Legislature(1995 - 1996)

03/15/1995 01:09 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
               HOUSE JUDICIARY STANDING COMMITTEE                              
                         March 15, 1995                                        
                           1:09 p.m.                                           
                                                                               
 MEMBERS PRESENT                                                               
                                                                               
 Representative Brian Porter, Chairman                                         
 Representative Joe Green, Vice Chairman                                       
 Representative Con Bunde                                                      
 Representative Bettye Davis                                                   
 Representative Al Vezey                                                       
 Representative Cynthia Toohey                                                 
 Representative David Finkelstein                                              
                                                                               
 COMMITTEE CALENDAR                                                            
                                                                               
 HB 115:  "An Act relating to settlement and payment of claims for             
          minimum wage and overtime compensation claims and to                 
          liquidated damages and attorney fees for minimum wage and            
          overtime compensation claims."                                       
                                                                               
          PASSED OUT OF COMMITTEE                                              
                                                                               
 HB 153:  "An Act relating to the surety bond for certain judicial             
          officers."                                                           
                                                                               
          PASSED OUT OF COMMITTEE                                              
                                                                               
 HB 151:  "An Act relating to magistrate jurisdiction in presumptive           
          death proceedings."                                                  
                                                                               
          PASSED OUT OF COMMITTEE                                              
                                                                               
 HB 150:  "An Act relating to receipts for bail forfeited in                   
          satisfaction for certain offenses."                                  
                                                                               
          PASSED OUT OF COMMITTEE                                              
 HJUD - 03/15/95                                                               
  HB 25:  "An Act revising Rule 16, Alaska Rules of Criminal                   
          Procedure, relating to discovery and inspection in                   
          criminal proceedings, to adopt the comparable federal                
          rule."                                                               
                                                                               
          SCHEDULED BUT NOT HEARD                                              
 WITNESS REGISTER                                                              
                                                                               
 REPRESENTATIVE PETE KOTT                                                      
 Alaska State Legislature                                                      
 State Capitol, Room 432                                                       
 Juneau, AK 99801-1182                                                         
 Telephone:  (907) 465-3777                                                    
 POSITION STATEMENT:  Sponsor of HB 115                                        
                                                                               
 PAM NEIL, President                                                           
 Alaska State Chamber of Commerce                                              
 217 2nd Street, Suite 201                                                     
 Juneau, AK 99801                                                              
 Telephone:  (907) 586-2323                                                    
 POSITION STATEMENT:  Testified in favor of HB 115                             
                                                                               
 SHERRI GOLL, Lobbyist                                                         
 Alaska Women's Lobby                                                          
 P.O. Box 210685                                                               
 Anchorage, AK 99521                                                           
 Telephone:  (907) 274-2010                                                    
 POSITION STATEMENT:  Opposed HB 115                                           
                                                                               
 REED STOOPS                                                                   
 Lynden, Incorporated                                                          
 100 Mount Roberts                                                             
 Juneau, AK 99801                                                              
 Telephone:  (907) 586-6600                                                    
 POSITION STATEMENT:  Provided written testimony in favor of HB 115            
                                                                               
 C.J. ZANE, Past Director                                                      
 Community Relations and Government Affairs                                    
 Holland America Lines                                                         
 Address and phone not available                                               
 POSITION STATEMENT:  Testified in favor of HB 115                             
                                                                               
 BOB BLASCO, Attorney                                                          
 Robertson Monagle and Eastaugh                                                
 240 Main Street, Suite 800                                                    
 Juneau, AK 99801                                                              
 Telephone:  (907) 586-3340                                                    
 POSITION STATEMENT:  Testified in favor of HB 115                             
                                                                               
 MR. FLANNIGAN, Special Assistant                                              
 Office of the Commissioner                                                    
 Department of Labor                                                           
 P.O. Box 21149                                                                
 Juneau, AK 99802-1149                                                         
 Telephone:  (907) 465-2700                                                    
 POSITION STATEMENT:  Testified in favor of HB 115                             
                                                                               
 ANNE CARPENETI, Committee Aide                                                
 House Judiciary Committee                                                     
 Alaska State Legislature                                                      
 State Capitol, Room 120                                                       
 Juneau, AK 99801-1182                                                         
 Telephone:  (907) 465-4990                                                    
 POSITION STATEMENT:  Provided information on HB 115                           
 CHRIS CHRISTENSEN, General Counsel                                            
 Alaska Court System                                                           
 303 K Street                                                                  
 Anchorage, AK 99501                                                           
 Telephone:  (907)  264-8228                                                   
 POSITION STATEMENT:  Introduced HB 150, HB 151 and HB 153                     
                                                                               
 PREVIOUS ACTION                                                               
                                                                               
 BILL:  HB 115                                                               
 SHORT TITLE: DAMAGES & ATTY FEES FOR UNPAID WAGES                             
 SPONSOR(S): LABOR & COMMERCE                                                  
                                                                               
 JRN-DATE     JRN-PG                  ACTION                                   
 01/25/95       130    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 01/25/95       130    (H)   LABOR & COMMERCE, JUDICIARY                       
 01/30/95              (H)   L&C AT 03:00 PM CAPITOL 17                        
 01/30/95              (H)   MINUTE(L&C)                                       
 02/01/95              (H)   MINUTE(L&C)                                       
 02/03/95       230    (H)   L&C RPT 2DP 2DNP 2NR 1AM                          
 02/03/95       231    (H)   DP: PORTER, KOTT                                  
 02/03/95       231    (H)   DNP: ELTON, SANDERS                               
 02/03/95       231    (H)   NR: ROKEBERG, MASEK                               
 02/03/95       231    (H)   AM: KUBINA                                        
 02/03/95       231    (H)   2 ZERO FISCAL NOTES (LAW, LABOR)                  
 02/15/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 03/15/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
                                                                               
 BILL:  HB 153                                                               
 SHORT TITLE: BONDS FOR JUDGES                                                 
 SPONSOR(S): JUDICIARY BY REQUEST                                              
                                                                               
 JRN-DATE     JRN-PG                  ACTION                                   
 02/03/95       236    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 02/03/95       236    (H)   JUDICIARY                                         
 03/03/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 03/03/95              (H)   MINUTE(JUD)                                       
 03/15/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
                                                                               
 BILL:  HB 151                                                               
 SHORT TITLE: MAGISTRATE PRESUMPTIVE DEATH JURISDICTION                        
 SPONSOR(S): JUDICIARY BY REQUEST                                              
                                                                               
 JRN-DATE     JRN-PG                  ACTION                                   
 02/03/95       236    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 02/03/95       236    (H)   JUDICIARY                                         
 03/03/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 03/03/95              (H)   MINUTE(JUD)                                       
 03/15/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
                                                                               
 BILL:  HB 150                                                               
 SHORT TITLE: RECEIPTS FOR BAIL FORFEITURES                                    
 SPONSOR(S): JUDICIARY BY REQUEST                                              
                                                                               
 JRN-DATE     JRN-PG                  ACTION                                   
 02/03/95       236    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 02/03/95       236    (H)   JUDICIARY                                         
 03/03/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 03/03/95              (H)   MINUTE(JUD)                                       
 03/15/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
                                                                               
 BILL:  HB  25                                                               
 SHORT TITLE: CRIMINAL DISCOVERY RULES                                         
 SPONSOR(S): REPRESENTATIVE(S) PARNELL, Porter, Green, Bunde                   
                                                                               
 JRN-DATE     JRN-PG                  ACTION                                   
 01/06/95        27    (H)   PREFILE RELEASED                                  
 01/16/95        27    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 01/16/95        27    (H)   JUDICIARY, FINANCE                                
 01/18/95        75    (H)   COSPONSOR(S): GREEN                               
 01/19/95        89    (H)   COSPONSOR(S): BUNDE                               
 01/27/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 01/27/95              (H)   MINUTE(JUD)                                       
 01/30/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 01/30/95              (H)   MINUTE(JUD)                                       
 02/01/95              (H)   FIN AT 01:30 PM HOUSE FINANCE 519                 
 02/06/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 02/06/95              (H)   MINUTE(JUD)                                       
 02/08/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 02/08/95              (H)   MINUTE(JUD)                                       
 02/13/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 02/13/95              (H)   MINUTE(JUD)                                       
 02/15/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
                                                                               
 ACTION NARRATIVE                                                              
                                                                               
 TAPE 95-30, SIDE A                                                            
 Number 000                                                                    
                                                                               
 The House Judiciary Standing Committee was called to order at 1:09            
 p.m. on Wednesday, March 15, 1995.  All members were present except           
 for Representative Bunde, who arrived at 1:50 p.m.  CHAIRMAN BRIAN            
 PORTER stated that the following bills would be heard:  HB 115, HB            
 153, HB 151, and HB 150.                                                      
 HJUD - 03/15/95                                                               
 HB 115 - DAMAGE AND ATTY FEES FOR UNPAID WAGES                              
                                                                               
 CHAIRMAN PORTER called Representative Pete Kott to come forward and           
 introduce HB 115.                                                             
                                                                               
 REPRESENTATIVE PETE KOTT, sponsor of HB 115, introduced the bill.             
 This is an act related to the Alaska Wage and Hour Act as it                  
 relates to minimum wage and overtime compensation, and subsequent             
 awarding of liquidated damages.  Until recently, aggrieved                    
 employees seeking to enforce their rights to overtime compensation            
 for minimum wage had several avenues to obtain redress.  They could           
 settle the matter directly with their employers, they could file a            
 complaint with the Department of Labor (DOL), or they could take              
 their employers to Superior Court and sue them.  Employees who                
 elected to settle their claims directly with their employers had              
 the option of waiving all or part of their liquidated damages.                
 This is a key part of this proposal.  There was some flexibility              
 built into statute prior to the 1991 Kinney court case.  At that            
 point in time, the Supreme Court of Alaska interpreted the law to             
 cause a significant change to the way we were doing business.  Part           
 of the decision was that full liquidated damages would be required            
 in all settlements, even when the employer acted in good faith.               
 This is a significant component of what we are trying to change               
 here.   Measure HB 115 seeks to cure a couple of deficiencies.                
 First, the bill grants to the court, in actions filed pursuant to             
 the Alaska Wage and Hour Act the discretion to award less than full           
 liquidated damages.  It also may decline to award liquidated                  
 damages at all.  This is a good feature of this proposal as it                
 allows some discretion.  But even if the court has the discretion,            
 and the burden of proof is met by the employer by showing they                
 acted in good faith and with reasonable grounds, the court still              
 has the discretion to award full or partial liquidated damages.  It           
 is not a guarantee.  There is still a lot of discretion that rests            
 with the court.                                                               
                                                                               
 REPRESENTATIVE KOTT said, secondly, what this legislation attempts            
 to do is to allow the DOL the opportunity to negotiate with the               
 employer on behalf of the employee.  They also can omit all or part           
 of the liquidated damages.  That is if the employee agrees to the             
 settlement that is negotiated by DOL.  Third, we are trying to                
 institute the provision whereby employees may directly settle with            
 their employers, providing that the employer meets certain                    
 safeguards, laid out in the bill, that are granted to the employee.           
 If the employer does in fact, provide those safeguards, and the               
 employee is in agreement, then they can promulgate the settlement,            
 thereby, preventing this measure from going back to DOL, or into              
 court.  Finally, the last significant component of the bill changes           
 existing law with respect to the award of attorney fees and costs.            
 As the law now stands, reasonable attorney fees and costs are                 
 awarded to the prevailing party.  This measure would award attorney           
 fees and costs to whichever party prevails under existing court               
 rules.  Those are the major four components of the bill.  We are              
 primarily trying to take ourselves back to the "pre-Kinney" days,           
 allowing for some flexibility and discretion within the system.               
 When we look at it from a rational approach, those opportunities              
 for discretion and flexibility should curb the amount of litigation           
 in our courts.                                                                
                                                                               
 Number 170                                                                    
                                                                               
 PAM NEIL, President, Alaska State Chamber of Commerce, spoke in               
 support of HB 115, and provided written testimony as follows:                 
                                                                               
 "As Alaska law now stands, an employer who is in violation of the             
 state's minimum wage and overtime compensation laws is                        
 automatically liable for liquidated damages, regardless of the                
 circumstances.                                                                
                                                                               
 "In federal Fair Labor Standards Act (FLSA), the court may waive              
 liquidated damages in whole or in part if it can be shown that the            
 employer acted reasonably and in good faith.  An Alaska Supreme               
 Court interpretation of Alaska's Wage and Hour Act prevents the               
 courts and the Commissioner of the Alaska Department of Labor from            
 applying this standard of fairness.                                           
                                                                               
 "Under the provisions proposed in HB 115, employees will still be             
 fully protected under the law, but the courts and the Commissioner            
 will be allowed to consider the circumstances of a case in                    
 determining the awarding of liquidated damages.                               
                                                                               
 "The Alaska State Chamber of Commerce believes that HB 115 will               
 bring fairness to this section of the law, and we urge passage of             
 this legislation."                                                            
                                                                               
 Number 200                                                                    
                                                                               
 SHERRI GOLL, Lobbyist, Alaska Women's Lobby, spoke in opposition to           
 the bill.  We are trying to return to the days before the court               
 decided on a case where the employer settled with numerous                    
 employees for 30 cents on the dollar.  Take into consideration the            
 position of a minimum wage or hourly wage worker, in relationship             
 to the employer, and what kind of a level playing field they have.            
 We called that settlement over-reaching and contrary to the                   
 policies and purposes of the Federal and State Wage an Hour Acts.             
 Referring to the FLSA, the changes proposed today are contrary to             
 the protections of the federal level, and the protections that have           
 been provided here in Alaska.  Alaska has a long history of                   
 protecting its workers.  That is why we have things like mandatory            
 liquidated damages.  It is not really an accident.  It is a stiff             
 penalty for people who violated the wage and hour laws.  Think                
 about a person who is an employee, making minimum or hourly wage.             
 When they have a claim, the laws are not so complex that an                   
 employer cannot become familiar with these laws, and then provide             
 the appropriate overtime or wages that are appropriate under the              
 law.  When one of these workers has a claim, they should have                 
 access to the courts, to have the employer be able to say, "Well,             
 if you take me to court, I'll put every lawyer that I can think of            
 on this case, and when you lose, you will have to pay for all of my           
 lawyers."  The fact is that the FLSA says that the prevailing                 
 plaintiff will receive the attorneys fees.  It does not provide for           
 the defendant to recover attorney fees.  We are not talking about             
 people of equal bargaining power.  The reason this is a women's               
 lobby issue is the fact that many people who are in these                     
 categories of work are women, and it is going to be very difficult            
 for a woman who is not paid properly to go up against an employer             
 and risk losing her home in order to collect a couple of thousand             
 dollars that is fairly owed to her.  We are tipping the balance,              
 and making it far more difficult for low wage earning people to               
 have a fair hearing.                                                          
                                                                               
 Number 300                                                                    
                                                                               
 REED STOOPS, delivered a letter on behalf of Lynden, Incorporated:            
                                                                               
 "Lynden, Inc. is one of Alaska's major employers.  We have reviewed           
 the bill through our counsel, Bogle and Gates, and believe that is            
 a fair and reasonable mechanism to settle compensation claims in              
 good faith disputes with employees.                                           
                                                                               
 "Thank you for considering this legislation and we urge legislative           
 approval this session."                                                       
                                                                               
 Number 315                                                                    
                                                                               
 C.J. ZANE, Past Director, Community Relations and Government                  
 Affairs, Holland America Lines, explained he currently is a                   
 contractor representing Holland America, Alyeska Pipeline, and a              
 service company in Washington D.C.  He said he has been working on            
 this legislation for two years.  Mr. Zane explained the committee             
 substitute before is the result of some good faith negotiations and           
 compromises between employers, the State Chamber of Commerce, and             
 others who support this legislation.  They had many meetings with             
 Commissioner Cashen of the DOL, and his assistant, Ed Flannigan.              
 Tireless effort was put into reaching a compromise.  To summarize,            
 this bill is nothing more than an attempt to restore some balance             
 and fairness in the way that employers deal with overtime claims.             
 The bill does four things.  It allows for, in very restrictive                
 instances, the employer or defendant to recover, possibly, some               
 attorney's fees from the plaintiff, but only in the most egregious            
 situations.  This committee substitute would allow only those                 
 attorney's fees to be collected by the employer/defendant, only in            
 a case where they have:  1. outright won the case; 2. where there             
 has been a previous offer of judgment; and 3. they can show by                
 clear and convincing evidence that they acted in good faith.  It is           
 a very restrictive category of cases whereby the defendant/employer           
 would be able to collect those fees.  The other thing the bill does           
 is allow for private settlements.  The current bill, as opposed to            
 the committee substitute, does not.  It compromises further,                  
 inasmuch as the department wished to be able to supervise and to              
 review those private settlements.  The employers agreed to that               
 provision, so it is currently in the committee substitute.  The               
 bill also allows for a good faith and reasonable belief defense               
 against the automatic doubling or litigated damages.  In previous             
 versions, preponderance of evidence was the standard required, and            
 in this committee substitute, the standard used is clear and                  
 convincing evidence, a tougher standard, to prove that the employer           
 operated in good faith and reasonable belief.                                 
                                                                               
 CHAIRMAN BRIAN PORTER asked Mr. Bob Blasco to describe changes made           
 in the committee substitute since he had worked on it.                        
                                                                               
 Number 400                                                                    
                                                                               
 BOB BLASCO, Attorney, Roberts, Monagle and Eastaugh, began to speak           
 in favor of the bill.                                                         
                                                                               
 REPRESENTATIVE DAVID FINKELSTEIN stopped Mr. Blasco and asked him             
 what his firm's interest was in this legislation.  He asked which             
 participant his firm represents.                                              
                                                                               
 MR. BLASCO answered that he was hired by Holland America, as a                
 consultant, and so forth.                                                     
                                                                               
 CHAIRMAN PORTER noted that Mr. Flannigan was present to keep Mr.              
 Blasco honest.                                                                
                                                                               
 MR. BLASCO noted the committee substitute is attempting more                  
 compromises.  First, the committee substitute applies only to                 
 overtime compensation claims, whereas the original bill applied to            
 all minimum wage and overtime compensation claims.  The next major            
 change, 3(d), is that portion requiring that any court application            
 of anything other than full damage, and liquidated damages,                   
 requires the employer to make a clear and convincing evidence show            
 of good faith.  That is a change from the preponderance of evidence           
 requirement in the original bill.  The next two portions, under               
 (e), as Mr. Zane had pointed out, the other bill would have just              
 applied court rules as they apply now - whoever is the prevailing             
 party then gets whatever costs and fees they are entitled to.  This           
 committee substitute has compromised that considerably to where,              
 first the clear and convincing evidence standard would continue to            
 apply, and the circumstances would be such where the employer has             
 made an effort to settle the case by making a reasonable offer of             
 judgement; which, in fact, has been refused by the employee; and              
 then the employee recovers either nothing or less than the offer              
 that has been made by the employer.  In those circumstances, we get           
 to sections 1 and 2, and eventually to Section (f), where either              
 there is no award of attorney fees, or if we have all of those                
 situations  existing, where the employer, as a defendant, has                 
 prevailed entirely, meaning nothing has been awarded to the                   
 employee, and had made an offer anyway;  which, obviously was an              
 effort to settle, even though there was no liability at all, and              
 the plaintiff employee is unable to demonstrate to the court that             
 the case was brought in good faith to begin with;  then in those              
 circumstances the court may award attorney fees according to court            
 rule, as it now exists.  Section (j) gives the ability to have a              
 private settlement between an employer and employee, if the DOL has           
 reviewed it.                                                                  
                                                                               
 Number 490                                                                    
                                                                               
 REPRESENTATIVE FINKELSTEIN asked what Section (j) was trying to               
 resolve.                                                                      
                                                                               
 Number 495                                                                    
                                                                               
 CHAIRMAN PORTER answered there are three areas mentioned here that            
 he will be offering amendments on.  These amendments would                    
 basically return the language to what was originally agreed upon.             
                                                                               
 REPRESENTATIVE AL VEZEY wanted to know why anyone felt that version           
 F was superior.  He thought it was a step backwards.                          
                                                                               
 MR. BLASCO said Version F was the result of a good faith effort by            
 a number of parties working closely with DOL, to come up with                 
 agreeable language.                                                           
                                                                               
 REPRESENTATIVE JOE GREEN asked if the sponsor had reviewed the                
 committee substitute, and if he agreed with it.                               
                                                                               
 REPRESENTATIVE KOTT did agree with the changes in the committee               
 substitute, and understood there would be a couple of amendments              
 which he would probably support also.                                         
                                                                               
 REPRESENTATIVE GREEN offered "Work Draft F" as the committee's                
 working document.  Hearing no objection, it was so ordered.                   
                                                                               
 Number 540                                                                    
                                                                               
 REPRESENTATIVE FINKELSTEIN asked Mr. Flannigan about the idea of              
 having the settlement review be automatically approved, when not              
 disapproved.  What will this mean in practice, for the department?            
 Will there be time to review these?                                           
                                                                               
 ED FLANNIGAN said that issue, as well as the 30 day time frame,               
 should be addressed.  This was one of their major concerns.   They            
 do not want to have these private settlements that the department             
 never sees.  When they asked their Wage and Hour people if this was           
 something they could do in 60 days, they replied they could do it             
 within 30 days.                                                               
                                                                               
 REPRESENTATIVE FINKELSTEIN asked what the minimum would be that a             
 plaintiff would get out of this.                                              
                                                                               
 MR. FLANNIGAN answered they would get the minimum owed to them, and           
 attorneys fees by court rule, rather than reasonable attorneys                
 fees; assuming employers met the good faith standard.                         
                                                                               
 Number 735                                                                    
                                                                               
 CHAIRMAN PORTER said he had three amendments to offer.  He asked              
 Anne Carpeneti to describe the first one.                                     
                                                                               
 ANNE CARPENETI, Judiciary Committee Aide, Alaska State Legislature,           
 described the first amendment.  In Work Draft Version F, on page 2,           
 line 16, eliminate paragraph 1, and continue with subsection (e),             
 to read, "unless the defendant shows by clear and convincing                  
 evidence that the act or omission giving rise to the action was               
 made in good faith, and that the defendant had reasonable grounds             
 for believing that the act or omission was not in violation of AS             
 23.10.060, in which case, (1), the court may award attorneys fees             
 to the plaintiff in accordance with court rules; or (2), if the               
 defendant would be entitled to attorneys fees if the action were              
 subject to the standards under court rule offers of judgment, in              
 which case, neither the plaintiff or the defendant is entitled to             
 attorneys fees."                                                              
                                                                               
 CHAIRMAN PORTER said basically what they are doing is just taking             
 the parentheses away from line 16, number 1, making lines 15 and 16           
 flow together without the "(1)" in between.  Then we are putting a            
 (1) between the words "case" and "the", on line 19, and continuing            
 on then with (2).  The effect of that basically is to establish for           
 sure that the standard of clear and convincing evidence applies to            
 both (1) and (2), and not to just (1).  This makes the intent                 
 clear.  He offered his amendment.  Hearing no objection, the was              
 adopted.                                                                      
                                                                               
 MS. CARPENETI explained Amendment Number 2:  On page 2, subsection            
 (g), beginning on line 31, instead of the language in that                    
 subsection in work draft "F", the following language would be                 
 inserted:                                                                     
                                                                               
 TAPE 95-30, SIDE B                                                            
 Number 000                                                                    
                                                                               
 MS. CARPENETI continued.  "Failure to inquire into Alaska law is              
 not consistent with a claim of good faith under this subsection."             
                                                                               
 CHAIRMAN PORTER asked if there was objection.  Hearing none, it was           
 so ordered.                                                                   
                                                                               
 Number 036                                                                    
                                                                               
 MS. CARPENETI explained Amendment Number 3:  On page 3 of Work                
 draft "F" on line 17, the sentence beginning, "If the Department              
 does not act within 30 days after receiving the agreement, the                
 agreement is considered approved."  That language would be omitted,           
 and the following would be inserted, "The Department will approve             
 or deny an agreement within 30 days of receipt."                              
                                                                               
 Hearing no objection, the amendment was adopted.                              
 Number 080                                                                    
                                                                               
 REPRESENTATIVE FINKELSTEIN offered Amendment Number 4:                        
                                                                               
 To: CSHB 115(JUD) "C" version dated 3/14/95                                   
                                                                               
 Page 1, line 2:                                                               
      Delete "and attorney fees"                                               
                                                                               
 Page 1, line 3:                                                               
      Delete "; and amending Alaska Rules of Civil Procedure 68 and            
      82"                                                                      
                                                                               
 Page 1, line 10, through page 2, line 4:                                      
      Delete all material.                                                     
                                                                               
 Renumber the following bill sections accordingly.                             
                                                                               
 Page 2, lines 13 - 30:                                                        
      Delete all material.                                                     
                                                                               
 Reletter the following subsections accordingly.                               
                                                                               
 Page 2, line 31:                                                              
      Delete "(d) - (f)"                                                       
      Insert "(d) and (e)"                                                     
                                                                               
 Page 3, line 19:                                                              
      Delete "AS 23.10.110(i), added by sec. 3"                                
      Insert "AS 23.10.110(g), added by sec. 2"                                
                                                                               
 Page 3, line 21:                                                              
      Delete "AS 23.10.110(j), added by sec. 3"                                
      Insert "AS 23.10.110(h), added by sec. 2"                                
                                                                               
 Page 3, lines 25 - 31:                                                        
      Delete all material.                                                     
                                                                               
 REPRESENTATIVE VEZEY objected.                                                
                                                                              
 REPRESENTATIVE FINKELSTEIN explained the obvious rationale.  These            
 are not the salaried employees of the state.  These are, generally            
 speaking, people who are having a tough time, and because we are              
 only talking about prevailing cases, these are only cases where               
 they were right, and the employer was wrong.  They did not get paid           
 overtime when they deserved it.  We ought to let them come out of             
 the process with at least the money they should have been paid, and           
 their attorney fees.  That is reasonable.                                     
                                                                               
 A roll call vote was taken.  Representatives Finkelstein and Davis            
 voted yes.  Representatives Toohey, Vezey, Bunde, Green, and Porter           
 voted no.  Amendment Number 4 failed on a vote to two to five.                
 Number 200                                                                    
                                                                               
 REPRESENTATIVE FINKELSTEIN offered Amendment Number 5:  It                    
 basically returns all attorneys fees to Amendment Number 4, version           
 "C.1".                                                                        
                                                                               
 CHAIRMAN PORTER objected and asked for a roll call vote.                      
 Representatives Finkelstein and Davis voted yes.  Representatives             
 Toohey, Vezey, Bunde, Green, and Porter voted no.  Amendment Number           
 5 failed on a vote of two to five.                                            
                                                                               
 REPRESENTATIVE BUNDE made a motion to move CSHB 115(JUD), as                  
 amended, with individual recommendations, out of committee.                   
                                                                               
 Hearing no objection, CSHB 115 moved out of committee.                        
 HJUD - 03/15/95                                                               
 HB 153 - BONDS FOR JUDGES                                                   
                                                                               
 Number 350                                                                    
                                                                               
 CHRIS CHRISTENSEN, General Counsel, Judicial Branch, Alaska Court             
 System, presented HB 153.  At the present time we have a 1959                 
 statute that provides that a district judge and magistrate shall              
 execute and file a surety bond, which the state will pay for.  The            
 purpose of the surety bond for government officials is to guarantee           
 that the judge or any other official will well and faithfully                 
 perform the duties of the office.  Unlike insurance, which only               
 provides coverage for negligent acts, the surety bond basically               
 protects the public in the event that a public official commits               
 intentional misconduct, as well as simple acts of negligence.  The            
 state law, written in 1959, required district judges and                      
 magistrates to provide a surety bond, but not Supreme Court                   
 Justices, or Superior Court Judges.  The court system discontinued            
 the practice of providing special bonds for these two classes of              
 judges about two decades ago, when the Division of Risk Management            
 and the Department of Administration began purchasing a blanket               
 bond to cover all state employees, including all judges, all                  
 legislators, all bureaucrats in all three branches.  At the present           
 time, Risk Management obtains a surety which provides about                   
 $20,000,000 worth of coverage per occurrence.  They have only had             
 one or two claims in the last 14 years, and those were for                    
 misconduct by state contractors, not for misconduct by state                  
 employees.  The premiums for this bond are very small, given the              
 coverage amounts, because of the lack of claims.  Because AS                  
 22.15.260 is obsolete, it does not reflect the way the state                  
 currently provides bonds for judges; HB 153 simply proposes its               
 repeal.  Some other statutes on the books date back to the same               
 subject for Executive Branch employees.  This bill does not touch             
 those, but they are handled basically the same way.                           
                                                                               
 REPRESENTATIVE BUNDE made a motion to move HB 153, with a zero                
 fiscal note and individual recommendations.  Hearing no objection,            
 HB 153 was passed from committee.                                             
 HJUD - 03/15/95                                                               
 HB 151 - MAGISTRATE PRESUMPTIVE DEATH JURISDICTION                          
                                                                               
 Number 410                                                                    
                                                                               
 CHRIS CHRISTENSEN explained that this bill is also a technical                
 change, a cleanup, as it were.  AS 20.215.120 purports to set forth           
 the complete jurisdiction of magistrates.  However, over the years,           
 a new statute may be added someplace else, increasing the                     
 jurisdiction of magistrates, and the bill drafters forget to cross            
 reference this statute.  A review of the presumptive death statutes           
 which are in Title 9, indicates that magistrates do have                      
 jurisdiction in presumptive death cases.  These are cases where an            
 interested person alleges that someone has disappeared, and after             
 diligent search, cannot be found.  If it appears to the                       
 satisfaction of the district judge or the magistrate that the                 
 circumstances surrounding the disappearance afford reasonable                 
 grounds that the person has suffered death from accidental or other           
 violent means, it will be presented to a six person coroner's jury.           
 If a unanimous jury finds sufficient evidence to presume that the             
 missing person is dead, and the judge or magistrate approves the              
 finding, then after a period of six months have elapsed, then the             
 person would be presumed deceased.  Essentially, Title 9 gives                
 magistrates this authority.  They have been doing it now, for                 
 decades.  To clean up the language, we would like to make it clear            
 by adding the same language to AS 22.15.100, since that is where              
 people normally look when they want to see what a magistrate can              
 do.                                                                           
                                                                               
 REPRESENTATIVE CYNTHIA TOOHEY made a motion to move HB 151 out of             
 committee with individual recommendations and a zero fiscal note.             
 Hearing no objection, it was so ordered.                                      
 HJUD - 03/15/95                                                               
 HB 150 - RECEIPTS FOR BAIL FORFEITURES                                      
                                                                               
 Number 450                                                                    
                                                                               
 CHRIS CHRISTENSEN explained as money becomes shorter and the state            
 is trying to ratchet down its activities a little bit, we are                 
 constantly looking for ways, perhaps to decrease the judicial case            
 load and the clerical work load.  That is the motivation for this             
 piece of legislation.  Back in the 1970s, the legislature enacted             
 a system by which a person cited for a traffic offense, instead of            
 showing up in court, wasting everybody's time, could simply mail in           
 a certain amount, and that would take care of the ticket.  The                
 Supreme Court was authorized to determine which particular traffic            
 offenses could meet this without a court appearance, and they                 
 established a fine for each offense.  The bill continually refers             
 to "bail".  He was not sure why they call it "bail," it is really             
 a fine, not bail.  So do not confuse this with what we normally               
 think of as bail.  Initially, the statute required the court system           
 to provide a receipt to any person who paid their fine by mail.               
 There are roughly 45,000 or 50,000 of these people a year.  You can           
 imagine how much it costs to have clerks type up a receipt, put it            
 in an envelope, and mail it out 50,000 times.  It was so costly, we           
 developed a receipt stamp which we would put on the back of a                 
 person's check.  Since even this costs money when you do it that              
 many times a year, the legislature repealed a receipt requirement             
 back in 1987.  However, even though we are no longer an obligation            
 to provide receipts to people who mail in traffic tickets, we                 
 always will do that if requested.  Over the years, a number of                
 other mail in bail statutes have been passed, authorizing the                 
 payment of fines by mail.  This bill concerns itself with those               
 citations in the area of birth defect warning signs, fish and game            
 violations, smoking in public violations, parks and recreational              
 facilities violations, and oversized vehicle violations.  There are           
 roughly 10,000 citations issued each year in these areas that you             
 are allowed to pay by mail, if you are ticketed.  The problem is,             
 the court system has been getting complaints from banks, telling              
 them they are not supposed to be putting stamps on the backs of               
 checks.  Accordingly, HB 150 amends these five statutes to require            
 the court system to provide a receipt, if requested.  This is the             
 same requirement the legislature imposed for violations of the                
 alcohol/beverage title a few years ago.                                       
                                                                               
 REPRESENTATIVE BUNDE noted it is commonly accepted in the real                
 world that a cancelled check is a receipt.                                    
                                                                               
 REPRESENTATIVE FINKELSTEIN made a motion to move HB 150 out of                
 committee with individual recommendations and the zero fiscal note.           
 Hearing no objection, it was so ordered.                                      
 ADJOURNMENT                                                                   
                                                                               
 The House Judiciary Committee adjourned at 2:30 p.m.                          
                                                                               

Document Name Date/Time Subjects