Legislature(2001 - 2002)
04/01/2002 01:12 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 1, 2002
1:12 p.m.
MEMBERS PRESENT
Representative Norman Rokeberg, Chair
Representative Jeannette James
Representative John Coghill
Representative Kevin Meyer
Representative Ethan Berkowitz
Representative Albert Kookesh
MEMBERS ABSENT
Representative Scott Ogan, Vice Chair
COMMITTEE CALENDAR
HOUSE BILL NO. 506
"An Act relating to legislative immunity."
- MOVED HB 506 OUT OF COMMITTEE
PREVIOUS ACTION
BILL: HB 506
SHORT TITLE:LEGISLATIVE IMMUNITY
SPONSOR(S): STATE AFFAIRS
Jrn-Date Jrn-Page Action
03/19/02 2603 (H) READ THE FIRST TIME -
REFERRALS
03/19/02 2603 (H) JUD
04/01/02 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
RYNNIEVA MOSS, Staff
to Representative John Coghill
Alaska State Legislature
Capitol Building, Room 102
Juneau, Alaska 99801
POSITION STATEMENT: Assisted with the presentation of HB 506
and responded to questions.
JERRY LUCKHAUPT, Attorney
Legislative Counsel
Legal and Research Services Division
Legislative Affairs Agency
Terry Miller Building, Room 329
Juneau, Alaska 99801
POSITION STATEMENT: Testified as the drafter of HB 506.
ACTION NARRATIVE
TAPE 02-39, SIDE A
Number 0001
CHAIR NORMAN ROKEBERG called the House Judiciary Standing
Committee meeting to order at 1:12 p.m. Representatives
Rokeberg, James, Coghill, Meyer, and Berkowitz were present at
the call to order. Representative Kookesh arrived as the
meeting was in progress.
HB 506 - LEGISLATIVE IMMUNITY
Number 0033
CHAIR ROKEBERG announced that the only order of business before
the committee would be HOUSE BILL NO. 506, "An Act relating to
legislative immunity."
Number 0046
REPRESENTATIVE COGHILL, Alaska State Legislature, testified as
the sponsor of HB 506. Representative Coghill informed the
committee that one of his staff, Rynnieva Moss, was subpoenaed
in regard to a matter that he had requested Ms. Moss work on
with a constituent. And because [his office] had filed
paperwork with the Division of Family & Youth Services (DFYS) in
order to obtain confidential information, he felt that it was
not appropriate for Ms. Moss to be subpoenaed. He said that
when he found out nothing defines legislative staff immunity, he
set forth researching how such immunity could be installed and
thus HB 506 was developed.
REPRESENTATIVE COGHILL explained that Section 1(a) is fairly
narrow, providing immunity for staff while they are performing
legislative duties such as investigating matters of legislative
concern and communicating with other legislators, staff, and
constituents. He said that Section 1(b) is already in statute
and mainly refers to legislators. Section 2 is intent language
providing evidentiary privilege to legislative staff.
Representative Coghill pointed out that due to his part-time
status [during the interim] and his staff's full-time status,
his staff often know more of the details about constituents'
needs.
Number 0336
RYNNIEVA MOSS, Staff to Representative Coghill, Alaska State
Legislature, informed the committee that the case she was
involved in was a DFYS case of a child in need of aid (CINA).
In November, a mother and a grandmother met with some of the
DFYS employees and herself in order to discuss a plan to reunite
the family. On February 28 she received a subpoena, which was
issued by the attorney general's office.
CHAIR ROKEBERG asked whether there are statutory privileges
granted to legislative staff regarding certain matters such as
those involving the DFYS.
MS. MOSS answered that the statutes are very gray in this area.
If the case had been taken to the Alaska Supreme Court, it
would've probably ruled in Ms. Moss's favor. "It would take a
legal action to clarify it because it is gray in statute," she
said.
CHAIR ROKEBERG asked whether Ms. Moss was aware of any statutory
language that would've granted the right of legislators and
staff to have confidential communications with various
departments, including the DFYS and the Child Support
Enforcement Division (CSED).
MS. MOSS explained that there was a change in statute about
three years ago that allowed communication with the DFYS
regarding confidential matters as long as [legislators or
legislative staff] obtained a constituent's signature on a
disclosure form.
CHAIR ROKEBERG asked if this case fit the aforementioned
description.
MS. MOSS replied that the disclosure form was filed. In
response to Representative Berkowitz, Ms. Moss confirmed that
this [subpoena] was quashed after she wrote a memorandum
explaining why she felt she had immunity. And although the
verbal response from the Department of Law indicated
disagreement with Ms. Moss regarding her immunity, they said
that it wasn't a battle they wanted to take on at the time.
REPRESENTATIVE MEYER relayed his belief that this sort of
situation has occurred twice.
MS. MOSS confirmed that she is aware of two times in which
legislative staff has been subpoenaed, adding that last summer,
another legislative staff member was threatened with a subpoena.
REPRESENTATIVE MEYER asked if in either case, legislative staff
had to go court.
MS. MOSS indicated [no].
REPRESENTATIVE BERKOWITZ inquired as to whether in the other
cases, the subpoenas were quashed or withdrawn.
MS. MOSS deferred to Mr. Luckhaupt.
Number 0660
JERRY LUCKHAUPT, Attorney, Legislative Counsel, Legal and
Research Services Division, Legislative Affairs Agency, informed
the committee that there have been two subpoenas of legislative
staff in the last year, although, over the last few years, there
has been [discussion] of a couple other subpoenas that were
maybe going to be issued. Also, about eight years ago there was
notification that an employee at the Ombudsman's office was to
receive a subpoena, but there was success in getting the parties
to choose not to issue that subpoena. Mr. Luckhaupt turned to
Ms. Moss's case, which he discussed with the Department of Law
(DOL), and the gist of the department's intent was as Ms. Moss
expressed.
MR. LUCKHAUPT turned to another subpoena, which was issued to
Kevin Jardell, who was staff to Representative Joe Green at the
time. The subpoena for Mr. Jardell was in regard to the
redistricting legislation. That subpoena wasn't completely
quashed by the Alaska Supreme Court; that is, the proponents of
the subpoena were limited in what they could ask Mr. Jardell.
The proponents couldn't ask Mr. Jardell about any conversations
he had with legislators or any conversations that legislators
had with him. In response to Chair Rokeberg, Mr. Luckhaupt
informed the committee that counsel for the Redistricting Board
issued the subpoena.
CHAIR ROKEBERG inquired as to why a subpoena had to be issued
rather than merely deposing Mr. Jardell.
MR. LUCKHAUPT answered that Mr. Jardell was issued a subpoena
because [the Redistricting Board's] pleadings said that Mr.
Jardell had attended most of the meetings of the board and
participated in its actions. Therefore, the board felt he had a
unique perspective to relate.
REPRESENTATIVE BERKOWITZ commented, "And he had his own plan."
MR. LUCKHAUPT answered, "Correct." There was never any attempt
to quash the subpoena in regard to those submissions by Mr.
Jardell. The pleadings regarding Mr. Jardell are a matter of
public record and have been submitted to Legislative Council.
In response to Representative Berkowitz, Mr. Luckhaupt confirmed
that he acted as Mr. Jardell's attorney in regard to the
legislative immunity issue alone.
Number 0919
CHAIR ROKEBERG related his understanding that Mr. Luckhaupt
bifurcated the issues.
MR. LUCKHAUPT explained, "To the extent ... they sought to
question Mr. Jardell about legislative duties he was engaged in
or conversations he had with legislators, then we interjected an
objection to that." In regard to information sought in relation
to the plan Mr. Jardell submitted or other matters, [legislative
counsel] didn't represent Mr. Jardell. In response to
Representative Berkowitz, Mr. Luckhaupt recalled that Mr.
Jardell acted as counsel for himself on matters not related to
his legislative duties.
CHAIR ROKEBERG returned to why a subpoena was issued rather than
deposing him.
MR. LUCKHAUPT related [Legislative Legal Services and Research
Division's] position that [the Redistricting Board's counsel]
wouldn't be able to depose Mr. Jardell in regard to legislative
duties. In further response to Chair Rokeberg, Mr. Luckhaupt
specified that the subpoena required Mr. Jardell to appear in
Alaska Superior Court. Mr. Luckhaupt noted that some of the
challengers to the redistricting proposal issued a subpoena to
Jim Baldwin, Assistant Attorney General, Governmental Affairs
Section, Civil Division (Juneau), Department of Law.
REPRESENTATIVE BERKOWITZ related his understanding that Chair
Rokeberg is inquiring as to whether it's standard procedure to
issue subpoenas for people "you" want to have appear in a
proceeding. He posited that if those individuals don't show,
then it would be arguable that there was an effort to secure the
person's presence and so his/her failure to appear won't be held
against the case or the client.
MR. LUCKHAUPT said that he agreed with that strategy.
Number 1071
CHAIR ROKEBERG inquired as to the theory under which Mr.
Luckhaupt defended Mr. Jardell.
MR. LUCKHAUPT answered that prior to [Mr. Jardell's case], the
issue of whether legislative immunity extends beyond the
legislator had not been resolved by the Alaska Supreme Court.
However, the U.S. Supreme Court has repeatedly held that
legislative immunity does extend beyond the legislator [and thus
to legislative staff]. He pointed out that the U.S.
Constitution, like the Alaska State Constitution, includes a
clause that refers to members but doesn't specifically mention
staff. Therefore, [some might argue that] if information
couldn't be obtained from a legislator, then it could be
obtained through his/her staff. Although this specific issue
hasn't been decided in Alaska, the Legislative Legal Services
and Research Division has viewed immunity for [legislative
staff] as the law.
MR. LUCKHAUPT turned to a suit brought by the employees of the
Alaska Marine Highway System (AMHS). He explained that those
employees brought a suit against several members of the House
and Senate, including a Senate employee. The AMHS employees
argued that they had been defamed by the legislature's inquiry
into the cost-of-living-differential payments to various
employees of the ferry system who didn't live in Alaska. Mr.
Luckhaupt, along with the Attorney General's office, succeeded
in getting that suit dismissed. At the time, the [Alaska]
Superior Court put forth a decision that the legislative
employee had the same immunity from the suit as did the
legislators. He noted that although that case is on appeal in
the Alaska Supreme Court, it isn't in regard to the issue of the
legislative employee.
MR. LUCKHAUPT, in response to Chair Rokeberg, said that Mr.
Jardell's and Ms. Moss's cases are the only instances in which
there was an attempt to enforce a subpoena against a legislative
employee. In the past when people were informed of a pending
subpoena, it was taken care of with a phone call.
REPRESENTATIVE BERKOWITZ inquired as to the meaning of the
phrase "held to answer". He asked if that phrase meant that
neither [legislators nor their staff] could be called as a
defendant or a witness.
MR. LUCKHAUPT said that he would make the same argument for both
legislators and their staff. The aforementioned language is the
same that is used in the constitution. He explained his
position that it prevents [legislators or legislative staff]
from being sued or being called as a witness.
Number 1337
REPRESENTATIVE BERKOWITZ posed a hypothetical example in which a
legislator witnesses a crime while looking out the window
pondering legislation. He related his understanding that Mr.
Luckhaupt doesn't believe the legislator would be subject to
subpoena as a witness.
MR. LUCKHAUPT clarified that his opinion is that the legislator
would be subject to a subpoena in that situation. Although the
legislator is in his/her legislative office, witnessing that
crime isn't part of the legislator's duties. However, if the
legislator was sponsoring legislation dealing with domestic
violence and decided to ride along with a peace officer in order
to obtain specific information for the legislative duties, then
the argument [of immunity] would be appropriate.
REPRESENTATIVE MEYER remarked that he feels that the public has
a right to know what he, as holder of a public office, is doing.
However, he added, sometimes some fairly confidential material
is discussed, so he could understand the need for this immunity.
Still, he said, he wondered whether this immunity could or would
be abused. Moreover, [legislators and staff] dealing with
emotional issues may share those issues with their spouse. He
asked if the spouse of a legislator or legislative employee
could be subpoenaed.
MR. LUCKHAUPT said that he would advise [legislators and their
staff] who are in possession of confidential material to not
share it with their spouse. He pointed out that the U.S.
Supreme Court has never extended federal legislative immunity to
spouses. Although legislative immunity isn't privilege, it's
similar to the law of evidentiary privilege. Therefore, if a
legislator chooses to tell people a privileged matter, the
legislator has waived his/her privilege by discussing the matter
with other people. Choosing to communicate something
[confidential] to a spouse is probably a violation of law and
probably wouldn't be privileged.
Number 1569
REPRESENTATIVE MEYER said that he didn't disagree. However, he
expressed concern that everything he deals with is public,
although there is the need to keep some things separate.
CHAIR ROKEBERG remarked that he doesn't believe the issue
revolving around confidentiality and confidential disclosure
only relates to [legislative immunity] peripherally. "Pillow
talk is not covered by this bill," he stated.
REPRESENTATIVE JAMES noted her belief that not everything she
does is open to the public, especially when discussing things in
a confidential manner. Representative James mentioned that over
the years she has been able to do some really good things for
people who have been able to confide in her the real facts. If
the possibility of being subpoenaed looms, it would have a
chilling impact on the people's ability to share with
legislators. Representative James said that she has always
assumed that she would never be asked to divulge private
information that has been shared with her.
CHAIR ROKEBERG asked if Mr. Luckhaupt recalled the passage of
enabling statutory language that allows legislators and staff to
have confidential communications with various agencies.
MR. LUCKHAUPT recalled that eight to nine years ago, the
legislature passed a statute that allowed legislators to have
access to the DFYS case files, provided that the information is
kept confidential. That statute was in response to legislators
being contacted by constituents who would request that the
legislator investigate an issue on their behalf. At that time,
the DFYS was refusing legislators access to the files even with
permission from the constituent. Therefore, the issue was
resolved by the passage of the aforementioned statute.
REPRESENTATIVE BERKOWITZ posed a hypothetical example in which a
legislator asks his/her staff to do something, which the staff
accomplishes by threatening an individual. He asked if that
legislative employee would be immune.
MR. LUCKHAUPT pointed out that legislative duties don't include
threatening people or committing criminal acts. Therefore,
immunity wouldn't extend to such acts.
REPRESENTATIVE BERKOWITZ asked: What if the legislative
employee was told by the legislator to obtain something no
matter what?
MR. LUCKHAUPT answered that neither the legislator nor the
legislative employee would have legislative immunity. He
pointed out that there are a number of federal cases that have
construed legislative immunity. Legislative immunity extends
only to legislative duties, and the federal courts have said
that actions such as stealing and threatening people [don't fall
under legislative immunity]. In response to Representative
Berkowitz, Mr. Luckhaupt pointed out that Watergate pertained to
the executive branch and thus the corresponding executive
immunity would exist in Alaska.
CHAIR ROKEBERG inquired as to how that [meshed] with the
Dankworth case, which alleged criminal activity because Mr.
Dankworth [when he was a Senator] attempted to include in the
budget an appropriation to purchase a surplus construction camp
of which he was part owner. He relayed that the court said, "If
the motives for a legislator's legislative activities are
suspect, the constitution requires that the remedy be public
exposure; if the suspicions are sustained, the sanction is to be
administered either at the ballot box or in the legislature
itself." Therefore, according to the Dankworth case, he opined,
the members of the [Select Committee on] Legislative Ethics and
the members of the "fourth estate" are the balancing force.
Chair Rokeberg asked, "How do you square that with what you just
said?"
MR. LUCKHAUPT explained that in Dankworth, the [Alaska] Court of
Appeals decided that the Department of Law was looking at
whether it was illegal for Mr. Dankworth to attempt to influence
the executive branch into placing a line item in the budget that
would purchase property in which he had partial ownership.
Therefore, the argument was that the aforementioned was
criminal. The Court of Appeals said that because preparation of
the budget is a joint legislative and executive concern, Mr.
Dankworth's actions of contacting the executive branch weren't
illegal in Alaska, per se, and were thus protected under
legislative immunity.
Number 1958
MR. LUCKHAUPT pointed out that this is different than what the
federal cases have decided. The federal courts have taken a
broader view in regard to what may be outside the realm of
legislative duties. The court's ruling in the Dankworth case
has certainly bothered everyone. Mr. Luckhaupt said he feels
the federal view of legislative duties would have come to a
different result in the Dankworth case. Mr. Luckhaupt
highlighted the fact that the court often points out that the
[Alaska] Court of Appeals decided the Dankworth case.
CHAIR ROKEBERG surmised that Mr. Luckhaupt's statements are
based on the fact that this was a court of appeals case, and
that if the facts in the Dankworth case had been subject to
federal law, it probably wouldn't have held up. But under state
law, because it hasn't been adjudicated at the supreme-court
level, it's still at issue; therefore, he posited that Mr.
Luckhaupt would advise a client who is a legislator not to do
[what Mr. Dankworth did].
MR. LUCKHAUPT pointed out that there was a major case in Alaska,
Kerttula v. Abood, that dealt with legislative immunity. In
that case, the Alaska Supreme Court pointed out that there were
two broad policies underlying legislative immunity, one of those
being the historical policy, which is designed to protect
[disfavored] legislators from hostile [executive-branch
employees]. The second broad policy is the protection of
legislators from the burdens of forced participation in private
litigation. Furthermore, both policies further legislative
effectiveness. Mr. Luckhaupt reiterated that under the federal
system, the issue of whether legislative immunity extends to
staff was decided in the 1940s or 1950s.
REPRESENTATIVE BERKOWITZ turned to the two broad policies and
said that in Ms. Moss's case, the historical policy is not at
play. Representative Berkowitz then referred to the second
policy of the protection of legislators from the burdens of
forced participation in private litigation, and said that in his
view, Ms. Moss's case was a public case, a state case.
Representative Berkowitz asked, "If you're going to construe the
... immunity provisions narrowly, how does extension fit within
those two broad policy categories as it applies to Ms. Moss's
case?"
MR. LUCKHAUPT answered that he doesn't believe private
litigation is construed to mean cases that only involve private
parties. He pointed out that Ms. Moss's case involves a state
agency and the parents of a child in a matter that isn't public.
The parents came to the legislative employee and discussed what
was happening to them, which they felt wasn't appropriate. If
the parents had contacted the legislator directly, the
legislator would clearly be immune and thus couldn't be issued a
subpoena in regard to that matter.
Number 2187
MR. LUCKHAUPT explained that because Alaska's legislators are
part-time legislators and because there are legislative staff
members assisting legislators with their duties, the argument
could become that there isn't any immunity. If such were the
case, the public would be "chilled" from contacting legislators.
He questioned how [legislators] would find out any problems with
regard to the interpretation or application of laws if anything
the public says to a legislator or legislative staff is subject
to discovery in a suit. Mr. Luckhaupt pointed out that the
executive branch, in Ms. Moss's case, was the agency that the
parents alleged applied the law incorrectly, and now that agency
is issuing a subpoena to Ms. Moss. He reiterated the question
of why would members of the public discuss with legislators or
their staff problems regarding the executive branch if the
executive branch can issue subpoenas.
REPRESENTATIVE BERKOWITZ inquired as to what this statute would
add to existing case law.
MR. LUCKHAUPT answered that he doesn't believe it adds anything
to existing case law because he believes existing case law
already provides [immunity for legislative staff]. There is
already an Alaska Supreme Court case in which legislative
immunity was applied to staff. Furthermore, legislative
immunity applies to legislative duties.
REPRESENTATIVE BERKOWITZ surmised, then, that [HB 506] would
merely restate in statute what already exists in case law.
MR. LUCKHAUPT said that basically [HB 506] simply provides
something that people can point to as the law.
Number 2313
REPRESENTATIVE COGHILL repeated Ms. Moss's earlier comment that
[the Department of Law's attorney] had relayed his belief that
he didn't believe legislative immunity extended to legislative
staff and that although [the DOL] wasn't willing to fight it
now, it would do so someday. Therefore, he opined, [HB 506] is
significant.
REPRESENTATIVE BERKOWITZ related his understanding that
legislative immunity for staff has never been refuted. However,
if legislative immunity for staff is placed in statute, then
there is the risk of protecting people who should be held
accountable.
CHAIR ROKEBERG returned to Representative Berkowitz's earlier
line of questioning in regard to construing Kerttula v. Abood
narrowly, and asked why would one want to construe that
narrowly. He asked whether any of the principles in the
aforementioned case speak to the "Speech and Debate Clause of
the U.S. Constitution."
MR. LUCKHAUPT clarified that those principles [of legislative
immunity] are also the principles behind the Speech and Debate
Clause.
CHAIR ROKEBERG opined that Representative Berkowitz was trying
to indicate that if those [principles] were construed narrowly,
they wouldn't be broad enough [for members] to even consider or
debate on the floor.
REPRESENTATIVE BERKOWITZ pointed out that the Kerttula case
says, "We believe that Alaska's [immunity clause should also
apply to] non-party legislators."
TAPE 02-39, SIDE B
Number 2378
REPRESENTATIVE BERKOWITZ noted that normally statutes are
construed narrowly.
CHAIR ROKEBERG offered that those aren't statutes; they are
constitutional dictates.
REPRESENTATIVE BERKOWITZ noted that they are policies that are
underlying the statute, which springs from the constitution.
CHAIR ROKEBERG asked if it would be fair to say that [HB 506]
attempts to memorialize case law so that there isn't ambiguity
in the law and thus the guidelines regarding who is and isn't
covered would be clear. He related his belief that this is done
fairly frequently.
MR. LUCKHAUPT specified that that's what he is trying to explain
in Section 2, which points out that this act creates a
privilege. However, Mr. Luckhaupt stated that legislative
immunity is greater than a privilege. Basically, privileges are
created statutorily, wherein one can't be required to talk about
those things that are covered by the privilege, either by
issuing a subpoena or by requiring him/her to testify in court
in any manner. He pointed out that Section 2 also specifies:
By creating this privilege it is not the intent of the
Legislature of the State of Alaska to diminish the
effect of the law of legislative immunity as it exists
in Alaska under the Constitution of the State of
Alaska and the common law. The legislature recognizes
that legislative immunity in Alaska rises beyond a
mere evidentiary privilege to an immunity that reaches
the personal and subject-matter jurisdiction of the
courts.
MR. LUCKHAUPT added that the idea behind creating this
evidentiary privilege is so that perhaps attorneys would be less
likely to issue a subpoena if this were actually in law.
Number 2282
CHAIR ROKEBERG asked if it would be fair to say that the
constitutional privilege granted to legislators is clear insofar
as it exists, although the breadth is a little less clear, he
opined. However, that constitutional privilege doesn't
necessarily extend to legislative staff other than in the
aforementioned case law, which results in ambiguity. Chair
Rokeberg also asked if Mr. Luckhaupt would say that legislative
aides are covered by the constitutional privilege.
MR. LUCKHAUPT said he would; that's the law. He directed
attention to the U.S. Supreme Court case Gravel v. United
States, involving the Pentagon Papers, in which the U.S. Supreme
Court said that aides to [then Senator] Mike Gravel had the same
privilege he did. In that case, the executive branch was trying
to discover from whom [Senator] Gravel obtained the Pentagon
Papers, and without issuing a subpoena directly to [Senator]
Gravel, they issued a subpoena to his staff. And although staff
could be compelled to testify regarding the private publication
of the Pentagon Papers because that was not considered part of
their legislative duties, they did not have to disclose
information about who provided the Pentagon Papers to [Senator]
Gravel initially because the papers were brought forth as
matters of legislative concern. So the court found, clearly,
that legislative immunity extended to legislative aides.
CHAIR ROKEBERG asked, if HB 506 had been law, would there have
been a subpoena issued to Mr. Jardell?
MR. LUCKHAUPT said in that case, yes, because there were also
other issues involved.
REPRESENTATIVE BERKOWITZ noted "the irony of Daniel Elsberg and
[Representative] Coghill being linked."
REPRESENTATIVE COGHILL pointed out that it is also true that if
legislators or legislative staff violate confidentiality, they
can be held accountable. So to hold legislative staff
accountable and provide for immunity "keeps us consistent," he
opined.
Number 2138
REPRESENTATIVE BERKOWITZ asked, "So if you have an instance
where a vested interest lobbied a legislator or legislative
staff [to do something], could the public compel disclosure of
that communication?"
MR. LUCKHAUPT pointed out:
You don't get any more vested than a parent coming to
a legislator; I'd say that's a vested interest. A
parent coming to a legislator in regards to asking the
legislature to investigate or intercede with regard to
something that is occurring with [the] DFYS; that's a
vested interest.
REPRESENTATIVE BERKOWITZ asked, "If, for example, someone came
to a legislator on the question of tax policy, could that be
publicly compelled?"
MR. LUCKHAUPT responded that if the legislature itself chose to
require legislators to disclose all of their contacts or
contacts in regards to something in particular, then, yes, it
could. Could the executive branch or a member of the public
compel that? No, not under current law unless "that" was not
part of legislative duties. For example, if that person
approached the legislator and slipped him/her $500 underneath
the table "or something like that," then that is not part of
legislative duties, he said, "and we have clear case law
removing that from the legislative duty agreement." But if this
is a constituent or a corporation, an oil company, for example,
approaching a legislator and expressing displeasure about
legislation and what "they" would like to see occur, then that
legislator is being contacted regarding his/her legislative
duties - the duty to consider certain issues and the duty to
vote on those issues. So in that situation, the federal courts
have held that corporations are the same as any other
constituent.
REPRESENTATIVE BERKOWITZ, referring to the Vice President of the
United States and the formulation of an energy policy, asked:
If there were an analogous situation involving the legislature,
would legislators, under any scenario, be compelled to disclose
whom they had communicated with?
Number 2001
MR. LUCKHAUPT noted that he was not sure that the scenario would
be exactly the same. He then surmised that if, for example, the
legislature had passed a bill creating some special select group
of people to look into energy policy for Alaska, then the
members of the legislature that were selected to make those
selections to the committee would not be compelled to disclose
whom they contacted or whom they were contacted by in regard to
those selections, unless the legislature itself decided to make
those disclosures. He added that the Vice President's situation
deals with executive immunity, which is a much narrower concept
than legislative immunity.
REPRESENTATIVE BERKOWITZ asked why.
MR. LUCKHAUPT said it is because the executive branch is just
carrying out the laws that the legislature enacts and because
that's the way it has developed over the years with regard to
deliberative matters. He noted that basically, the executive
branch is the branch that has all power to harass the
legislative branch, who are the ones to whom ulterior motives
have been assigned over the years. He also mentioned that there
is a case in Alaska involving the "governor's pre-budget papers"
- the papers that circulate back and forth before the actual
budget comes out - and [the court has determined] that those
papers are not public because they are part of that deliberative
phase.
REPRESENTATIVE BERKOWITZ, referring to Ms. Moss's case and
similar situations that legislative staff find themselves in,
said that there are three separate branches of government but
they have overlapping functions. In essence, he continued,
"when we are helping constituents navigate the bureaucracy, we
are performing an executive function, are we not?" That would
be a narrowly construed immunity, he opined, "and oughtn't we
try and construe immunities as narrowly as possible for the
legislature, as well, if we want to continue or strive for a
government in the sunshine?" In response to questions, he said
"we serve executive function on occasion, just the same way the
executive branch has some legislative function."
Number 1879
MR. LUCKHAUPT said that when the legislature is performing
administrative functions, neither the legislature nor members of
the legislature have any immunity. He recounted that a number
of years ago, there was a case, State v. Haley (ph), in which an
employee of the Legal and Research Services Division was fired
for engaging in partisan political activities, or public
political activities. The employee then sued Legislative
Council and the legislature, and that suit was allowed because
the court determined that there was no legislative immunity,
since the hiring and firing of people, particularly for the
Legal and Research Services Division, is not a legislative duty
per se. Hiring and firing people is neither the process of
enacting legislation nor conducting investigations of the
executive branch.
MR. LUCKHAUPT said that act of looking into something that the
executive branch is doing is a legislative activity. One of the
greatest duties of the legislature, he opined, is to see how the
law is being carried out and to see whether what the legislature
has enacted is being carried out as the legislature intends, and
if it isn't, to make changes to the law. He surmised that this
is where a lot of these issues arise from - it's from the
legislature's actions in observing what is occurring and, one,
deciding whether to use the legislature's fiscal power, and,
two, making sure that the law is enacted as intended. He said
he would not categorize this observation or investigation as an
executive-branch function. The legislature's choosing to
investigate and oversee what the executive branch is doing is
part of that legislative function, he added; "there is nothing
beyond the actual passage of laws that is any less of a
legislative function than being able to make sure that the laws
are being carried out the way the legislature intends."
CHAIR ROKEBERG said he believed that the executive branch, at
both the federal and state level, "can talk to anybody they want
to when they're formulating their own policies."
REPRESENTATIVE JAMES, on the issue of whether helping a
constituent constitutes an executive-branch function, said that
she believes that when she is assisting a constituent she is not
performing an executive-branch function. "I don't go tell the
[executive-branch employee] what they can do, or make the
decision; we have a discussion, and sometimes I win and
sometimes I lose," she added.
CHAIR ROKEBERG, on the issue of bribery, mentioned that this
type of pecuniary crime is a felony, and that the legislator
would lose any constitutional immunity for committing such a
crime. He added that the primary way that the legislature
oversees its own conduct is through the legislative ethics code
and the Select Committee on Legislative Ethics, and thus, he
opined, the courts are willing, to a large degree, to allow the
legislature to police itself.
Number 1607
REPRESENTATIVE BERKOWITZ mentioned that AS [11.56.860] speaks to
misuse of confidential information; "If you are a public
servant, and you learn confidential information and you disclose
it, then you're subject to prosecution for [a class] A
misdemeanor."
MR. LUCKHAUPT noted that there is also the crime of official
misconduct. He explained that a public servant commits this
crime if, with intent to obtain a benefit or to injure or
deprive another person of a benefit, the public servant performs
an act relating to the public servant's office but constituting
an unauthorized exercise of the public servant's official
functions, knowing that the act is unauthorized; or knowingly
refrains from performing a duty which is imposed upon the public
servant by law or is clearly inherent in the nature of the
public servant's office. He said that this crime is also a
class A misdemeanor.
CHAIR ROKEBERG asked if legislators would be constitutionally
protected from those misdemeanor crimes since the constitution
says members attending, going to, or returning from legislative
sessions are not subject to civil process and are privileged
from arrest except for felony or breach of the peace.
MR. LUCKHAUPT, after noting that this language is also in
subsection (b) of HB 506, explained that it merely means that
while a legislator is traveling to and from the legislative
session, or during the legislative session, the legislator can
not be served with that process; the case simply gets delayed
until the legislature is done. In response to questions, he
confirmed that that portion of legislative immunity only applies
to the period of time that the legislature is in session.
Number 1520
MR. LUCKHAUPT went on to say that the way this was developed was
more in terms of private litigation:
Let's say you're in the real estate business ... and
let's say in regards to that, you were getting sued by
someone that had purchased a building ... and ... was
alleging that you didn't disclose something in regards
to a material defect or something. And you were
flying down to Juneau that very day to start the
legislative session. They couldn't serve you with
that civil process until that legislative session was
over. ... It's designed to protect you from having to
take time out from the legislative session to deal
with this.
REPRESENTATIVE BERKOWITZ advised that one has to assert his/her
legislative immunity; otherwise, the courts are inclined to
disregard it. Also, he noted that if a legislator is being
served or arrested for official misconduct, there is no immunity
for that because that is not within the exercise of legislative
duties.
CHAIR ROKEBERG, referring to the $500 bribery example, surmised
that that crime could be prosecuted under the official
misconduct statute.
MR. LUCKHAUPT said, "That's not part of your legislative duties,
it would be illegal ... there's a lot of cases out there that
construe it in that particular way." He noted that the
Dankworth case is different in regards to the actions that were
involved; Mr. Dankworth merely sought to have the executive
branch include in the budget submitted to the legislature
particular line items that included the purchase of property
that he was a part owner of.
CHAIR ROKEBERG noted that Mr. Dankworth had asked to be excused
from voting due to a conflict of interest when that item came up
in a legislative floor session, but he was required to vote
anyway.
MR. LUCKHAUPT said that according to his recollection, the
official-misconduct charge against Mr. Dankworth did not stem
from his actions during that legislative floor vote. He went on
to mention that over the years, there have been some legislators
that were prosecuted and convicted for illegal activities.
CHAIR ROKEBERG noted that he has been asked to insert in the
"sales tax bill" an exemption for gyms and fitness clubs, and
that he owns the Powerhouse Gym. He asked how he should proceed
on this issue.
REPRESENTATIVE BERKOWITZ advised Chair Rokeberg to do nothing.
Number 1272
CHAIR ROKEBERG pointed out that if someone else offers such an
exemption as an amendment, and he asks to be excused from voting
on that issue, in all likelihood he will be required to vote
anyway since such requests are generally voted down. "So what
do I do?"
MR. LUCKHAUPT said, "just because you're going to be benefited
by something does not mean that you're committing a crime at
that time or [that] you're not performing a legislative duty."
He noted, for example, that the crime of official misconduct
requires that a person do the act with the intent to obtain a
benefit.
CHAIR ROKEBERG interjected that he would obtain a benefit if
such an amendment passed.
MR. LUCKHAUPT continued by pointing out that the act would also
have to be an unauthorized exercise of the legislator's official
function.
CHAIR ROKEBERG, staying with that example, asked whether his
declaration of a conflict of interest and request to be excused
would be considered an affirmative defense.
MR. LUCKHAUPT indicated that was correct as long as Chair
Rokeberg was not the sponsor of the [amendment]. However, if a
legislator does sponsor legislation or an amendment that would
benefit him/her, then that legislator has a duty to disclose
certain things and would be treading on thin ice whenever he/she
engages in activities that are going to benefit him/her
personally. "You invite ... people [to] assign alternative
motives to your actions, and you should be careful in those
matters," he warned. He opined that those issues are not
related to legislative immunity, in and of themselves.
CHAIR ROKEBERG said: "They'd certainly speak to the Dankworth
case or things like that if there is conflict of interest,
because I presume that that's one thing we're immunized against
if there is disclosure."
Number 1185
REPRESENTATIVE JAMES pointed out that the charges against Mr.
Dankworth had nothing to do with whether he voted for anything;
it had to do with whether he was trying to influence somebody
[in the administration].
MR. LUCKHAUPT, in response to a question, confirmed that the
legislature does have a code of ethics and has the Select
Committee on Legislative Ethics to assist with internal
difficulties. He noted, however, that the ethics rules that
govern the legislature are rules that only the legislature could
adopt and are not something that could be imposed by another
body. He pointed out that something that is tangentially
related is the idea of public meetings.
MR. LUCKHAUPT explained that there was litigation a number of
years back on the issue of whether the legislature could hold
meetings that were not public, and the Alaska Supreme Court
found that this is something for the legislature itself to
consider; if it chooses to open those meetings up, it can. It
is not something that another branch of government can impose
upon the legislature, and because the legislature has certain
rights and duties as a separate branch of government, he added,
legislative immunity is one of those things that the other
branches of government have to recognize. He noted that framers
of constitutions have recognized legislative immunity and that
it is important to memorialize it and protect legislators,
because they are the ones enacting the laws and overseeing
things.
REPRESENTATIVE BERKOWITZ said, "Protecting our heads."
MR. LUCKHAUPT noted that this was literally true 500 or 600
years ago.
CHAIR ROKEBERG asked what the impact would be, now that this
legislation has been introduced, if it does not become law.
Would the courts consider that the legislature was denying
immunity to staff?
MR. LUCKHAUPT assured the committee that he certainly would not
accept that argument if such an issue came before the courts.
He said that in his opinion, "these are constitutional
dimensions, so there isn't any waiver involved." He noted, too,
that he does not entirely agree with Representative Berkowitz
that legislative immunity is something that must be asserted;
"it's our opinion that it's a subject matter jurisdiction of the
courts."
REPRESENTATIVE BERKOWITZ said, "they will defer to it but you
better raise it."
CHAIR ROKEBERG added that it's a constitutional right; "you
could have it in your pleadings."
MR. LUCKHAUPT opined that even if legislative immunity was not
raised initially but was raised later on appeal, for example,
it's still a subject matter jurisdiction, and so would void any
previous act. He explained that subject matter jurisdiction
goes to the basic nature of the court to hear that case, and if
the court does not have subject matter jurisdiction, then it
cannot act. Therefore, he reiterated, it is the opinion of his
office that legislative immunity arises to the level of subject
matter jurisdiction.
Number 0930
REPRESENTATIVE COGHILL, noting that he has a conflict of
interest, moved to report HB 506 out of committee with
individual recommendations and the accompanying zero fiscal
note.
Number 0922
REPRESENTATIVE BERKOWITZ objected.
CHAIR ROKEBERG called an at-ease from 2:33 p.m. to 2:34 p.m.
Number 0900
A roll call vote was taken. Representatives Coghill, Meyer,
Kookesh, James, and Rokeberg voted to report HB 506 from
committee. Representative Berkowitz voted against it.
Therefore, HB 506 was reported out of the House Judiciary
Standing Committee by a vote of 5-1.
ADJOURNMENT
Number 0881
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:35 p.m.
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