Legislature(2003 - 2004)
05/18/2003 10:10 AM Senate JUD
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ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
May 18, 2003
10:10 a.m.
MEMBERS PRESENT
Senator Ralph Seekins, Chair
Senator Scott Ogan, Vice Chair
Senator Gene Therriault
Senator Johnny Ellis
Senator Hollis French
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CS FOR HOUSE BILL NO. 245(JUD)(efd fld)
"An Act relating to certain suits and claims by members of the
military services; relating to certain suits and claims
regarding acts or omissions of the organized militia; relating
to workers' compensation and death benefits for members of the
organized militia; relating to liability arising out of certain
search and rescue, civil defense, fire management, and fire
fighting activities."
MOVED CSHB 245(JUD) (efd fld) OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 145(FIN)
"An Act prohibiting discrimination in the awarding of attorney
fees and costs in civil actions or appeals to or against, or in
the posting of bonds or other security by, public interest
litigants; and relating to awards of attorney fees and costs in
cases involving enforcement of constitutional rights; and
providing for an effective date."
MOVED CSHB 145(FIN) OUT OF COMMITTEE
CS FOR HOUSE CONCURRENT RESOLUTION NO. 16(RLS)
Proposing amendments to the Uniform Rules of the Alaska State
Legislature providing that the 2000 edition of "Mason's Manual
of Legislative Procedure" shall implement the rules; relating to
meetings of subcommittees and conference committees; and
providing for an effective date for the amendments.
MOVED CSHCR 16(RLS) OUT OF COMMITTEE
PREVIOUS ACTION
HB 245 - See Judiciary minutes dated 5/17/03.
HB 145 - No previous action to consider.
HCR 16 - No previous action to record.
WITNESS REGISTER
Ms. Gail Voitlander, Assistant Attorney General
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Commented on HB 245.
Ms. Tamara Cook
Legislative Affairs Agency
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Commented on HB 245.
Mr. Craig Tillery, Assistant Attorney General
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Commented on HB 145.
Mr. Benjamin Brown
Alaska State Chamber of Commerce
Juneau, AK 99801
POSITION STATEMENT: Supported HB 145.
Mr. Robert Briggs, Attorney
Disability Law Center
Juneau, AK 99801
POSITION STATEMENT: Opposed HB 145.
Representative Rokeberg
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of HCR 16.
ACTION NARRATIVE
TAPE 03-53, SIDE A
CSHB 245(JUD)(efd fld)-SUITS & CLAIMS: MILITARY/FIRE/DEFENSE
CHAIR RALPH SEEKINS called the Senate Judiciary Standing
Committee meeting to order at 10:10 a.m. Present were Senators
Ellis, French and Ogan. The first order of business to come
before the committee was CSHB 245(JUD)(efd fld).
SENATOR FRENCH said he continued to have reservations about
section 2, which has to do with search and rescue functions. He
feels that law enforcement officers have to be held accountable
for the decisions they make. For instance, if some FBI and DEA
officers decided to make a bust on what they think is a drug
house and they wind up three doors down by mistake, because the
printing of the address on the search warrant was wrong, they
should be responsible. He feels there should be some balance
point that they haven't found yet for making certain that once
the function is undertaken, it's undertaken in a responsible
way.
Another example is if he calls a state trooper asking for help
and he puts the phone down and writes a note to himself and then
completely forgets it. "It just flat slips his mind. That
strikes me that there's some liability there...Under this
statute, they would walk free."
CHAIR SEEKINS asked if he proposed to hold the state or the
individual liable for that.
SENATOR FRENCH responded that either one would be immune under
this section. He believes the balance point should be somewhere
farther away from absolute immunity.
MS. GAIL VOITLANDER, Assistant Attorney General, commented that
in Senator French's first scenario nothing in this bill takes
away anyone's ability to sue for a constitutional rights
violation under 42USC, section 1983. On the latter scenario, the
Supreme Court has already stated in four cases in a row that you
cannot sue the police for negligent investigation including both
the decision of whether to commence an investigation or not and
how the investigation is carried out.
This bill simply makes it clear that that same policy,
which is recognized by the Supreme Court is the best
one for the state of Alaska and people overall....
Regarding the last scenario, as with any state
employee, when there is a dereliction of duty, then
obviously there are personnel actions up to and
including discharge that is the vehicle to hold
someone personally responsible. What this bill does is
simply say the state treasury will not be held
responsible and if there are derelictions of duty,
then obviously those would become personnel matters...
SENATOR OGAN asked if she remembered the instance in which an
Anchorage airport policeman chased an unarmed person and finally
shot and killed him.
MS. VOITLANDER recalled it was a single officer with a single
vehicle that went down to Indian and that action resulted in the
death of a young man. The family did sue in that case under
civil rights violation, but it was resolved out of court.
SENATOR OGAN asked if police officers are indemnified under this
bill.
MS. VOITLANDER replied the only portions of this bill that would
address actions of police officers is the search and rescue
area, section 2, or if they participated in civil defense
activities under sections 7 - 10.
SENATOR FRENCH asked about a scenario with a fire on the
Hillside in Anchorage due to the spruce bark beetle deadfall and
a bulldozer is cutting a firebreak and takes a wrong turn. The
operator bulldozes a huge swath and knocks down part of a
building. He questioned whether the state would be liable under
this bill.
MS. VOITLANDER replied this bill would bar a civil action for
damages that resulted from an act or omission if it was in
prevention, monitoring, control or suppression of fires.
Obviously, if for some reason the bulldozer's action rose to the
level of constituting a violation of someone's federally
protected rights, they could sue.
SENATOR FRENCH asked what the difference was between sections 11
and 12 since they are both about fire.
MS. VOITLANDER replied that under Title 41 there are two
chapters that deal with firefighting activities by the state.
Chapters 15 and 17 of Title 41 are concerned with firefighting
and so they are reflected in the bill also.
10:23 - 10:25 a.m. - at ease
SENATOR OGAN said he struggles with giving this power back to
the king, so to speak, where the people are less than sovereign.
He asked Tam Cook, Legislative Affairs, if he was off base.
MS. TAMARA COOK, Legislative Affairs Agency, replied:
Senator Ogan's remarks highlight the difficulty of the
choice that is before the legislature in this regard.
Because we don't have a king any more, one could
certainly urge that when you analyze the burdens, they
are allocating the possibility of loss. The state
enjoys sovereign immunity as a matter of
constitutional law and chooses to some extent to waive
that immunity. (Municipalities do not enjoy sovereign
immunity.)...In our system of course, the government
is much more closely tied to the people as a whole.
So, when the state elects to assume some liability in
order to protect the individual, that liability is
actually born by the populations as a whole. It is all
of us that bear that liability and the question is is
it better for the populace as a whole through its
taxes and its fees and its burdens to assume liability
in situations in order to preserve what might be a
catastrophic loss on the part of some of the
individuals of that society? So, in fact, I think the
choice is far worse when you're talking about a modern
complex government such as ours.... No matter how it
comes out, somebody is going to have to bear that
burden and that's the philosophical problem. Where do
you place that?
SENATOR THERRIAULT arrived at 10:35 a.m.
CHAIR SEEKINS said he thought it was reasonable to give the
state sovereign immunity for certain circumstances.
SENATOR OGAN said that the Supreme Court recently said that the
state could be held liable for negligence in the Miller's Reach
fire, but the Superior Court judge tossed it out under the
assumption that the state was immune from suits like that. He
asked if she knew what the assumption was under which Judge
Cutler originally tossed the suit out.
MS. COOK replied that she would defer to the Attorney General's
office for those comments.
MS. VOITLANDER responded that there were actually two different
lawsuits filed - one in Palmer that was dismissed by Judge
Cutler and then one in Anchorage with Judge Reese who dismissed
that case, as well. Judge Cutler was presented with briefings
that showed Ninth Circuit cases in which a number of other
states adopted the concept that there should not be a lawsuit
against firefighters and their employers - be they state,
federal or local government, because of the problems that arise
in terms of firefighting decisions.
SENATOR FRENCH said he missed the grounds for reversal in the
Supreme Court.
MS. VOITLANDER explained that the Supreme Court rejected the
other jurisdictions and found that the Legislature had not
enunciated clearly enough under AS 9.50.250, the statute under
Alaska law that allows someone to file a tort claim, that there
should be immunity. They found that some decisions might be
immune, but some of them may not. The Supreme Court remanded it
to the trial court for further factual development and
eventually there were trials on a number of issues where
plaintiffs claimed that state firefighters were negligent for a
variety of specific actions.
SENATOR FRENCH said it sounds like the basic structure is that
you can sue the state unless the Legislature clearly takes the
right away.
MS. VOITLANDER replied if there is not an existing statute that
takes the right away and you fall within the types of suits
where claims are allowed under AS 9.50.250, you can sue the
state agents who are negligent. She noted that AS 9.65.070
immunizes local firefighters and municipal firefighters.
SENATOR THERRIAULT moved to pass CSHB 245(JUD) (efd fld) from
committee with individual recommendations and attached fiscal
notes.
SENATOR FRENCH objected for a short question. He said he thought
they could make this a better bill by trying to enunciate a
couple of principles. One is you can't force the state to take
on a rescue or fight a fire, but having chosen to act, he
couldn't see anything wrong with saying you have to act
responsibly.
SENATOR FRENCH also agreed that the state should have a certain
amount of immunity, but he thought there was a difference
between that and blanket immunity. This bill gives blanket
immunity in several big areas. He was concerned that someone's
house could get bulldozed or someone could kick in the wrong
door and you could sue under the federal constitution; and he
thought the state constitution should be just as open to
correcting mistakes as the federal constitution.
SENATOR OGAN said he didn't have problems with the civil defense
and military areas of the bill, but he is still struggling with
the search and rescue and fire sections, because there are so
many variables that are out of control for those people.
CHAIR SEEKINS called for a roll call vote.
The motion passed with Senators Ogan, Therriault and Seekins
voting yea and Senator French voting nay. CSHB 245(JUD) (efd
fld) moved from committee with attached fiscal notes.
10:44 a.m. - 7:03 p.m. - at ease
CSHB 145(FIN)-ATTY FEES/ BOND: PUBLIC INTEREST LITIGANT
CHAIR SEEKINS announced CSHB 145(FIN) to be up for
consideration.
MR. CRAIG TILLERY, Assistant Attorney General, said the bill is
intended to prohibit discrimination in the award of attorneys'
fees by preventing the allowance of specific favoritism to
public interest litigants. It provides that in an action or
appeal, a court may not discriminate in the awarding of
attorneys' fees if the action or appeal is based on the nature
of the policy or the interest advocated by the party or on the
persons affected by the outcome of the case or the governmental
entity [indisc]. Those are the four factors the Supreme Court
listed as supporting the public interest litigant status.
In calculating the award that may be granted to the public
interest litigant on the constitutional case, the court shall
include in the award only those parts of the case that were
devoted to the constitutional issues and upon which it
prevailed. The court can only make the award if the claimant did
not have sufficient economic incentive to bring the lawsuit.
Finally, the court in its discretion can abate an award if it
finds substantial and undue hardship is put upon the party
ordered to pay the fees or costs.
He said that Section 3 of the bill would prevent a court from
using those public interest litigant factors in determining
whether to require or in allowing a party to be excused from
paying a bond.
SENATOR THERRIAULT asked for an example of having sufficient
economic reason for bringing a case.
MR. TILLERY replied that in order to have that sort of status,
you cannot have economic incentive to bring the action.
MR. BENJAMIN BROWN, Alaska State Chamber of Commerce, supported
HB 145 in its current version and explained:
...This bill looks at the nature of the claim and it
says what are the most important claims that someone
ought to be able to bring, regardless of his or her
financial circumstances - in what has been called the
public interest - and the bill makes the determination
that it's constitutional claims that deserve that
special status....
MR. BROWN highlighted a three-page document, Order on Emergency
Relief, written by one of the single justices of the Alaska
Supreme Court that explains why section 3 does not excuse a
litigant from posting a bond to get things like temporary
restraining orders. He also noted that while there had been
discussion about putting (c) into Chapter 68 of Title 9, because
prior sections of the chapter were adopted with court rule
changes, he did not see language in (c) violating any existing
rules and, therefore, didn't think it was necessary to put this
language into the statute.
SENATOR OGAN asked if the intent language on page 2, lines 1 -
9, had the effect of being retroactive.
MR. BROWN replied no. The applicability of this legislation is
covered under Section (4) on page 3 and it applies to all civil
actions and appeals filed on or after the effective date, which
is immediate. The effect of the language on page 2, expressly
overruling decisions of the Alaska Supreme Court and the cases
listed, is not going to have a retroactive affect and will not
affect other holdings in those cases beyond the public interest
doctrines. The drafters wanted to make sure that only public
interest elements were captured in overruling the doctrine.
TAPE 03-53, SIDE B
SENATOR OGAN asked a question as the tape was changing and Mr.
Brown responded that the public interest doctrine is not
codified and not part of the Rules of Civil Procedure.
MR. BOB BRIGGS, attorney with the Disability Law Center, urged
them to reconsider the wisdom of CSHB 145(FIN), because it
expands the abrogation of the public interest litigant doctrine
to all statutory and all common law claims. Testimony from
Laurie Hugonin, Alaska Network on Domestic Violence and Sexual
Abuse, in the previous Legislature regarding SB 183 pointed out
that her organization sued the Alaska court system because it
was not implementing a statute the Legislature had passed. She
pointed out that if it were not for the public interest litigant
doctrine, she didn't think she could have brought that lawsuit.
He suggested that there might be a much broader impact than the
original focus of HB 145 and there really isn't a legislative
record that would support that broad abrogation of the doctrine.
He pointed out that they only heard from people who said the
public interest litigant doctrine had affected resource
development in this state, but not from anyone complaining about
the affect it had on enforcement of our civil rights statutes
and our election or redistricting laws.
The reason the public interest litigant doctrine
treats people differently is to level the playing
field and HB 145, therefore, reskews an unlevel
playing field. HB 145 fails to identify the fact that
it makes a court rule change...The court may make and
promulgate rules of procedure by any means that
effects a public pronouncement of the rule of
procedure.... I didn't find an Alaska case on this
point, but I did find a New York case on this
point...but promulgate means to publicly pronounce or
to disseminate...so a rule can be disseminated in any
number of ways. The Alaska Supreme Court has espoused
the public interest litigant doctrine in three ways:
first; by publishing it as a notation to a codified
rule; secondly, by including it as a specific
paragraph in a Supreme Court order, Supreme Court
Order 11.18 (am); and, as part of a published series
of judicial decisions.
So, I suggest that the public interest litigant
doctrine is a rule of procedure that courts are
required to apply in making their decisions about the
allocation of attorney's and costs and in litigation
to which it applies. And, therefore, in changing the
doctrine, you should identify in the title of the bill
that you are abrogating the doctrine. To be legally
effective, it should be adopted by two-thirds majority
of both houses.
The rule, if amended as I suggested, is the doctrine,
itself, as well as Civil Rule 82. Civil Rule 62 in
this new version is affected by this bill and
modified; the same is true for Appellate Rule 508,
Appellate Rules 204 and Appellate Rule 602.
MR. BRIGGS said that those rules all relate to the procedure by
which courts go about issuing stays on appeals. He concluded by
urging the committee to vote no on HB 145, but added that the
Disability Law Center took no position on the much narrower
House Judiciary version of the bill.
SENATOR FRENCH arrived at 7:19 p.m.
SENATOR OGAN said he also preferred a much narrower bill focused
on resource issues as public interest litigant status has
stymied efforts to develop our resources, which is in Alaska's
best interest.
SENATOR THERRIAULT commented that the only court case he has
heard of on redistricting was brought on constitutional grounds
and that was covered in HB 145. He asked if he was missing
something.
MR. BRIGGS replied that he would have to get back to him on
redistricting cases and what cases have been granted public
interest status and whether they have been statutory or
constitutional.
But, ...no lawyer worth their salt would file a public
interest type case without throwing in some
constitutional claims. On the other side of the coin,
what you're forestalling is the kind of case, like the
domestic violence case I mentioned, where there's a
clear statute and somebody is failing to implement
it.... We know at least for the next four years
there's going to be a large alignment between the
majority of this body and the governor, but no one can
say what's going to happen after that. It's possible
to conceive of a case where a statute you folks pass
is not being enforced by the executive branch and then
a public interest litigant would want to come in as a
private attorney general. And most of the times the
court has talked about it, [it] said this is to
encourage citizens to act as private attorneys
general.
SENATOR OGAN said he felt his point was valid and that this
raises the level of diligence the Legislature must exercise to
keep the other branch in check.
CHAIR SEEKINS asked Mr. Briggs if he found anything close to the
provisions of Rule 82 in any other state.
MR. BRIGGS replied he hadn't, but he hadn't researched it. He
felt that was an approach that would upset the tort branch of
the bar association. Another approach would be to abrogate Rule
82 so that everyone is not dealing with the fee-shifting rule.
CHAIR SEEKINS asked if they weren't just putting public interest
litigants in Alaska on the same level they would be on in any
other state.
MR. BRIGGS replied that is true.
SENATOR FRENCH said one category of claims they would be
disrupting unintentionally is folks who bring a public interest
litigation to enforce zoning laws.
Sometimes you have to bring a suit against the city to
enforce its own laws to run prostitutes off, to clean
up drug houses, to haul off old junk cars and that
doesn't strike me as being a constitutional claim.
It's simply a matter of municipal ordinance. So,
before we pass this out in a big hurry, we should take
a look at the possibility that we're interfering with
the rights of citizens to live in clean and decent
neighborhoods....
SENATOR THERRIAULT motioned to pass CSHB 145(FIN) from committee
with individual recommendations and accompanying fiscal notes.
Senators French and Ellis objected and Chair Seekins called for
a roll call vote.
SENATORS French and Ellis voted nay; Senators Therriault, Ogan
and Seekins voted yea; and CSHB 145(FIN) passed from committee.
7:34 - 7:35 p.m. - at ease
#HCR16
CSHCR 16(RLS)-UNIFORM RULES; MASON'S MANUAL EDITION
CHAIR SEEKINS announced CSHCR 16(RLS) to be up for
consideration.
REPRESENTATIVE ROKEBERG, sponsor of HCR 16, said that Alaska was
using the 1979 version of Mason's Manual and this is the only
Legislature in the nation that is using that version. The manual
was revised in 1989 and 2000 and this resolution asks that the
Legislature adopt the 2000 edition. It also amends Rule 23
regarding subcommittees and conference committees to make clear
that the five-day rule does not apply to subcommittees and
conference committees.
SENATOR OGAN moved to pass CSHCR 16(RLS) from committee with
individual recommendations and asked for unanimous consent.
There was no objection and it was so ordered.
There being no further business to come before the committee,
CHAIR SEEKINS adjourned the meeting at 7:42 p.m.
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