Legislature(1999 - 2000)

02/22/1999 01:33 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
              SENATE JUDICIARY COMMITTEE                                                                                        
                  February 22, 1999                                                                                             
                      1:33 p.m.                                                                                                 
                                                                                                                                
                                                                                                                                
MEMBERS PRESENT                                                                                                                 
                                                                                                                                
Senator Rick Halford, Vice-Chairman                                                                                             
Senator Dave Donley                                                                                                             
Senator John Torgerson                                                                                                          
Senator Johnny Ellis                                                                                                            
                                                                                                                                
MEMBERS ABSENT                                                                                                                  
                                                                                                                                
Senator Robin Taylor, Chairman                                                                                                  
                                                                                                                                
COMMITTEE CALENDAR                                                                                                              
                                                                                                                                
SENATE BILL NO. 11                                                                                                              
"An Act relating to good time credits for prisoners serving                                                                     
sentences of imprisonment for certain murders, attempted murders,                                                               
or conspiracies to commit murder."                                                                                              
                                                                                                                                
     -MOVED CSSB 11(JUD) OUT OF COMMITTEE                                                                                       
                                                                                                                                
SENATE BILL NO. 24                                                                                                              
"An Act relating to the adoption, amendment, repeal, legislative                                                                
review, and judicial review of regulations; and amending Rule 202,                                                              
Alaska Rules of Appellate Procedure."                                                                                           
                                                                                                                                
     -MOVED CSSB 24(JUD) OUT OF COMMITTEE                                                                                       
                                                                                                                                
PREVIOUS SENATE COMMITTEE ACTION                                                                                                
                                                                                                                                
SB 11 - See Judiciary Committee minutes dated 2-17-99 and 2-22-99.                                                              
                                                                                                                                
SB 24 - See Judiciary minutes dated 1-27-99, 2-8-99 and 2-22-99.                                                                
                                                                                                                                
WITNESS REGISTER                                                                                                                
                                                                                                                                
Ms. Deborah Behr                                                                                                                
Assistant Attorney General                                                                                                      
Legislation and Regulations Division                                                                                            
Department of Law                                                                                                               
PO Box 110300                                                                                                                   
Juneau, AK 99801-0300                                                                                                           
POSITION STATEMENT:  Opposed SB 24                                                                                              
                                                                                                                                
Ms. Teresa Williams                                                                                                             
Assistant Attorney General                                                                                                      
Fair Business Practices Section                                                                                                 
Department of Law                                                                                                               
1031 West 4th Ave. suite 200                                                                                                    
Anchorage, AK 99501-1994                                                                                                        
POSITION STATEMENT:  Opposed SB 24                                                                                              
                                                                                                                                
ACTION NARRATIVE                                                                                                                
                                                                                                                                
TAPE 99-11, SIDE A                                                                                                              
Number 001                                                                                                                      
                                                                                                                                
VICE-CHAIRMAN RICK HALFORD called the Judiciary Committee meeting                                                               
to order at 1:33 and announced SB 11 would be the first order of                                                                
business.                                                                                                                       
           SB 11 - PRISON TIME CREDITS FOR MURDERERS                                                                            
                                                                                                                                
                                                                                                                                
SENATOR DAVE DONLEY, prime sponsor of SB 11, reminded the committee                                                             
that SB 11 reduces the amount of good time sentence reduction a                                                                 
person can be awarded. The original version of the bill included a                                                              
reduction for crimes other than first and second degree murder, but                                                             
the proposed committee substitute limits the application of the                                                                 
good time reduction to people convicted of first and second degree                                                              
murder only. SENATOR DONLEY suggested there is a distinction                                                                    
between people who attempt and/or conspire to commit murder and                                                                 
those who actually do it.                                                                                                       
                                                                                                                                
Number 030                                                                                                                      
                                                                                                                                
SENATOR DONLEY moved the adoption of CSSB 11(JUD). Without                                                                      
objection, the committee substitute was adopted.                                                                                
                                                                                                                                
SENATOR DONLEY stated the committee had already taken public                                                                    
testimony on the bill and there was no one else wishing to testify                                                              
at this time.                                                                                                                   
                                                                                                                                
SENATOR DONLEY moved CSSB 11(JUD) from committee with individual                                                                
recommendations and accompanying fiscal notes. Without objection,                                                               
it was so ordered, and CSSB 11(JUD) moved from committee.                                                                       
VICE-CHAIRMAN HALFORD indicated SB 24 would be the next order of                                                                
business.                                                                                                                       
         SB  24-REGULATIONS: ADOPTION & JUDICIAL REVIEW                                                                         
                                                                                                                                
                                                                                                                                
SENATOR DONLEY, prime sponsor of SB 24, reminded the committee they                                                             
had already heard this bill three times. He indicated the                                                                       
Administration offered to work with his staff on this bill and had,                                                             
although they are still not happy with it. He presented a new work                                                              
draft that incorporates some of the changes proposed in the last                                                                
hearing. The work draft deletes the section relating to the                                                                     
Administrative Regulation Review Committee (ARRC), as what it                                                                   
encompassed is already within the powers of the ARRC.                                                                           
                                                                                                                                
SENATOR DONLEY also stated that people cannot use a deficient                                                                   
cost/benefit analysis or inadequate public notification to halt or                                                              
negate  the implementation of new regulations.                                                                                  
                                                                                                                                
Number 090                                                                                                                      
                                                                                                                                
SENATOR DONLEY moved the adoption of CSSB 24(JUD). Without                                                                      
objection, the committee substitute was adopted.                                                                                
                                                                                                                                
SENATOR DONLEY explained he also had an amendment to the committee                                                              
substitute. The amendment excludes the Board of Fisheries, the                                                                  
Board of Game, and the Commercial Fisheries Limited Entry                                                                       
Commission. SENATOR DONLEY said these groups were excluded from the                                                             
original bill and were never meant to be included.                                                                              
                                                                                                                                
SENATOR DONLEY moved amendment #1, which read:                                                                                  
                                                                                                                                
Page 3, Line 2; Amend subsection (g) to read:                                                                                   
                                                                                                                                
     (g)  In this section,                                                                                                      
          (1) "adopting state agency head" means the governor if                                                                
              the state agency is the Office of the Governor, or                                                                
               the commissioner of the department within which the                                                              
               state agency is located;                                                                                         
          (2) "state agency" does not include the Board of                                                                      
          Fisheries, the Board of Game, or the Alaska                                                                           
     Commercial Fisheries Entry Commission.                                                                                     
                                                                                                                                
                                                                                                                                
SENATOR TORGERSON objected, to ask about the section dealing with                                                               
emergency regulations. SENATOR DONLEY replied there is a general                                                                
exception for emergency requirements in section 10. SENATOR HALFORD                                                             
asked if the bill contained the current standard for emergency                                                                  
regulations and SENATOR DONLEY replied that SB 24 adopts a new                                                                  
standard, but exempts emergency regulations. SENATOR HALFORD                                                                    
clarified that the time line for emergency regulations maintains                                                                
what is in current law. SENATOR DONLEY said it does, and he was not                                                             
trying to affect the emergency regulations process.                                                                             
                                                                                                                                
                                                                                                                                
Number 140                                                                                                                      
                                                                                                                                
SENATOR TORGERSON removed his objection. And so, without objection,                                                             
Amendment #1 was adopted.                                                                                                       
                                                                                                                                
MS. DEBORAH BEHR, Regulations Attorney for Alaska and an Assistant                                                              
Attorney General for the Department of Law, confirmed she had met                                                               
with SENATOR DONLEY and his staff to work on SB 24 and they still                                                               
disagree about it. She proposed that the fiscal notes associated                                                                
with this new committee substitute will be higher due to the new                                                                
functions added into the bill.                                                                                                  
                                                                                                                                
MS. BEHR said SB 24 dramatically changes the regulations process                                                                
and the administrative adjudication process, and throws out 40                                                                  
years of case law, opening the state to more litigation. MS. BEHR                                                               
proposed that the bill will result in a less stable and predictable                                                             
business environment. The bill changes the required standard of a                                                               
regulation from "reasonably necessary" to "clearly necessary" and                                                               
will likely result in new court tests to many regulations, even                                                                 
those previously seen as routine and not worth a court test. MS.                                                                
BEHR stated, "I frankly don't know what the court is going to do                                                                
with routine regulations of state government."                                                                                  
                                                                                                                                
MS. BEHR explained the bill adds key terms with no definitions,                                                                 
another area open to litigation with little clear legislative                                                                   
intent. She said the terms "cost," "benefit," and "clearly                                                                      
necessary"  are examples of undefined terms. She stated the bill                                                                
will set up an environment for litigation that is not helpful for                                                               
business.                                                                                                                       
                                                                                                                                
MS. BEHR remarked the bill enlarges the existing bureaucracy in a                                                               
time of budget shortages, and creates additional notice                                                                         
requirements and public meetings and costs associated with them.                                                                
According to MS. BEHR, SB 24 would require another round of public                                                              
comment for any change to a regulation, even changes to which all                                                               
parties agree.                                                                                                                  
                                                                                                                                
MS. BEHR reported SB 24 has unintended impacts on health and safety                                                             
procedures and will require, for example, the Department of Public                                                              
Safety to show a cost/benefit analysis supporting sex offender                                                                  
registration. MS. BEHR concluded, "I'm not sure that that's                                                                     
something that you necessarily want to spend public money to do."                                                               
                                                                                                                                
MS. BEHR stated there is also a problem with incomplete exemptions                                                              
throughout the bill. She mentioned that the Department of                                                                       
Corrections is exempted from certain sections of the bill but                                                                   
included in others. She suggested this might lead to unhappy                                                                    
prisoners "using this to get him/herself out of a situation." MS.                                                               
BEHR insisted that, "The bottom line is that this bill is a handy                                                               
target for litigation and I'm not sure this is the way we want to                                                               
go . . . "                                                                                                                      
                                                                                                                                
Number 244                                                                                                                      
                                                                                                                                
MS. BEHR reviewed the changes made in the new version of the bill.                                                              
First, section 2 changes the standard regulations must meet from                                                                
"reasonably necessary" to "clearly necessary." She said, in many                                                                
cases, this standard will be hard to meet in a court challenge and                                                              
could result in the court voiding regulations that are reasonable.                                                              
                                                                                                                                
Next, section 3 mandates that new regulations must not change the                                                               
intent of the statute they reference. MS. BEHR expressed concern                                                                
that the legislative intent behind statutes is difficult to                                                                     
interpret, especially when it regards things such as new technology                                                             
not envisioned at the time of the passage of the statute. Under SB
24, MS. BEHR is not certain how this type of thing would be                                                                     
addressed. She said this is particularly important to business,                                                                 
with the constant evolution of business technology. She                                                                         
acknowledged the burden is on the person challenging the statute,                                                               
but remarked, "I don't know what the court would do with a statute                                                              
when it clearly could not have been the intent of the Legislature,                                                              
because it didn't exist."                                                                                                       
                                                                                                                                
MS. BEHR suggested possible solutions to the problems that section                                                              
3 attempts to address might include tighter statutes, a better                                                                  
paper record of legislative intent, and a more active                                                                           
Administrative Regulation Review Committee (ARRC).                                                                              
                                                                                                                                
Another concern expressed by MS. BEHR regarded the cost/benefit                                                                 
analysis required by section 4 of SB 24, and its potential impact                                                               
on business. She maintained that cost and benefits are difficult to                                                             
measure in certain instances and this bill will open the State up                                                               
to litigation. MS. BEHR also expressed concern that this bill might                                                             
prevent a commissioner from privatizing any state services.                                                                     
                                                                                                                                
SENATOR HALFORD asked if a cost/benefit analysis would have to be                                                               
done for "regulating of what the statute requires, or for a                                                                     
particular twist in the regulation  . . . clearly the statute is                                                                
self-fulfilling on it's face."  MS. BEHR agreed, but said details                                                               
would be subject to a cost/benefit analysis. She suggested the                                                                  
cost/benefit requirement be reserved for large projects only, and                                                               
although SB 24 exempts small projects, it still encompasses                                                                     
"middle-of-the-road state government projects." MS. BEHR also                                                                   
proposed exempting health and safety requirements from SB 24.                                                                   
                                                                                                                                
Number 320                                                                                                                      
                                                                                                                                
SENATOR TORGERSON remarked that anyone listening to MS. BEHR might                                                              
think nothing could ever happen under SB 24. While in fact, what                                                                
would happen is departments would have to come to the Legislature                                                               
and request legislation. MS. BEHR agreed, but said the Legislature                                                              
is not always in session to deal with things that arise. SENATOR                                                                
TORGERSON replied, "So you put it off a year 'til the Legislature                                                               
has an opportunity to deal with it . . .  a lot of these things the                                                             
Legislature should deal with, I mean, that's half of the problem we                                                             
have here . . . " SENATOR HALFORD agreed.                                                                                       
                                                                                                                                
MS. BEHR continued her analysis of SB 24. Section 8 requires                                                                    
another round of public comment if there is significant change in                                                               
the substance of a regulation. This seems reasonable, but MS. BEHR                                                              
reported that, typically, these changes originate from public                                                                   
comment or from legal concerns of the Department of Law. As                                                                     
written, the bill contains no limit to the number of costly rounds                                                              
of public comment that would occur. MS. BEHR emphasized the costs                                                               
of public comment hearings as well as the expense of additional                                                                 
meetings of boards and Commissions to consider public comments. MS.                                                             
BEHR expressed concern that seasonal regulations might be delayed                                                               
and suggested the committee give a waiver to small businesses. She                                                              
also suggested the ARRC committee be more active, departments  put                                                              
regulations and proposals on the Internet, and public comment be                                                                
limited to one round.                                                                                                           
                                                                                                                                
Number 394                                                                                                                      
                                                                                                                                
SENATOR TORGERSON asked, in the case of a seasonal time crunch,                                                                 
what would prevent "filing the reg they have and then creating                                                                  
another reg for the new, great idea that came in so it wouldn't                                                                 
shut down the construction season." MS. BEHR replied this may not                                                               
work in all situations and, "I would hate to have a commissioner                                                                
adopt a regulation that he thought was not appropriate . . . I                                                                  
don't necessarily think that is a good idea."                                                                                   
                                                                                                                                
SENATOR DONLEY commented that he does not really want commissioners                                                             
incorporating last minute "great ideas." If such ideas are                                                                      
necessary, they can be implemented by emergency regulation and                                                                  
finalized later.                                                                                                                
                                                                                                                                
Number 420                                                                                                                      
                                                                                                                                
DEBORAH BEHR explained that section 12 of SB 24 is new and requires                                                             
that new regulations be adopted within two years of the passage of                                                              
the enabling statute. MS. BEHR contended that two years may not be                                                              
appropriate in exceptional cases, and this bill provides no "escape                                                             
hatch" for responding by regulation to court decisions asking for                                                               
definitions of key concepts in contested statutes. SENATOR HALFORD                                                              
implied that the court specifically allowed that in its decision.                                                               
MS. BEHR noted, "The courts are reluctant to legislate." SENATOR                                                                
HALFORD retorted, "They are?"                                                                                                   
                                                                                                                                
Number 455                                                                                                                      
                                                                                                                                
SENATOR DONLEY said the Legislature can file a writ of mandamus to                                                              
force the adoption of new regulations. MS. BEHR insisted this will                                                              
not work in all situations and could be inadequate in cases where                                                               
the statute has been on the books for more than two years without                                                               
the adoption of regulations. SENATOR DONLEY said this is a new,                                                                 
different argument and he would work on addressing this concern in                                                              
the process.                                                                                                                    
                                                                                                                                
DEBORAH BEHR explained section 13 changes the presumption of                                                                    
validity of a regulation and says a court cannot uphold a                                                                       
regulation unless it is the least intrusive on rights of property                                                               
or it serves a substantial state interest. The bill contains no                                                                 
definition of "substantial state interest," so MS. BEHR said the                                                                
court "will have to figure out what that means." She suggested one                                                              
problem that might arise from this standard is whether to use the                                                               
best scientific way to do something versus the least intrusive way.                                                             
The substantial state interest standard, along with the presumption                                                             
of invalidity, will make it difficult for even reasonable                                                                       
approaches that are good public policy to meet this standard. MS.                                                               
BEHR said although the bill prohibits a temporary restraining order                                                             
or an injunction, a person could still get a declaratory injunction                                                             
under SB 24.                                                                                                                    
                                                                                                                                
Number 504                                                                                                                      
                                                                                                                                
MS. TERESA WILLIAMS, representing the Department of Law, addressed                                                              
the issue of administrative adjudication. MS. WILLIAMS said now,                                                                
when a challenge to a regulation is brought under the                                                                           
Administrative Procedures Act (APA), the Governor's office appoints                                                             
a hearing officer. Generally, a board or commission is the final                                                                
decision  maker, and the hearing officer only hears the case and                                                                
issues a proposed decision. The board or commission can accept the                                                              
decision, remand it, or call for the record and make its own                                                                    
decision. SB 24 institutes a 60-day deadline on the issuance of a                                                               
final decision in such cases and, according to MS. WILLIAMS, "that                                                              
time line is impossible . . . even if the person making the final                                                               
decision is a single person. It is clearly untenable for a board or                                                             
commission."                                                                                                                    
                                                                                                                                
MS. WILLIAMS said hearing officers often request that the parties                                                               
involved submit proposed findings and conclusions, or send drafts                                                               
of proposed decisions to the parties for review and rebuttal. She                                                               
said this process enhances the final decision but, due to the fact                                                              
that hearing officers are private attorneys with their own case                                                                 
loads, this process takes time. To convene a public meeting of a                                                                
Board or Commission, assemble a quorum of private citizens, give                                                                
advance public notice, and give members time to deliberate over the                                                             
information presented in the case could not happen.                                                                             
                                                                                                                                
MS. WILLIAMS also argued that, though most hearings are completed                                                               
within two years, those delayed are delayed mostly at the request                                                               
of the respondent. Another reason for lengthy delays is parallel                                                                
criminal or civil proceedings. In cases such as this, the                                                                       
Commission often relies on the findings from the case for its own                                                               
decision and saves a lot of its own time and money. MS. WILLIAMS                                                                
said these problems and others keep some administrative proceedings                                                             
from being completed within two, or even four years and would                                                                   
require the issue to be taken up again from the beginning at the                                                                
Supreme Court level.                                                                                                            
                                                                                                                                
Number 592                                                                                                                      
                                                                                                                                
MS. WILLIAMS also expressed concern that SB 24 "really takes away                                                               
the final decision making authority from the department and gives                                                               
it to this single hearing officer . . . "                                                                                       
                                                                                                                                
TAPE 99-11, SIDE B                                                                                                              
Number 594                                                                                                                      
                                                                                                                                
MS. WILLIAMS asserted the process proposed in SB 24 gives too much                                                              
power to hearing officers with their own agenda, and with no public                                                             
accountability. She argued that transferring these cases back to                                                                
the court will end up taking longer as the process starts over and                                                              
the court is educated about any technical aspects of a particular                                                               
case. In conclusion, MS. WILLIAMS said this legislation seems to be                                                             
directed at a particular problem and is "way too wide in scope to                                                               
be effective." She said the APA currently allows for court                                                                      
intervention to compel agency action.                                                                                           
                                                                                                                                
SENATOR DONLEY asked why agencies cannot set time lines for hearing                                                             
officers. MS. WILLIAMS said that is done, but the hearing officers                                                              
do not always comply. The governor's office is advised when a                                                                   
hearing officer fails to meet a deadline.                                                                                       
                                                                                                                                
SENATOR TORGERSON asked the normal time line for the adjudication                                                               
process. MS. WILLIAMS replied it averages about 18 months for a                                                                 
straightforward case. SENATOR TORGERSON suggested if the hearing                                                                
officers were not paid unless they kept their time line, and if                                                                 
respondents were held to the same standard, there would be fewer                                                                
delays. MS. WILLIAMS commented, "we have refused to pay hearing                                                                 
officers who have gone past the deadline," but there is no                                                                      
incentive in SB 24 for quick action by the respondents.                                                                         
                                                                                                                                
Number 514                                                                                                                      
                                                                                                                                
SENATOR TORGERSON said it would be a matter of a simple amendment                                                               
to exempt cases that have ongoing parallel court action. SENATOR                                                                
DONLEY suggested they could change the bill to impose the time                                                                  
limit on the proposed decision, rather than the final decision and                                                              
add thirty days for the final decision. TERESA WILLIAMS said the                                                                
problem with that is Boards and Commissions cannot usually convene                                                              
within thirty days. SENATOR DONLEY said he could insert an                                                                      
exemption for Boards and Commissions.                                                                                           
                                                                                                                                
SENATOR HALFORD commented there are 21 fiscal notes included with                                                               
this bill and it appears that SENATOR DONLEY "has reached out and                                                               
touched someone."  He concluded that the goal is right on target,                                                               
though some exemptions might make sense.                                                                                        
                                                                                                                                
Number 475                                                                                                                      
                                                                                                                                
SENATOR DONLEY said he would like to continue to work with the                                                                  
Administration on this bill.                                                                                                    
                                                                                                                                
SENATOR DONLEY moved CSSB 24(JUD) from committee with individual                                                                
recommendations and the accompanying fiscal notes.                                                                              
                                                                                                                                
SENATOR ELLIS objected, saying the bill needs more work that should                                                             
be done in the Judiciary Committee, not the Finance Committee.                                                                  
                                                                                                                                
The roll was taken on the motion. Voting yea: SENATOR DONLEY,                                                                   
SENATOR HALFORD and SENATOR TORGERSON. Voting nay: SENATOR ELLIS,                                                               
and so CSSB 24(JUD) moved from committee.                                                                                       
With nothing else to come before the committee, VICE-CHAIRMAN                                                                   
HALFORD adjourned at 2:33 p.m.                                                                                                  
                                                                                                                                

Document Name Date/Time Subjects