISTRIBUTORSHIPS                                                                                                     
                                                                                                                                
CHAIR  ROKEBERG announced  the final  order of  business, CS  FOR                                                               
SENATE  BILL  NO.  176(L&C)  am,   "An  Act  prohibiting  certain                                                               
coercive activity  by distributors; relating to  certain required                                                               
distributor  payments  and  purchases;  prohibiting  distributors                                                               
from requiring certain contract terms  as a condition for certain                                                               
acts  related   to  distributorship  and   ancillary  agreements;                                                               
allowing  dealers   to  bring   certain  court   actions  against                                                               
distributors  for   certain  relief;   and  exempting   from  the                                                               
provisions  of  the  Act  franchises  regulated  by  the  federal                                                               
Petroleum Marketing  Practices Act,  situations regulated  by the                                                               
Alaska  gasoline   products  leasing  act,   and  distributorship                                                               
agreements relating  to motor vehicles required  to be registered                                                               
under AS 28.10."  [Before the committee was HCS CSSB 176(L&C).]                                                                 
                                                                                                                                
Number 2282                                                                                                                     
                                                                                                                                
JOHN HAXBY,  Waukesha Alaska Corporation,  came forth  to discuss                                                               
SB 176.  He  told members the company was started  in 1972 by his                                                               
father,  and he  himself has  been operating  the business  since                                                               
1984.    There  are  approximately 13  employees,  and  the  main                                                               
business involves the sale and  distribution of machinery for all                                                               
services throughout Alaska.  He stated:                                                                                         
                                                                                                                                
     Over  the last  30 years,  we've been  in relationships                                                                    
     with  manufacturers.   Relationships change  over time,                                                                    
     and  there are  occasions where  distributor agreements                                                                    
     are yanked  without warning.   In  many cases  this can                                                                    
     cause  irreparable  harm  financially.   Alaskan  small                                                                    
     businesses  see immediate  losses in  jobs and,  in our                                                                    
     case,  it  has  resulted  in some  $300,000  in  unsold                                                                    
     inventory, which remains on our shelf.                                                                                     
                                                                                                                                
     Basically, what SB 176 does  ... is it levels the legal                                                                    
     playing  field   in  Alaska.    Legal   challenges  are                                                                    
     extraordinarily  expensive,  and  in most  cases  deep-                                                                    
     pocketed Outside  manufacturers simply  run you  out of                                                                    
     money.   Cases like this  can and have easily  run into                                                                    
     hundreds   of  thousands   of  dollars.   ...  In   one                                                                    
     noticeable instance  ... legal  bills have  exceeded $1                                                                    
     million  and climbing,  even  in a  case  in which  the                                                                    
     local  Alaskan company  has won  in every  court that's                                                                    
     south  of the  9th  Circuit.   And  in that  particular                                                                    
     case, there are continuing appeals.                                                                                        
                                                                                                                                
     This  bill   also  keeps  manufacturers   from  forcing                                                                    
     unwanted or unordered  inventory on Alaskan businesses.                                                                    
     It's not uncommon to be  made part of quotas unknown to                                                                    
     yourselves, and  [be] told, "Hey, you're  going to take                                                                    
     this inventory  because you're  our distributor.   Take                                                                    
     it or we're  going to terminate you or  we're not going                                                                    
     to have a relationship anymore."                                                                                           
                                                                                                                                
     The  bill also  allows for  the orderly  disposition of                                                                    
     inventory  if  a  distributor   agreement  is  in  fact                                                                    
     yanked.     It  returns   precious  capital   for  that                                                                    
     inventory,  which would  be remaining  at  the time  of                                                                    
     termination  of   the  distributor  agreement,   to  be                                                                    
     returned.     The  inventory  would  go   back  to  the                                                                    
     manufacturer  and there  would be  a repurchase  by the                                                                    
     manufacturer of  that inventory.  This  allows Alaskans                                                                    
     to  take that  capital  and reinvest  it in  businesses                                                                    
     here in the state.                                                                                                         
                                                                                                                                
Number 2399                                                                                                                     
                                                                                                                                
MR. HAXBY continued:                                                                                                            
                                                                                                                                
     The bill also allows that in  the event of a death of a                                                                    
     distributor or  the death of  a dealer that  an orderly                                                                    
     and equitable  return of inventory can  be accomplished                                                                    
     quickly.   It's especially important in  these cases to                                                                    
     be  able to  have an  orderly disposition  of inventory                                                                    
     and/or  the  business,  because   many  times  the  IRS                                                                    
     [Internal Revenue Service] comes  in and they value the                                                                    
     business  according  to  the past  performance  of  the                                                                    
     business.                                                                                                                  
                                                                                                                                
     In the event  that a distributorship is  in fact yanked                                                                    
     -  and the  IRS comes  and says,  "We have  a tax  bill                                                                    
     because your  business is valued  at 'X'  dollars," and                                                                    
     they  assess  a  tax  value  - ...  the  value  of  the                                                                    
     business  may  in fact  go  to  zero  and ...  the  tax                                                                    
     liability  remains  with the  estate  of  itself.   So,                                                                    
     theoretically, it  has the possibility to  wipe out the                                                                    
     heirs after the death of a dealer.                                                                                         
                                                                                                                                
     I  read through  this committee  substitute and  I have                                                                    
     pretty much agreed  with the way it is  written at this                                                                    
     time, with  the exception ...  on page 6, ...  line 11,                                                                    
     where it talks about  distributor agreement [meaning] a                                                                    
     written agreement.  In the  original language ... three                                                                    
     other words  [were] in there, which  stated "expressed,                                                                    
     implied, [and]  oral".  And  I think it's  important to                                                                    
        note that oral agreements are, ... especially in                                                                        
     Alaska, relatively common.                                                                                                 
                                                                                                                                
TAPE 01-81, SIDE B                                                                                                              
Number 2472                                                                                                                     
                                                                                                                                
MR. HAXBY went on to say:                                                                                                       
                                                                                                                                
     I'd  like to  ask for  your support  of this  bill.   I                                                                    
     think that it's  good for Alaskan businesses.   I think                                                                    
     it's  good for  Alaskan employees,  and that  it should                                                                    
     treat everyone in Alaska similar.                                                                                          
                                                                                                                                
REPRESENTATIVE   BERKOWITZ  asked   whether  anyone   with  legal                                                               
expertise intended to testify.                                                                                                  
                                                                                                                                
CHAIR ROKEBERG answered no.                                                                                                     
                                                                                                                                
REPRESENTATIVE  JAMES stated  that she  understands the  conflict                                                               
between  big businesses  and the  little businesses,  and between                                                               
the supplier  and the  person who  is having  these distributors'                                                               
products  on his  or her  shelves.   She said  she has  a lot  of                                                               
experience with  this and wished this  had been law on  the books                                                               
when she was  a bankruptcy trustee.  Also, as  an accountant, she                                                               
has seen people who have  had a distributorship taken away, which                                                               
was disastrous.   She stated that she thinks this  is a good idea                                                               
to protect Alaskan  businesses.  She noted that  she is concerned                                                               
whether having an in-state distributor will be a problem.                                                                       
                                                                                                                                
CHAIR ROKEBERG responded  that [yesterday in the  House Labor and                                                               
Commerce Standing  Committee] the  testimony was that  many times                                                               
the manufacturers end  up being distributors.  He  stated that he                                                               
had  added  [to  the  bill],  "manufacturers  with  50  or  fewer                                                               
employees," which generally covers most manufacturers in Alaska.                                                                
                                                                                                                                
REPRESENTATIVE JAMES  said she has  also worked  with wholesalers                                                               
and knows  they have rules  and regulations about whether  or not                                                               
their  product is  being  properly displayed  and  managed.   She                                                               
stated that she doesn't think  that will affect people in Alaska,                                                               
and she  doesn't think anything  in the  bill would be  an unfair                                                               
trading practice.                                                                                                               
                                                                                                                                
Number 2285                                                                                                                     
                                                                                                                                
JANEECE HIGGINS,  General Manager, Alaska Rubber  & Supply, Inc.,                                                               
testified via teleconference.  She stated:                                                                                      
                                                                                                                                
     We  had  a  signed   dealer  agreement  in  place  ....                                                                    
     Regional sales  [representatives] made oral  changes to                                                                    
     that agreement  with regard to  volume discounts.   For                                                                    
     15  years we  followed  the instructions  of the  sales                                                                    
     [representatives],  and every  month the  paperwork was                                                                    
     filed,  accepted, and  discounts  were  applied to  our                                                                    
     account.                                                                                                                   
                                                                                                                                
     The  parent company  sold the  manufacturing plant  and                                                                    
     the variances were noted.   Because we had not followed                                                                    
     the original signed  document procedures, they demanded                                                                    
     we repay  all discounts,  and when  we refused  we were                                                                    
     terminated as a  dealer.  Since the  paperwork had been                                                                    
     mailed,  the distributor  also charged  the owners  and                                                                    
     previous   general   manager   with   RICO   [Racketeer                                                                    
     Influenced  and Corrupt  Organizations Act]  violations                                                                    
     and  criminal   charges.    These  were   very  serious                                                                    
     charges.                                                                                                                   
                                                                                                                                
     We have  prevailed at  every level,  and the  ruling by                                                                    
     the court  provided that the  oral changes made  by the                                                                    
     sales representative  and accepted for 15  years by the                                                                    
     distributor, in fact, became  the new dealer agreement.                                                                    
     This  case has  been to  the 9th  Circuit, and  we have                                                                    
     prevailed at that  level as well.   Oral agreements and                                                                    
     oral changes  to existing  agreements happen  every day                                                                    
     of the business world, and  I urge you to keep language                                                                    
     in this bill to cover that issue.                                                                                          
                                                                                                                                
     As  a  side  note,  we  also have  dealers  to  set  up                                                                    
     throughout the state.  We  support them with inventory,                                                                    
     training, and  technical data.   This bill  will affect                                                                    
     us   from   both   sides  of   the   distributor-dealer                                                                    
     agreement, and we feel it is fair.                                                                                         
                                                                                                                                
CHAIR ROKEBERG asked Ms. Higgins for  the name of the case in the                                                               
9th Circuit [Court of Appeals].                                                                                                 
                                                                                                                                
MS. HIGGINS  responded that it  was Aeroquip vs. Alaska  Rubber &                                                             
Supply,  Inc.  and the  partners  were  Don Adams,  Drennon  (ph)                                                             
Adams, Tom Moore  (ph), and Alaska Interior Rubber.   It is still                                                               
being   appealed,  and   the  legal   bills  are   $1.2  million.                                                               
Furthermore,  the 9th  Circuit  upheld the  ruling  of the  lower                                                               
courts.                                                                                                                         
                                                                                                                                
CHAIR ROKEBERG asked  whether the 9th Circuit had  remanded it to                                                               
Judge Singleton [of the U.S. District Court].                                                                                   
                                                                                                                                
MS. HIGGINS answered in the affirmative.                                                                                        
                                                                                                                                
CHAIR ROKEBERG asked whether the 9th Circuit talked about the                                                                   
oral or the implied contracts.                                                                                                  
                                                                                                                                
MS. HIGGINS answered that that was the basis of the whole thing                                                                 
being upheld.                                                                                                                   
                                                                                                                                
Number 2101                                                                                                                     
                                                                                                                                
DEBORAH LUPOR testified via teleconference.  She stated:                                                                        
                                                                                                                                
     This  is  an  important  concern.    [For]  many  small                                                                    
     businesses,  one  of  their major  complaints  is  that                                                                    
     [they  don't]   have  the  time,  the   staff,  or  the                                                                    
     resources  to respond  to  legal  challenges.   Whether                                                                    
     somebody slips and  falls on the sidewalk  and sues for                                                                    
     damages, or ... on the  other side, the big guys decide                                                                    
     to  yank a  distributorship  agreement,  ... they  just                                                                    
     don't have the resources to respond.                                                                                       
                                                                                                                                
     I  want to  mention  that  in talking  to  a number  of                                                                    
     business owners, what I discovered  is that yanking the                                                                    
     distributorship  agreement  has   nothing  to  do  with                                                                    
     performance in many, many cases.   It has everything to                                                                    
     do  with  developing  new  markets.   Or  maybe  a  new                                                                    
     management  comes  in or  maybe  a  big distributor  is                                                                    
     trying to sign up somebody  in Seattle, and the Seattle                                                                    
     guy goes,  "Well, I  will take your  product only  if I                                                                    
     get the  Alaska market as  well."  And before  you know                                                                    
     it, the Alaska business,  who has trained employees and                                                                    
     built infrastructure  and has come, in  fact, to depend                                                                    
     on  this product,  ... is  suddenly, with  sometimes no                                                                    
     notice, sometimes 30 days, ...  gone.  And they're left                                                                    
     with  inventory  that  here   in  the  Municipality  of                                                                    
     Anchorage they continue to pay inventory tax [on].                                                                         
                                                                                                                                
     ...  I'm also  very concerned  about what  happens when                                                                    
     the dealer  dies and  passes his  estate on  to family.                                                                    
     They're already dealing with a  horrific loss, and then                                                                    
     to  get stuck  with huge  IRS bills  that may  actually                                                                    
     leave them in  the red with no business at  all even to                                                                    
     pay that  bill is  beyond contemplation.   I  thank you                                                                    
     for hearing this bill [and] I urge you to pass it.                                                                         
                                                                                                                                
Number 1984                                                                                                                     
                                                                                                                                
CHAIR  ROKEBERG  announced  that  [the  committee]  has  received                                                               
suggestions  for [three]  amendments.   He  noted  that they  are                                                               
issues discussed the  day before at the House  Labor and Commerce                                                               
Standing   Committee  hearing.      He   offered  the   following                                                               
corrections:  the  first one should say page 3,  line 22, instead                                                               
of [line] 16; the second one,  page 3, line 26, instead of [line]                                                               
20; and the third one, page 6, line 11.                                                                                         
                                                                                                                                
CHAIR ROKEBERG made a motion  to adopt conceptual Amendment 1, on                                                               
page 3, line 22, to  insert "without cause" following "terminates                                                               
a  distributorship  agreement".   He  explained  that this  is  a                                                               
requirement that the distributor  actually purchases the business                                                               
if there is a termination.   He said this is whether it's willful                                                               
or not.  With termination, there  would be a statutory mandate to                                                               
terminate; however, it  seems to him that there would  have to be                                                               
a termination  without cause.  If  there is a breach  of contract                                                               
on the part of the dealer,  the distributor shouldn't have to buy                                                               
the business if the dealer didn't meet his or her bargain.                                                                      
                                                                                                                                
MR. HAXBY  remarked that he  understands; however, when  this had                                                               
been  discussed with  Legislative Legal  [and Research  Services]                                                               
new issues  regarding what is "cause"  were brought up.   He said                                                               
that  had  to be  taken  out  because  they couldn't  give  every                                                               
definition for cause.                                                                                                           
                                                                                                                                
CHAIR ROKEBERG  stated that it  troubles him and asked,  if there                                                               
is a  termination because the  dealer is not  performing, whether                                                               
the distributor has to buy the dealer out.                                                                                      
                                                                                                                                
MR.  HAXBY responded  that the  value  of the  business would  be                                                               
decimated.                                                                                                                      
                                                                                                                                
CHAIR ROKEBERG  asked whether the  "crucible" of  the marketplace                                                               
would take  care of the valuation,  which is why the  House Labor                                                               
and Commerce Standing Committee deleted "good will".                                                                            
                                                                                                                                
MR. HAXBY concurred.                                                                                                            
                                                                                                                                
Number 1826                                                                                                                     
                                                                                                                                
REPRESENTATIVE BERKOWITZ remarked that  [the committee] is trying                                                               
to itemize  what the harm is  in Sections 1 and  2, and suggested                                                               
that the distributor be liable for damages incurred.                                                                            
                                                                                                                                
CHAIR ROKEBERG  said he thinks  that is difficult because  of the                                                               
nature of the inventory and the assets in the inventory.                                                                        
                                                                                                                                
REPRESENTATIVE  BERKOWITZ  noted  that   the  bill  states,  "the                                                               
distributor shall be liable for damages incurred".                                                                              
                                                                                                                                
CHAIR ROKEBERG  replied that hopefully  being more  specific will                                                               
avoid litigation.                                                                                                               
                                                                                                                                
REPRESENTATIVE   BERKOWITZ  remarked   that  it   seems  if   the                                                               
distributor chose to  disregard any of these  requirements, he or                                                               
she would go to court.                                                                                                          
                                                                                                                                
Number 1768                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES stated that  she can support purchasing back                                                               
the  inventory,   since  it  is  her   experience  that  leftover                                                               
inventory  is worth  nothing.   She  added that  she agrees  with                                                               
Representative  Berkowitz's  statement   that  [the  distributor]                                                               
should pay the  damages; however, she thinks they need  to pay at                                                               
least 85 percent of the cost of inventory.                                                                                      
                                                                                                                                
CHAIR ROKEBERG informed Representative James  that on page 2 that                                                               
is  included under  "Disposition  of  merchandise remaining  upon                                                             
contract termination."                                                                                                        
                                                                                                                                
REPRESENTATIVE  BERKOWITZ pointed  out that  AS 45.45.710  is the                                                               
buy-back  provision, and  AS 45.45.740  specifies other  damages.                                                               
He stated  that itemizing like this  can also have the  effect of                                                               
being exclusionary.                                                                                                             
                                                                                                                                
CHAIR ROKEBERG responded that it is  not damages per se; it's the                                                               
valuation of the business.                                                                                                      
                                                                                                                                
REPRESENTATIVE BERKOWITZ  replied that, for example,  there could                                                               
be  costs that  have nothing  to do  with assets,  good will,  or                                                               
machinery; it  could be the  time the individual  spent pursuing.                                                               
He  suggested  just  saying [the  distributors]  are  liable  for                                                               
damages.                                                                                                                        
                                                                                                                                
CHAIR  ROKEBERG   remarked  that   there  is  a   "without  cause                                                               
termination" and [the committee] wanted to narrow it.                                                                           
                                                                                                                                
Number 1640                                                                                                                     
                                                                                                                                
MR. HAXBY suggested  that the change not be made.   Typically, he                                                               
said, in a business valuation there  are all kinds of things that                                                               
are  taken into  account at  that time.   He  said good  will was                                                               
eliminated specifically  because it  was thought to  be something                                                               
that  was  not definable.    Most  of  the  time, in  a  business                                                               
valuation, growth  rates and  growth curves  of the  business are                                                               
looked at.   If  it is  gaining 25 percent  year over  year, then                                                               
that may have a multiple of earnings  for one business.  If it is                                                               
in  decline, however,  it would  have a  more limited  valuation.                                                               
Rather  than addressing  damages, which  are tough  to define,  a                                                               
methodology like this allows it to be accomplished more quickly.                                                                
                                                                                                                                
REPRESENTATIVE  JAMES remarked  that good  will can  be measured;                                                               
people buy businesses, including good will.                                                                                     
                                                                                                                                
CHAIR  ROKEBERG agreed  that it  can be  recognized; however,  if                                                               
there is a  termination with or without cause,  the statute would                                                               
force the distributor to pay.                                                                                                   
                                                                                                                                
REPRESENTATIVE  BERKOWITZ stated  that it  can't be  done without                                                               
cause.   He  expressed that  every agreement  is governed  by the                                                               
covenant of good faith and fair dealing.                                                                                        
                                                                                                                                
CHAIR ROKEBERG  responded that he  thinks the contract has  to be                                                               
respected here.                                                                                                                 
                                                                                                                                
REPRESENTATIVE  BERKOWITZ stated  that a  distributor can't  just                                                               
cut somebody off  without suffering consequences.   When there is                                                               
a breach of the implied covenant,  then the question arises as to                                                               
what the damages are.  In  most instances when there are disputes                                                               
between  parties, the  parties are  allowed to  "hammer out"  the                                                               
differences amongst  themselves.  [The legislature]  tries not to                                                               
mandate,  through   the  legal   system,  specific   results  for                                                               
instances between types  of parties.  Here,  [the legislature] is                                                               
trying to  deal with  a contract dispute,  and should  be careful                                                               
about prescribing a result.                                                                                                     
                                                                                                                                
CHAIR ROKEBERG remarked that he  thinks [the committee] is trying                                                               
to narrow the issues.                                                                                                           
                                                                                                                                
Number 1499                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES stated that  Chair Rokeberg is talking about                                                               
a small business  in Alaska with a  huge distributorship Outside,                                                               
and this  small business has no  opportunity to go to  court.  If                                                               
something is  in state  law, [the  distributors] will  change the                                                               
way they do business with Alaska.                                                                                               
                                                                                                                                
CHAIR ROKEBERG agreed and said  that is why [the committee] wants                                                               
to add machinery and assets into the bill.                                                                                      
                                                                                                                                
MR. HAXBY noted that other states have laws similar to this.                                                                    
                                                                                                                                
REPRESENTATIVE  BERKOWITZ  remarked  that   this  is  what  "tort                                                               
reform" was  about.  [The  legislature] took away  some "hammers"                                                               
from the small businessperson by limiting punitive damages.                                                                     
                                                                                                                                
Number 1416                                                                                                                     
                                                                                                                                
CHAIR ROKEBERG withdrew conceptual Amendment 1.                                                                                 
                                                                                                                                
[Amendment 2, which  was not offered, would have  amended page 3,                                                               
line  26; it  read:   "Insert  the words  'good will,'  following                                                               
'including'".]                                                                                                                  
                                                                                                                                
CHAIR ROKEBERG made a motion to adopt Amendment 3, which read:                                                                  
                                                                                                                                
     Page 6, Line [11]                                                                                                          
                                                                                                                                
     Delete the words "a written agreement"                                                                                     
                                                                                                                                
       Insert the words "an agreement, whether expressed,                                                                       
     implied, oral, or written,"                                                                                                
                                                                                                                                
[The foregoing  was corrected  regarding the  change to  line 11,                                                               
and   would  place   the  language   following  "'distributorship                                                               
agreement' means".]                                                                                                             
                                                                                                                                
REPRESENTATIVE  BERKOWITZ   suggested  that   it  say   "a  valid                                                               
agreement".                                                                                                                     
                                                                                                                                
CHAIR  ROKEBERG offered  that the  amendment could  read, "to  be                                                               
consistent  with  a  valid  agreement   that's  enforced  by  UCC                                                               
[Uniform Commercial Code]".                                                                                                     
                                                                                                                                
REPRESENTATIVE BERKOWITZ stated, "within parameters."                                                                           
                                                                                                                                
CHAIR ROKEBERG  remarked that he  is concerned about  that, given                                                               
the history of this case from Ms. Higgins.                                                                                      
                                                                                                                                
REPRESENTATIVE BERKOWITZ  responded that  with her case  there is                                                               
implied contract and there is detrimental reliance.                                                                             
                                                                                                                                
CHAIR ROKEBERG stated  that there is some type of  an addition to                                                               
the contract because of the implied actions of the parties.                                                                     
                                                                                                                                
Number 1335                                                                                                                     
                                                                                                                                
REPRESENTATIVE MEYER  stated that  [the House Labor  and Commerce                                                               
Standing Committee]  spent a lot of  time on this, and  he was on                                                               
the  opposite side  from  Chair  Rokeberg.   He  noted that  [the                                                               
committee] thought  if a person were  to go into business  with a                                                               
large corporation, it should be in writing.                                                                                     
                                                                                                                                
CHAIR  ROKEBERG responded  that according  to the  witness today,                                                               
this common business activity doesn't  necessarily mean "you have                                                               
to go  around and amend your  contract every time you  have a ...                                                               
long-term relationship."                                                                                                        
                                                                                                                                
REPRESENTATIVE  MEYER said  this is  supposed to  be written  for                                                               
future events,  and he thinks  [the legislature] would  want more                                                               
people  to put  their agreements  in writing,  rather than  doing                                                               
them orally and by handshake.                                                                                                   
                                                                                                                                
REPRESENTATIVE JAMES stated:                                                                                                    
                                                                                                                                
     You  wouldn't  get one  because  the  salesman has  the                                                                    
     right.   He's on  the grounds  to make  this agreement,                                                                    
     has the  rationale, ... and  is authorized to do  it in                                                                    
     this particular case.   And then he  notifies that this                                                                    
     has been  changed and this  is happening.  If  that had                                                                    
     gone  back to  the  place where  they  got the  written                                                                    
     agreement, they'll never get one.                                                                                          
                                                                                                                                
REPRESENTATIVE KOOKESH  remarked that  he doesn't have  a problem                                                               
with [Chair Rokeberg's] valid agreement with the UCC.                                                                           
                                                                                                                                
Number 1222                                                                                                                     
                                                                                                                                
REPRESENTATIVE COGHILL said [the  committee] should study how the                                                               
UCC  deals with  contracting some  of  the oral  agreements.   He                                                               
suggested  adding  the  expressed, implied,  oral,  [or  written]                                                               
language.                                                                                                                       
                                                                                                                                
REPRESENTATIVE  MEYER objected  to  Amendment 3  [as written  and                                                               
provided in committee packets].                                                                                                 
                                                                                                                                
CHAIR ROKEBERG remarked  that he thinks this is the  right way to                                                               
go, and is willing to go to UCC language.                                                                                       
                                                                                                                                
REPRESENTATIVE BERKOWITZ  asked, assuming Amendment 3  passes and                                                               
[the committee] finds that it  crosses wires with the controlling                                                               
case law, whether [Chair Rokeberg]  would help repair the problem                                                               
on the [House] floor.                                                                                                           
                                                                                                                                
CHAIR ROKEBERG answered  that he would, but  doesn't think [there                                                               
will be a problem].                                                                                                             
                                                                                                                                
REPRESENTATIVE MEYER  stated that he  thinks it is  poor business                                                               
practice to not have an agreement in writing.                                                                                   
                                                                                                                                
Number 0940                                                                                                                     
                                                                                                                                
A roll call vote was  taken.  Representatives Berkowitz, Kookesh,                                                               
James,  Coghill, and  Rokeberg  voted in  favor  of Amendment  3.                                                               
Representative Meyer voted against  it.  [Representative Ogan was                                                               
absent.]  Therefore, Amendment 3 was adopted by a vote of 5-1.                                                                  
                                                                                                                                
Number 0925                                                                                                                     
                                                                                                                                
REPRESENTATIVE  JAMES  moved  to  report HCS  CSSB  176(L&C),  as                                                               
amended,  out of  committee with  individual recommendations  and                                                               
the accompanying  zero fiscal  note.   There being  no objection,                                                               
HCS CSSB 176(JUD) was reported  from the House Judiciary Standing                                                               
Committee.                                                                                                                      
                                                                                                                                
ADJOURNMENT                                                                                                                   
                                                                                                                                
Number 0902                                                                                                                     
                                                                                                                                
There being no  further business before the  committee, the House                                                               
Judiciary Standing Committee meeting was adjourned at 6:35 p.m.                                                                 

Document Name Date/Time Subjects