Legislature(1999 - 2000)
04/29/1999 03:10 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE April 29, 1999 3:10 p.m. MEMBERS PRESENT Representative Pete Kott, Chairman Representative Joe Green Representative Norman Rokeberg Representative Jeannette James Representative Lisa Murkowski Representative Eric Croft Representative Beth Kerttula MEMBERS ABSENT All members present COMMITTEE CALENDAR * HOUSE BILL NO. 214 "An Act relating to litigation involving correctional facilities; and amending Rules 59(f), 60(b), 62, and 65, Alaska Rules of Civil Procedure." - HEARD AND HELD HOUSE BILL NO. 135 "An Act relating to use of eavesdropping and recording devices by peace officers." - MOVED CSHB 135(JUD) OUT OF COMMITTEE HOUSE JOINT RESOLUTION NO. 6 Proposing amendments to the Constitution of the State of Alaska relating to state aid for education. - MOVED HJR 6 OUT OF COMMITTEE (* First public hearing) PREVIOUS ACTION BILL: HB 214 SHORT TITLE: PRISON LITIGATION SPONSOR(S): REPRESENTATIVES(S) MULDER Jrn-Date Jrn-Page Action 4/27/99 1027 (H) READ THE FIRST TIME - REFERRAL(S) 4/27/99 1027 (H) JUD 4/29/99 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 135 SHORT TITLE: POLICE USE OF EAVESDROPPING DEVICES SPONSOR(S): REPRESENTATIVES(S) KOTT Jrn-Date Jrn-Page Action 3/12/99 438 (H) READ THE FIRST TIME - REFERRAL(S) 3/12/99 438 (H) JUDICIARY 4/09/99 (H) JUD AT 1:00 PM CAPITOL 120 4/09/99 (H) SCHEDULED BUT NOT HEARD 4/21/99 (H) JUD AT 1:00 PM CAPITOL 120 4/21/99 (H) HEARD AND HELD 4/21/99 (H) MINUTE(JUD) 4/29/99 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HJR 6 SHORT TITLE: CONST. AM: EDUCATION FUNDING SPONSOR(S): REPRESENTATIVES(S) KOHRING, Coghill Jrn-Date Jrn-Page Action 1/19/99 17 (H) PREFILE RELEASED 1/15/99 1/19/99 17 (H) READ THE FIRST TIME - REFERRAL(S) 1/19/99 17 (H) HES, JUDICIARY, FINANCE 2/05/99 146 (H) COSPONSOR(S): COGHILL 3/16/99 (H) HES AT 3:00 PM CAPITOL 106 3/16/99 (H) SCHEDULED BUT NOT HEARD 3/23/99 (H) HES AT 3:00 PM CAPITOL 106 3/23/99 (H) HEARD AND HELD 3/23/99 (H) MINUTE(HES) 4/01/99 (H) HES AT 3:00 PM CAPITOL 106 4/01/99 (H) MEETING CANCELED 4/10/99 (H) HES AT 10:00 AM CAPITOL 106 4/10/99 (H) MOVED OUT OF COMMITTEE 4/10/99 (H) MINUTE(HES) 4/12/99 724 (H) HES RPT 1DP 4NR 4/12/99 724 (H) DP: COGHILL; NR: GREEN, MORGAN, DYSON, 4/12/99 724 (H) WHITAKER 4/12/99 724 (H) FISCAL NOTE (GOV) 4/26/99 (H) JUD AT 1:00 PM CAPITOL 120 4/26/99 (H) HEARD AND HELD 4/29/99 (H) JUD AT 1:00 PM CAPITOL 120 WITNESS REGISTER REPRESENTATIVE ELDON MULDER Alaska State Legislature Capitol Building, Room 507 Juneau, Alaska 99801 Telephone: (907) 465-2647 POSITION STATEMENT: Testified as sponsor of HB 214. DEAN GUANELI, Chief Assistant Attorney General Legal Services Section-Juneau Criminal Division Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 Telephone: (907) 465-3428 POSITION STATEMENT: Testified on HB 214 and explained proposed amendments. GERALD LUCKHAUPT, Attorney Legislative Legal and Research Services Legislative Affairs Agency 130 Seward Street, Suite 409 Juneau, Alaska 99801 Telephone: (907) 465-2450 POSITION STATEMENT: Answered questions on HB 214. ACTION NARRATIVE TAPE 99-45, SIDE A Number 0001 CHAIRMAN PETE KOTT called the House Judiciary Standing Committee meeting to order at 3:10 p.m. Members present at the call to order were Representatives Kott, Rokeberg, Croft and Kerttula. Representatives Murkowski, Green and James arrived at 3:12 p.m., 4:35 p.m. and 4:44 p.m., respectively. HB 214 - PRISON LITIGATION CHAIRMAN KOTT announced that the first item of business would be House Bill No. 214, "An Act relating to litigation involving correctional facilities; and amending Rules 59(f), 60(b), 62, and 65, Alaska Rules of Civil Procedure." Number 0067 REPRESENTATIVE ELDON MULDER, Alaska State Legislature, sponsor, explained that HB 214 is largely modeled after a federal statute that sought to accomplish the same end. It provides that court decisions affecting Alaska's prison system be as direct and unobtrusive as possible to the overall operations of the prison system. Currently, as seen with the Cleary case, judicial judgments are allowed to make broad, sweeping requirements of the entire system in order to solve specifically identified, nonsystemic problems within the Department of Corrections (DOC). REPRESENTATIVE MULDER noted that HB 214 requires that any court orders or consent decrees be limited in scope, to include only the specific problems or issues contained in the original complaint. It also requires the court to consider the overall effect of its decisions on the management of, and fiscal impact upon, the department. Alaska's constitution clearly states that the legislature has the exclusive right to appropriation, he said. Recent court orders and consent decrees that require certain levels of funding and services, however, are in direct conflict with the legislature's exclusive appropriation powers. Representative Mulder commented, "And I'm sure we all remember the ... ongoing battle that we've had with the court in relation to noncompliance, and being fined, and paying the fines back to ourselves." REPRESENTATIVE MULDER told members that the far-reaching effects of court orders and consent decrees have also conflicted with the administrative branch's requirement to manage state facilities and to carry out several constitutional goals of prison administration. While the legislature recognizes the judiciary's ability to ensure the constitutional rights of Alaska's prison population, it also recognizes that a constitutional separation of powers and duties allows the state to effectively carry out its function. Representative Mulder said that HB 214 will hopefully accomplish that goal. REPRESENTATIVE MULDER stated his belief that the DOC doesn't really run its own institutions, which instead are run by a court-appointed monitor who determines what the right conditions are, including appropriate population levels within each institution, whether meals should be hot, and a myriad of other considerations, to determine whether the state is in compliance. This has set up a fundamental problem in trying to administer the DOC. Representative Mulder expressed the belief that HB 214 will go a long way towards restoring control to the commissioner. REPRESENTATIVE MULDER pointed out that Alaska's prison system is successful and progressive, not antiquated, and he isn't seeking, to return the state to the Dark Ages. Rather, he is trying to retain a balance within this prison system and its funding, recognizing that every dollar the state must spend for prisoners, beyond what it would normally spend, otherwise could go for roads, education, universities or other essential services, especially when there are huge budget deficits. He noted that Mr. Luckhaupt, drafting attorney, had done a lot of research over the years regarding the national model of the Prisoner Litigation Reform Act (PLRA), and was available for questions. Number 0389 REPRESENTATIVE CROFT asked, "What do you mean we pay fines to ourselves? How does the Cleary fine work?" REPRESENTATIVE MULDER replied, "It was a matter where the court ordered us to pay fines for overcrowding at a certain preset amount, over millions of dollars each year. And we'd end up appropriating the money -- well, the House would take the action, where we'd actually appropriate it and ... appropriate it back to ourselves, because ... there was no entity to receive it. And the Senate just flat refused to make the appropriation at all. ... She [Judge Hunt] was fining us with no definite end recipient, other than the general fund." Number 0444 REPRESENTATIVE CROFT asked if, in the House version of that, the legislature would write a check to the court system for the fine and then appropriate the money back from the court system to wherever they want. REPRESENTATIVE MULDER clarified that it would be to the general fund. REPRESENTATIVE CROFT asked whether that is much of a deterrent. REPRESENTATIVE MULDER replied, "Not really, and I think Judge Hunt recognized that." Number 0470 REPRESENTATIVE ROKEBERG asked why the monitor remained in place even after the finance committees and the subcommittee on corrections made an agreement the previous year regarding sending prisoners to Florence, Arizona, to get relief from Cleary. REPRESENTATIVE MULDER responded with his interpretation that they had reached a critical point with the court-appointed monitor and the court. The judge, increasingly impatient with the noncompliance, was deliberating about either taking money from the general fund, for some undetermined action or forcing the early release of prisoners. Representative Mulder stated: And when working with the department, and with the Governor's office - he appealed directly to us, asking us to take the leap of faith and try and ... come in full compliance with capacity levels, which cost us somewhere between $8 and $10 million - it was with the hope or desire that ... the court-appointed monitor would leave. And I believe that is still going to be the action taken by the department, after we leave this spring. But, heretofore, that has still not happened. And, as you've read the paper recently, the court-appointed monitor is still finding problems, and will probably continue to find problems with the prison system. ... We think ... we've complied. They will continue to find little things that they feel are not in compliance, in my estimation. And I have great fear whether we would ever be able to petition the court ... to get ourselves out of Cleary. Number 0644 REPRESENTATIVE MURKOWSKI asked whether the consent decree in HB 214 is open-ended in duration. REPRESENTATIVE MULDER affirmed that. REPRESENTATIVE MURKOWSKI inquired whether anything in it would allow that if situations changed, the consent decree would no longer be in force. REPRESENTATIVE MULDER deferred to Mr. Guaneli and Mr. Luckhaupt. Number 0689 REPRESENTATIVE MURKOWSKI asked if Representative Mulder's understanding is that it could possibly continue in perpetuity. REPRESENTATIVE MULDER noted that the legislature had passed a resolution several years ago, requesting the Department of Law to go to court, in an appeal to have this removed; the department hasn't taken that action yet. He pointed out that the Department of Law would be testifying that day, largely in support of HB 214, which they believe would enhance their position in court, he said, were they to go forward and do that. Number 0730 REPRESENTATIVE ROKEBERG asked how much the legislature has increased the DOC's budget, both by percentage and dollar amounts, since the Cleary settlement. REPRESENTATIVE MULDER indicated he would provide those numbers, which are substantial. REPRESENTATIVE ROKEBERG asked if there has ever been a court challenge regarding the court's ability to make appropriations, which is what he believes has happened here, in effect, by overstepping its powers to mandate appropriations. REPRESENTATIVE MULDER answered, "The only way to effectively do that, I believe, Representative Rokeberg, is to get ourselves out from underneath the consent decree, because the court would say by joining into the consent decree we implicitly agreed to ... provide these certain functions." REPRESENTATIVE ROKEBERG asked whether the legislature had agreed to that. REPRESENTATIVE MULDER said no, the Department of Law did. The legislature has never agreed to a consent decree, and has repeatedly tried to reflect that position to the courts and to the Department of Law. Number 0848 REPRESENTATIVE ROKEBERG noted that the latest complaints by the monitor were regarding the Arizona facility under contract. He asked if it has been the policy, or is part of the settlement, that any privately owned correctional facilities would not be under Cleary. REPRESENTATIVE MULDER replied that although the DOC still maintains that the outside facility doesn't fall under Cleary, the judge has ruled otherwise, in the court monitor's favor. Number 0915 REPRESENTATIVE MULDER advised members that the Department of Law had requested amendments. He specified that he had no problems with the first two, but would like some discussion on the third. Number 0940 DEAN GUANELI, Chief Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law, reminded members that running a prison system is perhaps one of the most difficult tasks of government. It is particularly difficult in Alaska because the state not only does what most states do in running a standard penitentiary system, but it also takes over functions usually handled at the county level, which is running jails. In many instances, jails are more difficult to run, because of the hundreds or thousands of people in and out yearly. Therefore, the state needs the utmost flexibility to run its prison system. MR. GUANELI emphasized the difficulty that the legislature has in putting together a budget every year, particularly when revenues are wildly cyclical. These two functions - the executive branch actually running the prison and the legislative branch setting the policies and fiscal constraints - set up a certain amount of tension. In addition, the courts sometimes get involved in these cases and must resolve certain legal issues that arise. MR. GUANELI advised members that the Alaska Supreme Court has recognized that the courts shouldn't be involved in the day-to-day running of the prison, which is an executive branch function. "That generally has not been our experience in the trial court, in superior courts," he added. "Many people don't know it, but we actually went to trial in the Cleary case in 1984. As a result of that trial, the judge found that we had one of the safest, most humane systems in the country, and it was not overcrowded at the time. But, the judge said, '... Even though it is not unconstitutionally overcrowded now, I think it is going to be in the future, and, therefore, I am going to impose certain limits ... on the population.'" MR. GUANELI said as a result of that order and getting back into negotiations with the plaintiffs, the state ultimately entered into the Cleary consent decree, agreeing to certain population caps that actually were higher than the caps that the judge was going to impose. Therefore, the state got a better deal out of negotiation than the judge was going to impose. MR. GUANELI told members that legislation like HB 214 takes the court out of that role. In the first instance, it requires that the court find that some current unconstitutional condition that justifies taking action. Even then, this legislation recognizes that the landscape may change completely in a couple of years, including changes in population, facilities, staffing or budgets. All of those executive and legislative branch activities are really beyond the court's control, and after a couple of years, the court's decision may be out of date. Under HB 214, the state is allowed back into court after two years, asking that a order be terminated; if the plaintiffs can't show that conditions are still unconstitutional, the court is obligated to terminate its order. MR. GUANELI explained that all states have the same system of court rules allowing that unusual, unexpected changed circumstances justify some relief; it is only rarely that states can get out of these court orders. Under Alaska law, it has to be an extraordinary circumstance to allow getting out of an order, and it must be proved that it would be unfair to make compliance with the order continue. Furthermore, that is a discretionary decision by the court, and those kinds of discretionary decisions are rarely overruled. This kind of situation has been hampering state correctional facilities and legislatures all over the country. It led Congress to adopt this kind of legislation at the federal level. Mr. Guaneli commended Representative Mulder for introducing this needed legislation. MR. GUANELI addressed how HB 214 would apply to consent decrees or orders issued in the past. After a one-year period following the effective date of this Act, the state could make a motion to terminate any existing court decrees. Unless the plaintiffs could prove that there are still unconstitutional conditions, the judge would be obligated to terminate the order. That provides the plaintiffs a year to gather evidence, Mr. Guaneli said, and it recognizes that conditions change. He noted that the three proposed amendments were in writing. Number 1271 CHAIRMAN KOTT asked Mr. Guaneli to walk the committee through what the court looked at to determine whether there would be future overcrowded conditions. He asked if there is any correlation with what has happened nationwide, particularly in the federal system, and if Alaska's system is being overburdened. Number 1305 MR. GUANELI restated that there had been a trial in this case; after a six-week trial in 1984, the judge issued his decision in 1985 that there was anticipated overcrowding. The judge set certain population limits, based on expert testimony from both parties at the trial. Although there are general standards that the experts ordinarily apply, it isn't an exact science. Square footage standards aren't hard and fast, and also considered must be the condition of the facilities, including plumbing, lighting and ventilation, as well as the training level of the staff and the other programs that are available for inmates. The decision is highly subjective. In this case, after the judge considered those factors and decided upon population levels, after a time the state got back into negotiations with the plaintiffs, who actually agreed to higher population limits than the judge had decided upon. MR. GUANELI pointed out that it is often difficult to compare conditions in Alaska with those in other states. Although many states have received federal funding and built new prisons, many others have had their prison systems challenged based upon their antiquated, decrepit or dangerous facilities, or upon dangerous levels of overcrowding and conditions far worse than Alaska's. MR. GUANELI expressed belief that as the DOC gets more sophisticated in classifying inmates - as far as who needs maximum security and who needs minimum security, for example, and to segregate certain inmates from others - the better they will be able to control the populations and handle higher populations levels in their facilities. That factor also changes over time, he said, and the DOC has found an ability to handle a few more inmates than they believed they could handle several years ago. Because it is a moving target, the utmost flexibility is needed to run the system, which legislation like HB 214 would provide. Number 1476 CHAIRMAN KOTT asked if there was a nationwide movement at the time of Cleary regarding challenges to prison systems. MR. GUANELI replied that this has been going on for 25 years. Beginning in the mid-1970s, prison systems, particularly in the South and East, were hit with a large number of challenges. Even now state systems, under the federal counterpart to this type of legislation, are getting out of consent decrees. "But there are other systems, Texas being one that is continually being hit with more and more lawsuits because they continue to run their systems in really deplorable ways," he told members. "I'm not saying all of their facilities are, but certain of them are, and the judges ... keep hammering them. At least ... under the federal legislation now, a judge hammers the state of Texas, ... they've got two years to kind of get their act in shape, and then they can get out of the judgment if things are okay after two years. At least they aren't burdened with that kind of order in perpetuity, which has been the case in the past." Number 1541 REPRESENTATIVE KERTTULA asked what the consent decree on population was, and whether Mr. Guaneli has a rough breakdown on that. MR. GUANELI explained that it is set out in the Cleary judgment itself, and there have been subsequent modifications. As facilities change slightly, the population limits change. They vary by facility, setting out both a maximum operating capacity and an emergency capacity. The department is required to do certain things when the population hits each of those levels; after a certain level is hit, and after a certain number of facilities hit that level, then the fines start to be imposed. Mr. Guaneli pointed out that the fines are no longer being imposed, however, because the legislature gave money to transport prisoners to Arizona, which reduced the population in in-state facilities. But it is conceivable that could happen again. Number 1596 REPRESENTATIVE KERTTULA requested numbers or examples from the time when the state was fined for overcrowding. MR. GUANELI responded that although he couldn't provide that immediately, he certainly could provide a large amount of data on that, perhaps focusing on a specific facility. He noted that the department had kept excellent records about how much, as a percentage, they were over the capacities on a daily basis for the several years; all that is available. Number 1637 REPRESENTATIVE ROKEBERG referred to Representative Mulder's mention of a resolution asking the Department of Law to bring an action on this issue. He asked what the direction was, and whether they had heard from the attorney general about that. MR. GUANELI responded that a specific provision in the Cleary agreement itself says that if conditions have significantly changed, the state can go back and ask the court to modify the judgment; it is the same as the provision under Rule 60 of the Alaska Rules of Civil Procedures, which allows parties to go back and ask courts to change their judgments. A body of case law has arisen around that rule, giving judges direction as to how to interpret and apply it, and in what circumstances. Mr. Guaneli explained: It was our judgment that we would not prevail if we brought that action too prematurely. ... Once enough prisoners had been sent to the Arizona, and the population level in the state had been lowered, we were hoping to bring that kind of action under the current court rules, and give the judge an opportunity to modify the order. Unfortunately, what has happened is the court and the court monitor now believe that the Arizona facility falls under Cleary, as well. They think that there are problems at that facility. And so, again, we don't find ourselves in the kind of good litigation posture to bring that kind of motion. ... We just don't think we're going to win, and we don't think the court is going to allow us to keep bringing that motion time and time again. We want to put ourselves in the best position to do that. ... We haven't had the situation where we think we can win that, and ... we don't want to try unless we think we can win. MR. GUANELI said that kind of situation has faced a number of states, which therefore are turning to this kind of legislation to force the courts to look at whether there are current unconstitutional conditions that justify continuing such an order. Number 1758 REPRESENTATIVE ROKEBERG referred to his own conversation with the warden at "CCA," in particular, saying one of the biggest concerns was the requirement for certain specific due process steps before punishing an offending prisoner. He asked Mr. Guaneli to explain that issue and what the Cleary settlement required the people on-site to do. MR. GUANELI responded that in 1975, the Alaska Supreme Court issued an opinion that established certain requirements for the DOC to go through in order to discipline a prisoner. Those requirements differ from those applied by courts in other states or the U.S. Supreme Court. The DOC adjusted to that precedent and now, after 25 years, rather takes it in stride. However, it was new for the private prison in Arizona, which hasn't similarly taken it in stride. Mr. Guaneli believes that it is a source of tension. He pointed out that it was not specifically in Cleary. REPRESENTATIVE ROKEBERG suggested it is subsumed under it, though, because it differs from what happens nationally. He asked Mr. Guaneli to address the fact that Cleary wasn't assumed to be enforced in private facilities, and to explain how the change came about. MR. GUANELI pointed out that the Cleary agreement itself, which is 1/2-inch thick, contains specific definitions of what facilities it applies to. He stated: We believe that the wording in those definitions was pretty crystal-clear that it would not apply to a facility that's operated by somebody else. It doesn't apply to halfway houses, it doesn't apply to community jails not operated by the Department of Corrections, and it wouldn't apply to a private prison. The judge, however, ruled - after the plaintiffs asked her to rule this way - that, in essence, it was unfair to, quote, deprive a prisoner of their rights under the Cleary settlement by involuntarily transferring them to a prison outside the state of Alaska, where Cleary might not apply. The judge thought that that was unfair, thought that perhaps there was some ambiguity in the definition, and therefore applied the decision to ... the facility in Arizona. ... It was not a result that we ever anticipated. We always thought that if it was another facility, operated by someone else, that the Cleary settlement would not apply. ... But, in fact, it does at the present time. Number 1921 CHAIRMAN KOTT asked whether that is just for those who were involuntarily transferred. MR. GUANELI said he believes the voluntariness was one factor that the judge looked at in determining that Cleary applies. However, it applies to any Alaska prisoner in the entire facility, whether or not an individual volunteered to go. At the time of transfer, most of the inmates didn't want to go, Mr. Guaneli pointed out, although he believes that many of them have found that it isn't bad. Number 1948 REPRESENTATIVE MULDER asked Mr. Guaneli what he estimates it costs the Department of Law to try to determine compliance with Cleary. MR. GUANELI replied that since the time of trial, about 12 years, the department has probably had the equivalent of one full-time attorney working on nothing but Cleary, costing several hundred thousand dollars in state salaries. For the trial itself, the DOC hired outside counsel from San Francisco to work with the Department of Law, costing another few hundred thousand dollars. He emphasized the further costs to the DOC, which has people at every facility who are specifically designated to determine whether there is compliance with the agreement, and who collect and submit records, an enormous undertaking. Number 2007 REPRESENTATIVE KERTTULA referred to page 3, lines 8 through 10, which read: "Preliminary injunctive relief shall automatically expire 90 days after the entry of the order unless the court orders final relief in the civil action before the expiration of the 90-day period." She asked if Mr. Guaneli could provide any other examples where preliminary injunctions work that way, noting that she herself is more used to natural resource cases, in which an injunction stays in effect throughout the case unless the parties come back in or something has changed. MR. GUANELI replied that he doesn't know that there is another example under state law, although there is certainly a provision under the federal PLRA. He said it goes back to the underlying theory of the bill that courts shouldn't enter orders against state prison systems unless there are unconstitutional conditions. He pointed out that the standards for getting a preliminary injunction or a temporary restraining order, in contrast, don't require proof of an unconstitutional condition, just that there are serious and substantial questions. He suggested that in this type of case, as long as the case wasn't frivolous, there would likely be some kind of injunction, which ought to be temporary, not lasting more than 90 days unless it can be proved that there is something unconstitutional, in which case the judge ought to rule. Number 2080 REPRESENTATIVE KERTTULA asked what happens with the prospective relief section, which is right under that in the bill. She asked whether it is correct that prospective relief has to be only for a current violation. MR. GUANELI affirmed that the legislation would require the judge to find some current violation of a state or federal right. He clarified that when he says "unconstitutional conditions," the standard in here is a state or federal right, which includes a violation of state law. Therefore, violation of a statute would also justify relief. The bill prevents the type of situation that occurred in 1985, when the judge said Alaska had one of the safest, most humane systems in the country but nonetheless entered an order based on what he believed was going to happen. Number 2121 REPRESENTATIVE KERTTULA asked what happens if it is known that a situation will occur one week hence. She then suggested that perhaps the section about a consent order or private settlement agreement overcomes that. MR. GUANELI agreed that there is a provision for a private settlement, where the parties get together and themselves agree, although it is not enforceable in court. He explained that the third amendment proposed by the department, with which the sponsor had not expressed agreement, would allow the state to continue to enter into consent decrees even with no finding of an unconstitutional condition. This is simply a matter of litigation tactics, he said. The federal PLRA doesn't allow consent decrees, as it doesn't allow the parties to get together and have the judge order something, unless the judge makes an absolute finding of an unconstitutional condition. The federal PLRA was strongly supported by states nationwide, except for Texas, where they said, "You're tying our hands. We want to be able to go in there and negotiate, because we think we can get a better deal from the plaintiffs' attorneys than from the judge." MR. GUANELI said that has really come back to haunt the state of Texas, where they are constantly in court because these issues can't be settled out of court through a consent decree. The one advantage with HB 214 that after two years the consent decree can be terminated, he pointed out, if the state goes in and if no unconstitutional conditions can be proved. It is, therefore, a two-year consent decree rather than a 12-year consent decree, as Cleary has been. That is Amendment 3, he concluded, which is just a matter of litigation tactics. Number 2255 REPRESENTATIVE ROKEBERG made a motion to adopt Amendment 1, which reads as follows: 1. Page 3, lines 20-22: Replace the sentence beginning with "prospective relief ..." with the following: "Prospective relief must be modified upon the motion of a party whenever, and to the extent, the findings required by this section no longer apply to one or more provisions of the prospective relief then in effect." 2. Page 3, line 26: Insert the words "modify or" between "to" and "terminate." CHAIRMAN KOTT objected for discussion purposes. Number 2262 MR. GUANELI explained that Amendment 1 would set a more certain standard for courts to apply when the state is moving for partial termination or modification of a consent decree, rather than termination of the entire decree. The standard on page 3, lines 20-22, can be tightened up a little, and that is what the amendment does. He noted that the Cleary settlement is a hundred pages long, and the state believes itself to be in compliance with all but the population caps. If HB 214 had been in effect two years ago, he added, the state could have gone in and had all of the Cleary settlement - perhaps except for the population caps - set aside. Number 2310 REPRESENTATIVE CROFT asked about the legal distinction between the original wording and the newly proposed language. MR. GUANELI explained that the department felt that the wording "no longer justify the imposition" perhaps could be interpreted to allow an exercise of more judicial discretion than is justified. He said he believes that the entire subsection requires a judge to find certain definite things and then allows the judge to ask whether those justify the imposition or not. The question is: Do the findings apply to these provisions, or don't they? If they do apply, then the order can stay in effect. If they don't apply, however, then that part of the order must go. REPRESENTATIVE CROFT expressed his understanding that those are the four conditions in subsection (a). MR. GUANELI affirmed that. He suggested it is a fairly minor point. REPRESENTATIVE CROFT reviewed those four conditions, then said he still has a hard time understanding the distinction. Number 2397 REPRESENTATIVE KERTTULA commented that she was having the same trouble, although she thinks an argument could be made either way as to whether "apply" or "justify" is broader. Number 2409 CHAIRMAN KOTT withdrew his objection and asked if there was any further objection. There being none, Amendment 1 was adopted. Number 2416 REPRESENTATIVE ROKEBERG made a motion to adopt Amendment 2, which reads as follows: Page 4, line 18: replace the word "prison" with "correctional facilities" CHAIRMAN KOTT objected for discussion purposes. MR. GUANELI told members it was felt that this legislation should apply broadly to all correctional facilities. Whereas the term "prison" tends to be interpreted as a larger facility holding longer-term prisoners, broadening it to "correctional facilities" would allow it to apply to community jails, for example, providing the benefit of this legislation to all facilities. Number 2450 REPRESENTATIVE CROFT asked whether the word "prison" is used elsewhere in the bill. TAPE 99-45, SIDE B Number 0001 MR. GUANELI noted that the phrase "civil action with respect to prison conditions" probably rolls off the tongue easier than does "civil action with respect to conditions in correctional facilities," which is why he believes it was used there. However, when they actually go in and define it, the broader term "correctional facilities" is the appropriate language. Number 0019 REPRESENTATIVE MURKOWSKI pointed out that whereas the title says "litigation involving correctional facilities," AS 09.19.200 on page 2 is titled "Prison litigation." MR. GUANELI responded that the titles of legislation have no substantive impact. He indicated there was probably a feeling that a more commonly used term is better for titles, whereas in substantive definitions the more specific would be preferable. CHAIRMAN KOTT asked if Mr. Guaneli was satisfied with the term "prison litigation" used in AS 09.19.200. MR. GUANELI affirmed that, indicating the department is also satisfied with the other references. Number 0065 REPRESENTATIVE ROKEBERG recounted that in five years on the budget subcommittee, he doesn't recall ever talking about "prisons." He said the term of art in the state seems to be "correctional facilities," and he wonders if there is a statutory distinction between the two. MR. GUANELI responded that he believes "correctional facilities" is the broadest term in the statutes, particularly in Title 33, relating to the DOC. He clarified that he isn't suggesting that this will apply to halfway houses that are run by private individuals; for those, their contracts with the state will largely determine how they are handled. Number 0112 REPRESENTATIVE ROKEBERG asked whether "prison" is defined under statute. CHAIRMAN KOTT suggested that Mr. Luckhaupt could help with that. He said he had the same question, noting that the McGinnis case talks about the administration of the "state prison system." He asked if that is the correct term of art in discussing jails. Number 0132 MR. GUANELI pointed out that "prison" in other states usually applies to the penitentiaries, whereas the jail system is separate. "Correctional facilities" applies to a broader range. He asked for confirmation by Mr. Luckhaupt. Number 0143 GERALD LUCKHAUPT, Attorney, Legislative Legal and Research Services, Legislative Affairs Agency, clarified that Alaska has no definition of "prison" in statutes. "Correctional facilities" is used in Title 33 in reference to Alaska's correctional facilities. "Correctional facility" means any place where the commissioner decides to put anybody, he said, and "state correctional facility" means any correctional facility run by the state. He told members his own choice of words regarding prison litigation was modeled basically after the federal Act, which talks about prison litigation; that applies both to places normally thought of as prisons, where people are serving sentences, and to jails. No distinction is made in the federal Act between a prison and a jail. He added, "In Alaska, we don't make any distinction, but prison just seems to sound a little better to the public." MR. LUCKHAUPT pointed out that the title or short title of any section isn't law, by statute. Only the language of each section of statute itself is law. Although the titles can be changed at any time, the Revisor of Statutes has the ultimate authority, under the statutes, to make that choice. Number 0228 CHAIRMAN KOTT asked if the use of "state prison system" in the bill correlates to the decision in McGinnis v. Stevens. MR. LUCKHAUPT noted that in the 1960s and 1970s, there were "prisons" in Alaska. "We then entered the enlightened era of deciding we didn't have prisons anymore, but we had correctional facilities," he noted. Mr. Luckhaupt pointed out that many states now use the term "correctional facilities" rather than "prisons," and "wardens" have become "superintendents." CHAIRMAN KOTT asked if there is a distinction between "prison conditions" and "jail conditions." MR. LUCKHAUPT said he doesn't believe the prisoners think there is a difference. [There was laughter.] Number 0290 REPRESENTATIVE ROKEBERG said the definition under AS 33.30.901 of a correctional facility says a prison, jail, camp, farm, halfway house, group home or other placement designated by the commissioner for custody, care or discipline of prisoners. He expressed concern that by leaving "prison" in there, a distinction will be assumed regarding the applicability of the new statute. MR. GUANELI said that was the specific reason for Amendment 2. "We think that making that change in the definition, only, ... so that the phrase, 'civil action with respect to prison conditions,' applies broadly to all correctional facilities, ... that that's the appropriate place to make that change," he stated. "And it's not necessary to make it throughout the rest of the bill. We certainly could, though." REPRESENTATIVE ROKEBERG proposed defining "prison" for the purpose of this section. Number 0336 MR. LUCKHAUPT suggested just changing it in the other two places, then, and doing a definition in the committee substitute. He restated that it makes no substantive difference. Number 0405 REPRESENTATIVE KERTTULA said she sees somewhat the same issue with the definition of "prisoner" in Title 33, which also leaves out "correctional facility" and just includes "official detention." She said she doesn't know if there is a need to keep the two parallel, but she believes they should look at it and be certain. Number 0421 MR. LUCKHAUPT explained that the definition of "prisoner" in AS 33.30 had been expanded for this, as a result of discussions between himself and Michael Stark of the Department of Law, to ensure that also covered under this Act are prisoners being held for federal or other jurisdictions. They had decided to add in anyone who is confined in a correctional facility. Also in the definition of AS 33.30, not included are prisoners held under the authority of municipal law. Mr. Luckhaupt stated, "We added that in here to make sure that those people are covered by this Act, and any lawsuits they bring - and potential consent decrees that result therefrom - would be covered by this Act." MR. GUANELI agreed that the intent, which he believes is being accomplished, is to expand both of those definitions, so that it covers as many facilities and prisoners in those facilities as possible. He acknowledged that it gets a bit complicated, though. Number 0513 CHAIRMAN KOTT said he understands and appreciates the intent, but he isn't as confident that the intent has been accomplished. He asked whether Representative Rokeberg was satisfied with the explanation. Number 0524 REPRESENTATIVE ROKEBERG restated that the term "correctional facility" is used as a broad-brush term around the corrections subcommittee. He expressed the desire to not cause confusion but said he would rely on Mr. Luckhaupt's judgment. Number 0557 MR. LUCKHAUPT suggested that the committee just tell him to replace "prison" in the two places it appears with "correctional facility." As Mr. Guaneli had said, it would also be changing the term being defined to read, "litigation involving conditions in correctional facilities," for example. He said now that he thinks about it, that sounds better. CHAIRMAN KOTT said he was convinced, agreeing that it probably clears up ambiguity. Number 0594 REPRESENTATIVE ROKEBERG made a motion to adopt a conceptual amendment "to accede to the definition suggestions of legislative counsel." CHAIRMAN KOTT noted that they were changing "prisons" to "correctional facilities" and doing the corresponding change regarding conditions. He withdrew his objection to Amendment 2, then specified that the conceptual amendment is inclusive of Amendment 2, broadening it to clarify that nobody is slipping by. There being no objection, Chairman Kott announced that [Conceptual] Amendment 2 was adopted. Number 0633 REPRESENTATIVE ROKEBERG made a motion to adopt Amendment 3, which reads as follows: 1. Page 2, line 15: Insert "and (e)" after "(b)" 2. Page 4, line 3: Insert the following at the beginning of this subsection: "Notwithstanding (a) of this section, in a civil action with respect to prison conditions, a court may order prospective relief as provided in a consent decree without complying with (a) of this section. In addition," 3. Page 4, line 3: change the P in "Parties" to a lower case p. CHAIRMAN KOTT objected for discussion purposes. MR. GUANELI referred to his earlier testimony and said the intent is to allow the state to enter into consent decrees when it can predict that it would lose in court, to avoid being in the position of the state of Texas, where they are forced to go in and lose these cases in court. Number 0666 REPRESENTATIVE MULDER asked Mr. Guaneli if the national model includes this language. MR. GUANELI said no, which is why he had explained that the representatives from the Texas corrections department had objected to that at the federal level. He added, "It got enacted anyway, without this provision, and I think they're regretting that part of it, at least." REPRESENTATIVE MULDER explained that he is reluctant to adopt it without additional sideboards. He expressed concern about getting into the same situation as under Cleary. The Department of Law could agree to a consent decree, for example, and there would be the two-year time frame, without legislative authority or approval. The legislature could want to get out of it, but the department could disagree. With absolute time frames, it is a little more clear and direct, he said, adding that he is trying to think of a middle ground. Number 0745 MR. GUANELI said he understands the concern and hopes his explanation would make the sponsor feel better. He then explained that HB 214 is structured so that any court order entered is subject to the two-year limitation, after which the state can move to terminate the order; that is regardless of whether the order follows a trial in a contested case, or, if Amendment 3 is adopted, results from a consent decree. If there really were such a disagreement between the legislative and executive branches over moving to amend, nothing in HB 214, without the amendment, would force the state to move to terminate the court order. MR. GUANELI said he thinks the difference, however, is that here there is a mechanism to go in and, with some degree of certainty, get the court order terminated. Under current law, that isn't the case, which is why the state has not proceeded in spite of the legislature's request to do so. He emphasized that the landscape changes significantly under this bill. If the legislature passed a resolution asking the attorney general to move to terminate, for example, but the attorney general did not without good grounds, Mr. Guaneli said it seems that would present the legislature with an opportunity to adjust its funding decisions in light of that. He believes that would be acting in good faith, just as the legislature has acted in good faith in responding to the Cleary order, coming up with the money to send prisoners to Arizona to lower the in-state population. This completely changes the ground rules for this type of litigation, which is something the House Finance Standing Committee would have to take into account, he added. Number 0874 REPRESENTATIVE CROFT indicated that although a consent decree would still be subject to the same restrictions, this essentially allows one to try to get a better deal without going to court. MR. GUANELI affirmed that. Number 0895 REPRESENTATIVE KERTTULA suggested it would also solve the problem where there is no current violation, but it is known that in two days, there will be a violation. She added, "And right now, under the statute, as it would be rewritten, the judge couldn't make the order. But the parties could say, 'We're not going to waste the time, and energy and money to come back to court.'" She asked whether that is correct, then added, "So, you really could end up having to do the whole thing all over again, for no good reason." MR. LUCKHAUPT said that has been one dispute between the legislature and the executive branch about Cleary over the years, that the executive branch saw they were getting a little better deal, but the legislature, the first few years, didn't care because there was ample money. In the last nine years he has been in this job, there has been a constant dispute about how the executive branch entered into an agreement without legislative involvement, but the legislature is then expected to fund everything in that agreement, even though some items aren't of a constitutional dimension. That is something which parties might agree to give up in a settlement or in a consent decree, he noted. MR. LUCKHAUPT pointed out that while the court system cannot require the legislature to appropriate those funds, the courts could fine the legislature or executive branch for not providing that level of services. For a number of years, the legislature chose not to pay those fines, claiming the right to appropriate. Therefore, there is constant friction caused by consent decrees. MR. LUCKHAUPT informed members that in the past, he had participated in consent decrees in another state. He said he can understand the concerns of Mr. Guaneli and the department that there are cases where litigation choices are made, deciding it may be cheaper in the long run to make an agreement or settle a case. The way the amendment is written now, it is open-ended. Although a motion could be filed to terminate an order two years after entering into a consent decree, the parties could choose not to, either, and the legislature would still be bound the same way. MR. LUCKHAUPT noted that the federal litigation doesn't include this. The state of Texas, to his understanding, had objected to some portions, and other states didn't want any consent decree language in there or to allow any consent decrees that did not meet this requirement. That was because federal courts, in some cases, were seemingly pressuring state attorneys into entering into certain settlements, Mr. Luckhaupt told members, when it didn't appear to the states that there was a present constitutional violation; that was one of the issues the state appealed on in the original Cleary case. MR. LUCKHAUPT suggested that the state was able to obtain a better deal in that case because the judge's decision to impose injunctive relief was potentially going to be overturned by the supreme court. He further suggested that a remedy would be having the ability to enter into consent decrees but being bound by a time limit, so they don't go on forever without the legislature's involvement. He noted that Mr. Guaneli had suggested that the legislature's remedy would be to basically gut the funding for the Department of Law or the Department of Corrections. "And those things usually don't get anybody anywhere, on either side," he added. Number 1203 REPRESENTATIVE MULDER responded that Mr. Luckhaupt had expressed his own concern. He stated that the purpose of this legislation was to try to limit, in time and scope, consent decrees and court orders. "And I was just concerned about putting us back into that same position again," he stated. Number 1292 REPRESENTATIVE ROKEBERG stated his understanding that a consent decree would have to have the agreement of both the plaintiff and the administration, in this case. He asked whether there is any way to inject the legislature here without it becoming a massive burden of decision making. Number 1329 REPRESENTATIVE MULDER surmised that the separation of powers would prohibit that from being entered into. "This is one of those 'Really, trust me' issues," he added. REPRESENTATIVE KERTTULA noted that it would be, "Trust me for two years." Number 1344 REPRESENTATIVE CROFT asked how this would keep going. He asked if there would be separate consent decrees, noting that it says it "shall be terminated upon the motion of the defendant unless the court finds that there exists". He stated, "You can put the same language into this section (e), that is, any consent decree expires after two years, unless the court finds that there continue to exist violations of law. They could sunset, in effect, unless the court stepped in and said ... there are existing violations." Number 1378 MR. GUANELI asked whether Representative Croft's idea is that it would automatically terminate after two years, even if the state didn't affirmatively move for it, unless the plaintiffs could come in and show the unconstitutional violations. He said he sort of likes that idea. REPRESENTATIVE MULDER responded that he likes it, too. He indicated it provides the sideboards he was looking for. REPRESENTATIVE CROFT affirmed that it was the idea, although he expressed ambiguity about it. REPRESENTATIVE MULDER said that there has to be some trigger mechanism. He agreed with Representative Croft's interjection that the court review it again. REPRESENTATIVE CROFT agreed to work on that. CHAIRMAN KOTT stated that he did not believe that would be a substantial amendment to get to that end. He noted that HB 214 has another committee of referral. He inquired as to the wishes of the committee. REPRESENTATIVE CROFT expressed his discomfort in sending a judiciary issue to the capable House Finance Standing Committee. CHAIRMAN KOTT commented that the committee could address this tomorrow. REPRESENTATIVE MULDER pointed out that the only outstanding issue is the fiscal note, which is currently indeterminate. He indicated that money could actually be saved with this. CHAIRMAN KOTT agreed. Chairman Kott withdrew his objection to Amendment 3 and requested that Amendment 3 be withdrawn. REPRESENTATIVE ROKEBERG withdrew the motion to adopt Amendment 3. CHAIRMAN KOTT announced that HB 214 as amended would be held to tomorrow, April 30, 1999, in order for the sponsor and the committee to work on this legislation. He requested that Mr. Luckhaupt incorporate the language into a clean committee substitute with the other two noted amendments. [HB 214 was held over.] CHAIRMAN KOTT called for a brief at-ease at 4:34 p.m. and called the meeting back to order at 4:40 p.m. HB 135 - POLICE USE OF EAVESDROPPING DEVICES CHAIRMAN KOTT announced that the next order of business would be House Bill 135, "An Act relating to use of eavesdropping and recording devices by peace officers." Number 1679 REPRESENTATIVE ROKEBERG made a motion to adopt the proposed committee substitute for HB 135, version 1-LS0427\H, Luckhaupt, 4/28/99, as a work draft. There being no objection, it was so adopted. CHAIRMAN KOTT explained that two changes were made to Version H. The first change is the removal of a subsection that dealt with the making of an audio recording in conjunction with a video recording of a traffic or other law enforcement control, at the request of Representative Kerttula. The second change is the addition of a "FINDINGS AND INTENT" section, at the request of Anne D. Carpeneti from the Department of Law. Number 1750 REPRESENTATIVE ROKEBERG made a motion to move the proposed committee substitute for HB 135, version 1-LS0427\H, Luckhaupt, 4/28/99, from the committee with individual recommendations and the attached fiscal note(s). There being no objection, CSHB 135(JUD) was so moved from the House Judiciary Standing Committee. HJR 6 - CONST. AM: EDUCATION FUNDING CHAIRMAN KOTT announced the next order of business is House Joint Resolution 6, Proposing amendments to the Constitution of the State of Alaska relating to state aid for education. Number 1926 CHAIRMAN KOTT noted that he has provided a copy of the comments from the law firm Josephson and Associates regarding the constitutionality of the proposed constitutional amendment. He found the comments somewhat interesting, but he doesn't believe that if this amendment was adopted it would not be a violation of church and state separation provisions since similar vouchers have been incorporated at the municipal level around the country. Number 1980 REPRESENTATIVE ROKEBERG made a motion to move HJR 6 from the committee with individual recommendations and the attached fiscal note(s). CHAIRMAN KOTT noted that there is a $1,500 fiscal note. REPRESENTATIVE CROFT objected. The $1,500 fiscal note does not come close to reflecting the cost of such a program to the school systems. Number 2060 CHAIRMAN KOTT echoed the concern of Representative Croft. However, from a legal standpoint he doesn't find anything ... From a public policy standpoint he has problems with it, but it clearly meets the intent of the constitution. It would require a lot of convincing, however, before he would vote for it on the House floor. Number 2099 REPRESENTATIVE ROKEBERG stated that he is in favor of the concept, but how it is accomplished and carried out is a huge issue. Nevertheless, the House Judiciary Standing Committee has done its job and has met its responsibilities. Number 2133 CHAIRMAN KOTT stated there was a lot of discussion in regards to the funding, the provisions of any subsequent legislation, and the parameters placed on private institutions. Number 2164 REPRESENTATIVE ROKEBERG stated that it would be relatively impossible for the electorate to consider the amendment without seeing an outline or design of the statutory backup in order to see the ramifications. Number 2206 CHAIRMAN KOTT noted it would be a massive change to the state education system. Really, the jury is still out on those communities who have tried a voucher system; he is not convinced, therefore, it would work at this point. Until he is convinced otherwise, he would not be supporting a voucher system. Number 2246 REPRESENTATIVE JAMES stated she's not convinced that the language in the proposed constitutional amendment is what she would like. She doesn't have a problem with a prohibition on direct funding to a religious school, but she has a problem with a child not having some money to go somewhere else to school. She disagrees with the idea of having a statute outlined beforehand because one can't be passed unless the constitutional amendment has passed. Furthermore, the funding of education should consider every schoolage child in a district. How the money is spent is the next issue. She said, "I don't think that the whole amount of money divided by the kids would go with the kid, but I think a certain portion of it would. Maybe a thousand or fifteen hundred bucks or something would do that. And, I wish that I had more confidence in charter schools, but I think they're limited pretty much by the statutes that we've provided. Charter schools might provide the information that we need that would eliminate a lot of private schools. But somehow or another I do not believe that the public schools fully support all of the needs of all of the kids and they need to have some options and we should be helping to give them that option." Number 2416 CHAIRMAN KOTT stated certainly there could have been legislation crafted to accompany the resolution, which could have included an effectuation depending on the passage of the resolution. Nevertheless, the House Judiciary Standing Committee did its best with the information available, and from a constitutional standpoint... TAPE 99-46, SIDE A Number 0001 REPRESENTATIVE KERTTULA said, "...I mean we've had a lot of hearings on other pieces of legislation that don't rise to this level of concern, so I'm not comfortable that it does. I'd much prefer to be able to flush that out, understand it better." Fundamentally, she further stated there is enough money to fund education, but the legislature is not doing it and this would not help any. Number 0049 REPRESENTATIVE GREEN stated he understands why a parent would want to send his/her child to a different school. But he wouldn't want to be charged anymore than what he is being charged now. "Whether or not I select then to send my child to somewhere else I don't know that it's necessarily the right thing to do to say instead of funding there I want you to fund him at my choice. There I'm having a real fundamental problem and so I will support moving it from here because I agree with you [Chairman Kott] it does stand the gaff of the legal portion. I have a lot of problems with it." CHAIRMAN KOTT called for a roll call vote. Representatives Green, Rokeberg, James and Kott voted in favor of the motion. Representatives Croft and Kerttula voted against the motion. The motion passed by a vote of 4-2. House Joint Resolution 6 was so moved from the House Judiciary Standing Committee. ADJOURNMENT CHAIRMAN KOTT adjourned the House Judiciary Standing Committee meeting at 4:55 p.m.