Legislature(2005 - 2006)
05/09/2005 01:22 PM House JUD
| Audio | Topic |
|---|---|
| Start | |
| SB132 | |
| SB137 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 132 | TELECONFERENCED | |
| += | SB 137 | TELECONFERENCED | |
| + | SB 172 | TELECONFERENCED | |
| + | SJR 15 | TELECONFERENCED | |
| += | SB 20 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
May 9, 2005
1:22 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson
Representative John Coghill
Representative Nancy Dahlstrom
Representative Pete Kott
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 132(efd fld)
"An Act relating to complaints filed with, investigations,
hearings, and orders of, and the interest rate on awards of the
State Commission for Human Rights; and making conforming
amendments."
- HEARD AND HELD
SENATE BILL NO. 137
"An Act providing that an institution providing accommodations
exempt from the provisions of the Uniform Residential Landlord
and Tenant Act may evict tenants without resorting to court
proceedings under AS 09.45.060 - 09.45.160."
- MOVED HCS SB 137(L&C) OUT OF COMMITTEE
SENATE BILL NO. 172
"An Act relating to the presentation of initiatives and
referenda on the ballot."
- BILL HEARING CANCELED
SENATE JOINT RESOLUTION NO. 15
Requesting the United States Congress to end the abuse of tort
laws against the firearms industry.
- BILL HEARING CANCELED
CS FOR SENATE BILL NO. 20(JUD)
"An Act relating to offenses against unborn children."
- BILL HEARING CANCELED
PREVIOUS COMMITTEE ACTION
BILL: SB 132
SHORT TITLE: HUMAN RIGHTS COMMISSION
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
03/04/05 (S) READ THE FIRST TIME - REFERRALS
03/04/05 (S) STA, JUD
03/17/05 (S) STA AT 3:30 PM BUTROVICH 205
03/17/05 (S) Heard & Held
03/17/05 (S) MINUTE(STA)
03/29/05 (S) STA AT 3:30 PM BELTZ 211
03/29/05 (S) Moved SB 132 Out of Committee
03/29/05 (S) MINUTE(STA)
03/30/05 (S) STA RPT 3NR 1AM
03/30/05 (S) NR: THERRIAULT, WAGONER, HUGGINS
03/30/05 (S) AM: DAVIS
04/07/05 (S) JUD AT 8:30 AM BUTROVICH 205
04/07/05 (S) Scheduled But Not Heard
04/08/05 (H) JUD AT 8:00 AM CAPITOL 120
04/08/05 (S) Scheduled But Not Heard
04/14/05 (S) JUD AT 8:00 AM BUTROVICH 205
04/14/05 (S) Moved SB 132 Out of Committee
04/14/05 (S) MINUTE(JUD)
04/14/05 (S) JUD RPT 1DP 2NR 2AM
04/14/05 (S) DP: SEEKINS
04/14/05 (S) NR: THERRIAULT, HUGGINS
04/14/05 (S) AM: FRENCH, GUESS
04/21/05 (S) TRANSMITTED TO (H)
04/21/05 (S) VERSION: SB 132(EFD FLD)
04/22/05 (H) READ THE FIRST TIME - REFERRALS
04/22/05 (H) STA, JUD
05/03/05 (H) STA AT 8:00 AM CAPITOL 106
05/03/05 (H) Heard & Held
05/03/05 (H) MINUTE(STA)
05/05/05 (H) STA AT 8:00 AM CAPITOL 106
05/05/05 (H) Moved HCS SB 132(STA) Out of Committee
05/05/05 (H) MINUTE(STA)
05/05/05 (H) STA RPT HCS(STA) 4DP 1AM
05/05/05 (H) DP: LYNN, GATTO, ELKINS, SEATON;
05/05/05 (H) AM: GRUENBERG
05/05/05 (H) JUD AT 1:00 PM CAPITOL 120
05/05/05 (H) Scheduled But Not Heard
05/06/05 (H) JUD AT 1:00 PM CAPITOL 120
05/06/05 (H) Heard & Held
05/06/05 (H) MINUTE(JUD)
05/07/05 (H) RULES TO CALENDAR PENDING REPORT
05/07/05 (H) IN JUDICIARY
05/08/05 (H) RULES TO CALENDAR PENDING REPORT
05/08/05 (H) IN JUDICIARY
05/09/05 (H) JUD AT 0:00 AM CAPITOL 120
BILL: SB 137
SHORT TITLE: EVICTING INSTITUTIONAL PROPERTY USERS
SPONSOR(S): SENATOR(S) SEEKINS
03/08/05 (S) READ THE FIRST TIME - REFERRALS
03/08/05 (S) L&C, JUD
03/22/05 (S) L&C AT 1:30 PM BELTZ 211
03/22/05 (S) Heard & Held
03/22/05 (S) MINUTE(L&C)
03/24/05 (S) L&C AT 2:00 PM BELTZ 211
03/24/05 (S) Moved SB 137 Out of Committee
03/24/05 (S) MINUTE(L&C)
03/29/05 (S) L&C RPT 3DP
03/29/05 (S) DP: BUNDE, DAVIS, STEVENS B
04/05/05 (S) JUD RPT 3DP 1NR
04/05/05 (S) DP: SEEKINS, THERRIAULT, HUGGINS
04/05/05 (S) NR: GUESS
04/05/05 (S) JUD AT 8:30 AM BUTROVICH 205
04/05/05 (S) Moved SB 137 Out of Committee
04/05/05 (S) MINUTE(JUD)
04/12/05 (S) TRANSMITTED TO (H)
04/12/05 (S) VERSION: SB 137
04/13/05 (H) READ THE FIRST TIME - REFERRALS
04/13/05 (H) L&C, JUD
04/22/05 (H) L&C AT 3:15 PM CAPITOL 17
04/22/05 (H) <Bill Hearing Postponed to 4/25>
04/25/05 (H) L&C AT 3:15 PM CAPITOL 17
04/25/05 (H) Heard & Held
04/25/05 (H) MINUTE(L&C)
04/29/05 (H) L&C AT 3:15 PM CAPITOL 17
04/29/05 (H) -- Meeting Canceled --
04/30/05 (H) L&C AT 1:00 PM CAPITOL 17
04/30/05 (H) Moved HCS SB 137(L&C) Out of Committee
04/30/05 (H) MINUTE(L&C)
05/02/05 (H) L&C RPT HCS(L&C) NT 3DP 4NR
05/02/05 (H) DP: LYNN, KOTT, ROKEBERG;
05/02/05 (H) NR: CRAWFORD, LEDOUX, GUTTENBERG,
ANDERSON
05/05/05 (H) JUD AT 1:00 PM CAPITOL 120
05/05/05 (H) Scheduled But Not Heard
05/07/05 (H) RULES TO CALENDAR PENDING REPORT
05/07/05 (H) IN JUDICIARY
05/07/05 (H) JUD AT 3:30 PM CAPITOL 120
05/07/05 (H) -- Meeting Postponed --
05/08/05 (H) RULES TO CALENDAR PENDING REPORT
05/08/05 (H) IN JUDICIARY
05/08/05 (H) JUD AT 12:00 AM CAPITOL 120
05/08/05 (H) -- Meeting Postponed --
05/09/05 (H) JUD AT 0:00 AM CAPITOL 120
WITNESS REGISTER
SCOTT J, NORDSTRAND, Deputy Attorney General
Civil Division
Office of the Attorney General
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: During discussion of SB 132, provided
comments and responded to questions on behalf of the
administration.
GRACE MERKES, Commissioner
State Commission for Human Rights
Anchorage, Alaska
POSITION STATEMENT: Provided a comment during discussion of
SB 132.
KELLY FISHER, Human Rights Advocate
State Commission for Human Rights
Anchorage, Alaska
POSITION STATEMENT: Provided a comment during discussion of
SB 132.
JOE MICHEL, Staff
to Senator Ralph Seekins
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented SB 137 on behalf of the sponsor,
Senator Seekins.
REPRESENTATIVE NORMAN ROKEBERG
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: As a member of the House Labor and Commerce
Standing Committee, provided comments and responded to a
question during discussion of SB 137.
ACTION NARRATIVE
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:22:24 PM. Representatives
McGuire, Anderson, Coghill, Kott, Dahlstrom, and Gara were
present at the call to order. Representative Gruenberg arrived
as the meeting was in progress.
SB 132 - HUMAN RIGHTS COMMISSION
1:22:44 PM
CHAIR McGUIRE announced that the first order of business would
be SENATE BILL NO. 132(efd fld), "An Act relating to complaints
filed with, investigations, hearings, and orders of, and the
interest rate on awards of the State Commission for Human
Rights; and making conforming amendments." [Stated as HB 132.]
[Before the committee was HCS SB 132(STA), as amended on 5/6/05,
and a pending motion to adopt Amendment 3.]
REPRESENTATIVE GARA again made the motion to adopt Amendment 3,
to change "180" days to "one year" on page 2, lines 7 and 9. He
offered his understanding that it is the state's position to
have the shortest statute of limitations possible and have it
match federal law. He opined that Alaska's law doesn't have to
match federal law, and that a one-year statute of limitations
make sense.
REPRESENTATIVE ANDERSON objected, adding that he thinks the 180-
day timeframe is a sufficient period of time during which to
seek help [from the Alaska State Commission for Human Rights
("commission")].
REPRESENTATIVE GARA, in response to a question, explained that
the U.S. Equal Employment Opportunity Commission (EEOC) allows
their 190-day filing deadline to be extended to 300 days if the
charge is also covered by a state or local law. He opined that
[the legislature] shouldn't want to force people to file
lawsuits or claims if they are trying to find remedy informally,
and requiring someone to file a claim within 180 days is
essentially doing just that, forcing people to be "sue happy" or
face losing their rights. He remarked that one year is still
only half of the time given most other victims of injury.
REPRESENTATIVE ANDERSON noted, however, that the filing of a
lawsuit does not guarantee its accuracy.
A roll call vote was taken. Representatives McGuire, Kott,
Dahlstrom, and Gara voted in favor of Amendment 3.
Representatives Anderson and Coghill voted against it.
Therefore, Amendment 3 was adopted by a vote of 4-2.
1:26:42 PM
REPRESENTATIVE GARA made a motion to adopt Amendment 4, which
read [original punctuation provided]:
Page 4, lines 15-19
Delete all material
REPRESENTATIVE GARA said he has a concern about the language
Amendment 4 proposes to delete, that language being:
(e) At any time after the issuance of an accusation,
the executive director or the person charged in the
accusation may petition for a summary decision on the
accusation. The commission shall grant a petition if
the record shows that there is no genuine issue of
material fact and the petitioner is entitled to an
order under AS 18.80.130 as a matter of law.
REPRESENTATIVE GARA indicated that his concern stems from the
fact that sometimes early on in a case there hasn't been enough
time to perform an investigation or gather evidence, and so an
employer could move to dismiss the case before sufficient
material facts have been gathered. He then indicated that he
wished to reword Amendment 4.
REPRESENTATIVE GARA withdrew Amendment 4.
REPRESENTATIVE GARA made a motion to adopt a new Conceptual
Amendment 4, to insert after "accusation," on page 4, line 15,
the words, "and a fair time for investigation,".
CHAIR McGUIRE asked Representative Gara whether he would be
amenable to an amendment to this new Conceptual Amendment 4 such
that it would say in part, "a reasonable time".
REPRESENTATIVE GARA indicated that he was amenable to that
amendment. [New Conceptual Amendment 4 was then treated as
having been amended.]
REPRESENTATIVE ANDERSON objected to the motion to adopt new
Conceptual Amendment 4, as amended. He asked Mr. Nordstrand to
comment.
SCOTT J, NORDSTRAND, Deputy Attorney General, Civil Division,
Office of the Attorney General, Department of Law (DOL), on the
issue of new Conceptual Amendment 4, remarked:
It's important to understand that at the time an
accusation is issued, the investigation, which is a
term of art under the statute, has already occurred.
So ... just by operation of the events, ... we have
complaint filed, investigation conducted, substantial
evidence finding, accusation issued. ... I think we
can assume that the [commission] will use good
judgment in how it allows summary judgment to be
practiced.
This would be like trying to codify, say, Rule 56 of
the [Alaska Rules of Civil Procedure], where you'd say
you could have an extension of time, for example,
under Rule 56(f), to conduct discover before you have
to face summary judgment. I don't really think it's
necessary, in the statute, to codify that specific
process - they have broad regulatory authority to
determine how they do summary judgment. All we're
trying to [do] here is to encourage a summary judgment
process. And we could re-codify ... all of Rule 56 in
here if we wanted to, to make it clear what summary
judgment means, but we weren't trying to get that
specific.
REPRESENTATIVE ANDERSON said he would be maintaining his
objection based on that explanation.
1:30:07 PM
REPRESENTATIVE GARA observed that new Conceptual Amendment 4, as
amended, would insert the words he wished to add into the wrong
part of the bill.
REPRESENTATIVE GARA then withdrew new Conceptual Amendment 4, as
amended.
REPRESENTATIVE GARA made a motion to adopt Amendment 4a, to
insert after "shows" on page 4, line 17, the words ", and after
a reasonable time for investigation,".
REPRESENTATIVE ANDERSON objected, characterizing the term
"reasonable time" as ambiguous.
CHAIR McGUIRE asked what the standard is under Rule 56(f) of the
Alaska Rules of Civil Procedure.
MR. NORDSTRAND offered his understanding that basically Rule
56(f) says that in order to respond to a motion for summary
judgment, an extension of time to conduct discover will not be
unreasonably withheld by the court.
REPRESENTATIVE GARA, characterizing that as a very good rule,
offered his belief that it won't apply in human rights
commission proceedings.
CHAIR McGUIRE acknowledged that point, but mentioned that she is
looking to make the language in the bill easily recognizable,
and therefore it doesn't appear that placing similar wording in
statute would work. She surmised that Representative Anderson's
point is: What would constitute a reasonable amount of time to
conduct an investigation and how would the question of whether a
reasonable amount of time had elapsed be determined?
1:32:07 PM
REPRESENTATIVE COGHILL asked what the current process is in
determining whether there is a genuine issue of material fact.
He surmised that imbedded in that process might already be a
timeframe that could be considered a reasonable amount of time.
CHAIR McGUIRE noted that the [timeframe] standard used in
summary judgment with regard to genuine issue of material fact
is already in place, though there are exceptions. Once summary
judgment is granted, she remarked, one's rights are
extinguished.
1:33:23 PM
REPRESENTATIVE COGHILL surmised, then, that in arriving at a
determination, there must be a reasonable investigation of the
matter.
MR. NORDSTRAND, pointing out that the processes being discussed
are already provided for under the commission's current rules,
said he doesn't know how one could reach a genuine issue of
material fact determination without first having obtained
affidavits and/or sworn testimony or having done some discovery
"in the form of admissible evidence."
CHAIR McGUIRE surmised that Representative Gara's concern
centers around the fact that a plain reading of the language in
the bill says that at any time after the issuance of an
accusation, the executive director, which is a political
position, or the person charged in the accusation can petition
for summary judgment. The committee, therefore, is attempting
to ensure that summary judgment is the proper path to take.
1:35:16 PM
MR. NORDSTRAND explained that the language Chair McGuire just
referred to is also used in the aforementioned Alaska Rule of
Civil Procedure, and so the question then becomes one of: When
is summary judgment available? He offered his belief that the
second sentence in proposed AS 18.80.120(c) is the operative
phrase and is the one that appears to cause concern. He
reiterated that although the same language currently being used
in Rule 56(F) could be added to the bill, the committee should
recognize that the commission's regulatory procedures
incorporated references to the Alaska Civil Rules of Procedure
as a means of setting up its system. He surmised, therefore,
that the committee could incorporate the procedure under Rule 56
into the bill and that doing so would be fine.
REPRESENTATIVE GARA expressed agreement with the concept of
doing so.
1:36:23 PM
GRACE MERKES, Commissioner, State Commission for Human Rights,
relayed that she is unfamiliar with the legal aspects being
discussed and so she would have to agree with Mr. Nordstrand's
comments.
KELLY FISHER, Human Rights Advocate, State Commission for Human
Rights, relayed simply that the hearing unit of the commission
essentially follows the civil rules as it advances through
discovery and prepares to go to an administrative hearing.
CHAIR McGUIRE noted that one of her concerns is that a lot of
the people currently on the commission are brand new to the
commission and its procedures and yet they are acting in a
[quasi-judicial] capacity. Chair McGuire mentioned that Ms.
Merkes's comment merely confirms her worst fears, adding that
she wants to know that the commissioners aren't going to merely
follow the lead of [an executive branch employee], that they
instead understand the process they must follow and that it
remains a fair process. Therefore, she opined, "the more that's
in here, the better."
1:38:00 PM
REPRESENTATIVE GARA suggested that if there is a current
commission rule that says a summary judgment will never be
issued until there's been ample time to investigate and prove
the case, then that addresses his concern. However, if such a
rule doesn't already exist [at the regulatory level], he said he
doesn't know where in statute there is language [which will
address his concern], and opined that the [bill] should be
clarified by the addition of language that allows the aggrieved
person to bring forth more information about the case before
summary judgment is issued.
MR. NORDSTRAND offered his belief that under the aforementioned
proposed subsection, the executive director of the commission
would be moving for summary judgment on behalf of the aggrieved
person. He pointed out that under Rule 56(f), if someone moves
for summary judgment against another person, that other person
can ask the court for the time to do discovery. Therefore, he
opined, there is no reason for an administrative law judge to
not allow a reasonable time upon request - allowing more time
would instead be an obvious course of action. If [the committee
still feels, however, that] language needs to be added, he
suggested, then there is various language in Rule 56 that could
be used. He pointed out, though, that the burden of obtaining
an extension is on the party seeking the extension, and that
there are deadlines regarding how much time one has in order to
respond to a motion for summary judgment; the latter, he
remarked, could also be included in the bill.
1:41:09 PM
REPRESENTATIVE GARA remarked that although SB 132 proposes to
rewrite the whole statutory hearing process, it still doesn't
specifically include wording which would ensure that an
aggrieved person has a reasonable amount of time to address a
petition for summary judgment, and since Rule 56 is a court rule
and thus won't apply to the statute, Mr. Nordstrand's continuing
references to that Rule do not alleviate his concerns. He
indicated that he would be amenable to inserting the language of
Rule 56 into the bill.
REPRESENTATIVE ANDERSON offered his belief that the inclusion of
such wording would allow everyone to claim that they weren't
given "reasonable" time.
1:43:09 PM
MR. NORDSTRAND, in response to a question, reiterated his
understanding of the process that the commission and commission
staff undertake when a complaint is filed. He noted that under
the bill, if the investigation portion of the process uncovers
substantial evidence, then the executive director's staff would
prepare an "accusation," which could be likened to a formal
complaint. Currently the commission operates under a rule that
allows motions, but not motions for summary judgment.
Furthermore, the commission's motion practice now is not
governed by statute; rather, it is governed by regulations. The
DOL simply believes that because of the finding in the Alaska
Supreme Court case, Department of Fish & Game v. Meyer, that
substantial evidence requires a hearing, that the statute needs
to specify that the commission can go to summary judgment
without first going to a hearing.
1:44:55 PM
REPRESENTATIVE ANDERSON asked what difference the adoption of
Amendment 4a will make.
MR. NORDSTRAND said it wouldn't make any difference in the
process, since it will still be up to the hearing officer to
determine whether it is reasonable to grant summary judgment at
a particular time. He suggested, however, that in Amendment 4a
it might be more appropriate to use the word "discovery" instead
of "investigation", because the investigation portion of the
process happens prior to the accusation. He added: "We're
certainly not against there being a reasonable time for
discovery. The question is whether it ought to be in the
statute or in the rules that they already have, and they do have
rules on motions ... in their own regulations."
1:45:52 PM
REPRESENTATIVE GARA indicated that he would be amenable to
allowing the commission to come up with its own rules on this
issue; therefore, perhaps the legislation could be changed such
that it said something along the lines of "after a reasonable
amount of time as provided by rules adopted by the commission".
He relayed that he merely doesn't want the current language to
be used as an excuse to not have rules "like that."
CHAIR McGUIRE asked Mr. Nordstrand to comment on two possible
changes: "in a reasonable time for discover" or "in a
reasonable time for discovery as provided under rules adopted by
the [commission]".
1:46:32 PM
MR. NORDSTRAND suggested that perhaps the word "opportunity"
would be more appropriate that the word "time"; therefore,
perhaps the language could be changed to say "and a reasonable
opportunity for discovery pursuant to rules adopted by the
commission".
REPRESENTATIVE GARA withdrew Amendment 4a.
REPRESENTATIVE GARA made a motion to adopt Amendment 4b, to
insert after "shows" on page 4, line 17, the words: ", after a
reasonable opportunity for discover pursuant to rules adopted by
the commission,".
REPRESENTATIVE COGHILL objected for the purpose of discussion.
He asked whether the legislature ought to mandate that the
commission come up with a rule stating what constitutes
"reasonable opportunity". He indicated his preference that the
language being inserted simply say ", after a reasonable
opportunity [for discovery]," opining that such would give
sufficient latitude.
1:48:38 PM
MR. NORDSTRAND explained that within the commission's broad
powers to establish regulations to implement legislation lies
the power to adopt rules even if the bill doesn't specify such.
REPRESENTATIVE COGHILL recognized that point, but offered his
belief that if Amendment 4b remains as is and is adopted, then
the commission would feel compelled to adopt a rule on that
issue, and he doesn't feel that the legislature needs to compel
the commission in that regard.
REPRESENTATIVE GARA indicated that he would be amenable to
changing Amendment 4b.
REPRESENTATIVE COGHILL made a motion to amend Amendment 4b, such
that the words "pursuant to rules adopted by the commission"
would be deleted from it; therefore Amendment 4b, if amended,
would insert only the words ", after a reasonable opportunity
for discovery," on page 4, line 17, after the word "shows".
There being no objection, Amendment 4b was amended.
CHAIR McGUIRE asked whether there were any objections to
Amendment 4b, as amended. There being none, Amendment 4b, as
amended, was adopted.
REPRESENTATIVE GARA made a motion to adopt Amendment 5, which
read [original punctuation provided]:
Page 4, line 28
Delete "noneconomic"
Page 4, line 30 following "DISCRIMINATION]."
Insert "Nothing in this subsection prevents an
award of noneconomic damages, including damages for
emotional injury."
REPRESENTATIVE ANDERSON objected.
1:50:53 PM
MR. NORDSTRAND reiterated that both current statute and the bill
provide that the commission may order "any appropriate relief".
REPRESENTATIVE GARA relayed that the point of Amendment 5 is to
address situations that don't involve economic losses, such as
situations in which someone is being sexually harassed at work
but continues to come to work and so doesn't lose any wages.
CHAIR McGUIRE asked Representative Gara whether he would accept
an amendment to Amendment 5 that would allow for punitive
damages to be awarded instead of noneconomic damages.
REPRESENTATIVE GARA noted that with punitive damages, the higher
standard of proof pertaining to reckless or intentional conduct
applies, and the amount set is the amount needed to punish the
behavior. He indicated that he would be amenable to such an
amendment to Amendment 5.
CHAIR McGUIRE indicated that she doesn't have a problem with the
commission awarding punitive damages in certain cases.
REPRESENTATIVE GARA then remarked, though, that the problem with
such a change is that in determining punitive damages, current
law says that one must first look to see how much the
compensatory damages were. Thus, if compensatory damages are
zero because noneconomic damages can't be awarded, then any
potential punitive damages would also be zero.
1:53:47 PM
MR. NORDSTRAND in response to comments and questions, offered
his belief that there is "a constitutional impairment to the
amendment that's being proposed," and relayed that the courts
have already concluded that the statutory phrase "any
appropriate relief" for purposes of an administrative agency can
only consist of payment for direct, calculable, pecuniary loss,
and the changes being offered via proposed AS 18.80.130(a),
which contains the language that would be altered by Amendment
5, merely attempts to reflect that court ruling. He mentioned,
though, that if a human rights Act case is brought before the
Alaska Superior Court, the aggrieved party can be awarded
compensatory and punitive damage.
MR. NORDSTRAND also mentioned that the courts have already ruled
that in cases where part of the relief sought is compensatory
and punitive damages, that Article I, Section 16, of the Alaska
State Constitution guarantees the parties the right to a jury
trial. Furthermore, that same section of the Alaska State
Constitution says that in civil cases where the amount in
controversy exceeds $250, the right of trial by a jury of 12 is
preserved to the same extent as it existed at common law. He
relayed that the same issue of what happens if a human-rights
type of commission is given the power to award compensatory and
punitive damages has been addressed in Hawaii, in a 2003 case.
In that instance, the Hawaii legislature amended their human
rights Act to say that its commission could award compensatory
and punitive damages.
MR. NORDSTRAND pointed out that although it may be
constitutional to "add this to the commission's powers," the
Hawaii court held that a respondent who appeals a final order
from the commission is entitled to a jury trial on any claims
that form the basis for the award. Therefore, in Hawaii, if one
appeals the award of compensatory or punitive damages, he/she
gets a de novo jury trial on the issues raised with the human
rights commission, because he/she has the right to a jury trial.
REPRESENTATIVE GARA opined that no one is being denied the right
to go to a jury trial; instead, the commission merely offers
people an alternative. He asked whether, in Hawaii, going
through the human rights commission then precludes someone from
exercising his/her right to a jury trial.
1:58:34 PM
MR. NORDSTRAND pointed out that in Alaska, the responding party
does not have the power to "opt into court"; the responding
party is the party that loses the right to a jury trial. So
while it is true that a complaining party could choose to go to
the Alaska Superior Court as an alternative to going before the
commission, the responding party cannot. In fact, the
complainant is not actually a party in human rights commission
cases; instead, the commission becomes the party bringing a
claim against the respondent, and again, the respondent doesn't
have the right to a jury trial. This is why, in Hawaii, after
an award of compensatory or punitive damages, the defendant gets
to appeal the issue before a jury.
1:59:25 PM
REPRESENTATIVE GARA said it doesn't seem right that in certain
human rights cases the aggrieved party would not be entitled to
compensatory or punitive damages.
MR. NORDSTRAND, in response to a question, noted that proposed
AS 18.80.130(a)(1) and (2) list the possible remedies that could
be awarded. He assured the committee that SB 132 is merely
attempting to describe the law rather than change the law.
REPRESENTATIVE ANDERSON indicated that he is concerned with the
concept of the commission awarding large sums for punitive or
compensatory damages.
CHAIR McGUIRE said that the Hawaii example causes her concern.
REPRESENTATIVE GARA asked whether it would be possible to
establish a schedule of fines that the commission could impose.
MR. NORDSTRAND said that doing so could be "implicating criminal
issues."
REPRESENTATIVE GARA asked about perhaps imposing civil
penalties.
MR. NORDSTRAND said the question then would become whether "we
aren't simply substituting a name for punitive damages," and
offered his belief that establishing civil penalties would
clearly be impairing the right to a jury trial.
2:02:37 PM
REPRESENTATIVE COGHILL asked how Section 11 of the bill would be
applied.
MR. NORDSTRAND replied that Section 11 addresses penalties in a
criminal context that would be imposed on a respondent.
CHAIR McGUIRE asked how often criminal charges are pursued.
MR. NORDSTRAND offered his understanding that it is very
uncommon for anyone to pursue criminal charges in such cases.
2:03:38 PM
REPRESENTATIVE GARA suggested that the committee work on the
bill over the summer.
CHAIR McGUIRE said she would be amenable to that concept. She
then asked Mr. Nordstrand whether he knew of a particular reason
to rush the bill through the process.
MR. NORDSTRAND said:
The ... [commission] has, for the last ten years, been
suffering under the burden of the Meyer decision and
the requirement that virtually every case that's filed
with any evidence at all proceed to hearing. Not only
has the [commission] itself suffered under that burden
but everyone who has to respond to human rights
commission complaints; it's a very expensive process.
Now, if in some way this language about noneconomic
and punitive damages is troubling, all we were trying
to do was to tell people what the law is as it
[exists] now. Remove it [and] the law will remain the
same, but I don't believe that it's a defect in the
bill to not have done additional things that we
weren't intending to.
Certainly next year, later this year, tomorrow,
another bill could be introduced to make other
changes. But this was designed to clean up some
things in ... [statute], make sure everybody
understood the remedies that were available ..., and
allow the commission to [go about its business] ...
without taking unnecessary cases to hearing and
without exposing employers to enormous [attorney] fees
that are not recoverable. ...
2:05:51 PM
REPRESENTATIVE COGHILL expressed a preference for moving forward
with the bill.
MR. NORDSTRAND, in response to comments, reiterated that
currently, under the Meyer ruling, a case proceeds to trial if
there is a finding of substantial evidence regardless of whether
the commission feels that it is a worthwhile case; currently the
commission does not have the prosecutorial discretion to not go
forward with a case. Essentially the court in the Meyer case
described the standard of evidence to be very low, and thus it
is now very difficult to have any case not go forward and for
the commission to even figure out what the standard of evidence
actually is. Many such cases are likely to fail, but the state
is now compelled to go forward with them anyway.
CHAIR McGUIRE relayed that HCS SB 132(STA), as amended, would be
set aside [with the motion to adopt Amendment 5, and the
question of whether to amend it, left pending].
SB 137 - EVICTING INSTITUTIONAL PROPERTY USERS
2:09:39 PM
CHAIR McGUIRE announced that the final order of business would
be SENATE BILL NO. 137, "An Act providing that an institution
providing accommodations exempt from the provisions of the
Uniform Residential Landlord and Tenant Act may evict tenants
without resorting to court proceedings under AS 09.45.060 -
09.45.160." [Before the committee was HCS SB 137(L&C); included
in members' packets was a proposed House committee substitute
(HCS) for SB 137, Version 24-LS0739\I, Kurtz, 5/4/05.]
REPRESENTATIVE DAHLSTROM began a motion to adopt [one of the
bill versions] as a work draft.
CHAIR McGUIRE interrupted the motion.
The committee took an at-ease from 2:10 p.m. to 2:11 p.m.
JOE MICHEL, Staff to Senator Ralph Seekins, Alaska State
Legislature, sponsor, said on behalf of Senator Seekins that SB
137 seeks to clarify that institutions [providing a residence]
exempted from Alaska's Uniform Residential Landlord and Tenant
Act do not have to comply with certain other statutes which
outline actions that must be taken by individuals and companies
currently governed by that Act. For example, AS 34.03.330(b)(1)
specifically exempts residence at an institution, either public
or private, if that residence is incidental to detention or the
provision of medical, geriatric, educational, counseling,
religious, or similar services. The heightened protections
designed for residential renters, he opined, are not applicable
to those obtaining residence at such institutions.
MR. MICHEL relayed that the University of Alaska asked Senator
Seekins to introduce SB 137, and that this request was
engendered by situations in which university students violating
the terms of their student housing contract have used the court
system to stall eviction proceedings. The Uniform Residential
Landlord and Tenant Act was designed to alleviate injustices
inflicted on residential renters by private landlords, he
explained, and was taken almost verbatim from the national
Uniform Residential Landlord And Tenant Act outlined in the
federal Fair Housing Act. Senate Bill 137 is meant to fix the
discrepancy between the legislative intent of the state's
Uniform Residential Landlord and Tenant Act and the recent lower
court decision regarding the eviction/removal of individuals
residing in a residence that is owned by an institution
described under AS 34.03.330(b)(1).
MR. MICHEL then read AS 34.03.330(b)(1), and posited that this
language means that a student who has been expelled from school
should not be able to insist on remaining in student housing
until a court order is obtained. He offered his understanding
that the university has put in place a "three-strike" system
intended to work with students residing in university housing,
that there is a long review process, that students have a chance
to appeal a decision, and that [eviction and charges of trespass
constitute] the university's last line of defense. In
conclusion, he mentioned that a representative from the
university was available for questions.
2:15:05 PM
REPRESENTATIVE GARA said he has problems with the bill applying
in situations involving those who, for purposes of geriatric
care, reside in a residence owned by an institution providing
such services; therefore he prefers HCS SB 137(L&C) over
Version I.
2:15:43 PM
MR. MICHEL offered his belief that under current state law,
institutions providing residence for the purpose of geriatric
care [are already allowed to evict residents without a court
order] because those residents sign contracts authorizing such
action; furthermore, there are already agencies involved in
overseeing the treatment, care, and placement of seniors in such
institutions. He noted that members' packets include comments
by the National Conference of Commissioners on Uniform State
Laws (NCCUSL) regarding its intent behind recommending the
language now included in AS 34.03.330(b)(1); those comments read
in part [original punctuation provided]:
This Act regulates landlord-tenant relations in
residential properties. It is not intended to apply
where residence is incidental to another primary
purpose such as a residence in a prison, a hospital or
nursing home, a dormitory owned and operated by a
college or school, or residence by a landlord's
employee such as a custodian, janitor, guard or
caretaker rendering service in or about the demised
premises. This Act is intended to apply to government
or public agencies acting as landlords ....
REPRESENTATIVE ANDERSON noted that the House Labor and Commerce
Standing Committee narrowed the bill such that it would only
apply to the university.
MR. MICHEL, in response to a question, reiterated that the
situation involving the university was the impetus for the bill,
and that it was the university that asked Senator Seekins to
introduce the legislation. Though the sponsor's intent, he
remarked, is for the bill to remain broad in its application
because the sponsor doesn't want to have certain private
institutions being forced to "hold a bed" for someone when that
person could actually be receiving services elsewhere. If an
institution owns a residence for the placement of those
partaking of its services, and if there is a violation of the
residential housing contract signed by those individuals, the
institution should be able to remove those individuals without
having to go through a court action.
2:20:22 PM
MR. MICHEL, in response to comments, reiterated that the sponsor
prefers a more expansive approach, and remarked that the sponsor
views the bill as merely a clarification of existing laws.
CHAIR McGUIRE asked for a list of all the institutions that
would be affected by the adoption of a more expansive version of
the bill.
MR. MICHEL, in response, relayed that according to a word
search, the word "geriatric" is only found once in statute. He
then reread portions of AS 34.03.330(b)(1):
(1) residence at an institution, public or
private, if incidental to detention or the provision
of medical, geriatric, educational, counseling,
religious, or similar services;
CHAIR McGUIRE surmised, then, that Mr. Michel doesn't really
know what specific institutions would be affected by a broader
version of the bill, nor all of its implications, adding that
[this latter point] is of concern to her. She said she can
understand what is meant by, and can support the use of, the
term "University of Alaska", but not simply the reference to "an
institution" as described in AS 34.03.330(b)(1). She concluded
by saying that she doesn't want to make a mistake regarding
taking away someone's legitimate rights under the Uniform
Residential Landlord and Tenant Act.
2:23:59 PM
REPRESENTATIVE GARA again expressed a preference for
HCS SB 137(L&C).
REPRESENTATIVE NORMAN ROKEBERG, Alaska State Legislature -
Member, House Labor and Commerce Standing Committee - opined
that HCS SB 137(L&C) is appropriate in as much as it limits the
scope of the application. Additionally, HCS SB 137(L&C)
maintains the Alaska Rules of Civil Procedure; there are other
causes of action, he remarked, under "unlawful detainer," that
may be prohibited under a more expansive version of the bill,
adding that he doesn't believe there is any need for such a
prohibition. In response to a question, he said he would be
willing to serve on a conference committee should one be
appointed for SB 137.
2:25:41 PM
REPRESENTATIVE GARA said that [the more expansive version of the
bill] causes him alarm, and again reiterated his preference for
a bill that applies only to the university.
REPRESENTATIVE ROKEBERG offered his recollection that the HCS
that became HCS SB 137(L&C) was brought forth by the sponsor's
staff.
REPRESENTATIVE ANDERSON offered his recollection that the HCS
was brought forth by the sponsor's staff in an effort to appease
Representative Rokeberg's concern.
2:27:12 PM
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on SB 137.
REPRESENTATIVE KOTT, noting that HCS SB 137(L&C) was
automatically before the committee, moved to report HCS SB
137(L&C) out of committee [with individual recommendations and
the accompanying fiscal notes]. There being no objection, HCS
SB 137(L&C) was reported from the House Judiciary Standing
Committee.
ADJOURNMENT
The House Judiciary Standing Committee was recessed at 2:28 p.m.
to a call of the chair. [The meeting was never reconvened.]
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