Legislature(2003 - 2004)
04/20/2004 08:08 AM Senate JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
April 20, 2004
8:08 a.m.
MEMBERS PRESENT
Senator Ralph Seekins, Chair
Senator Scott Ogan, Vice Chair
Senator Gene Therriault
Senator Hollis French
MEMBERS ABSENT
Senator Johnny Ellis
COMMITTEE CALENDAR
SENATE BILL NO. 354
"An Act relating to complaints filed with, and investigations,
hearings, and orders of, the State Commission for Human Rights;
making conforming amendments; and providing for an effective
date."
MOVED CSSB 354(STA) OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 447(JUD)
"An Act making corrective amendments to the Alaska Statutes as
recommended by the revisor of statutes; and providing for an
effective date."
MOVED CSHB 447(JUD) OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 230(STA)
"An Act relating to political signs on private property."
SCHEDULED BUT NOT HEARD
CS FOR HOUSE BILL NO. 514(FIN) am
"An Act relating to child support modification and enforcement,
to the establishment of paternity by the child support
enforcement agency, and to the crimes of criminal nonsupport and
aiding the nonpayment of child support; amending Rule 90.3,
Alaska Rules of Civil Procedure; and providing for an effective
date."
HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 354
SHORT TITLE: HUMAN RIGHTS COMMISSION PROCEDURES
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
02/27/04 (S) READ THE FIRST TIME - REFERRALS
02/27/04 (S) STA, JUD
03/23/04 (S) STA AT 3:30 PM BELTZ 211
03/23/04 (S) Heard & Held
03/23/04 (S) MINUTE (STA)
04/01/04 (S) STA AT 3:30 PM BELTZ 211
04/01/04 (S) Moved CSSB 354(STA) Out of Committee
04/01/04 (S) MINUTE (STA)
04/02/04 (S) STA RPT CS FORTHCOMING 1DP 2NR
04/02/04 (S) NR: STEVENS G, STEDMAN; DP: COWDERY
04/05/04 (S) STA CS RECEIVED SAME TITLE
04/14/04 (S) JUD AT 5:30 PM BUTROVICH 205
04/14/04 (S) Scheduled But Not Heard
04/20/04 (S) JUD AT 8:00 AM BUTROVICH 205
BILL: HB 447
SHORT TITLE: 2004 REVISOR'S BILL
SPONSOR(s): RULES BY REQUEST OF LEGISLATIVE COUNCIL
02/09/04 (H) READ THE FIRST TIME - REFERRALS
02/09/04 (H) STA, JUD
02/24/04 (H) STA AT 8:00 AM CAPITOL 102
02/24/04 (H) Moved CSHB 447(STA) Out of Committee
02/24/04 (H) MINUTE (STA)
02/26/04 (H) STA RPT CS (STA) 4DP 1NR
02/26/04 (H) DP: HOLM, LYNN, COGHILL, WEYHRAUCH;
02/26/04 (H) NR: BERKOWITZ
03/18/04 (H) JUD AT 1:00 PM CAPITOL 120
03/18/04 (H) Moved CSHB 447(JUD) Out of Committee
03/18/04 (H) MINUTE (JUD)
03/22/04 (H) JUD RPT CS (JUD) 5DP
03/22/04 (H) DP: ANDERSON, GRUENBERG, SAMUELS,
03/22/04 (H) GARA, MCGUIRE
03/24/04 (H) TRANSMITTED TO (S)
03/24/04 (H) VERSION: CSHB 447(JUD)
03/26/04 (S) READ THE FIRST TIME - REFERRALS
03/26/04 (S) STA, JUD
04/06/04 (S) STA AT 3:30 PM BELTZ 211
04/06/04 (S) Moved CSHB 447(JUD) Out of Committee
04/06/04 (S) MINUTE (STA)
04/07/04 (S) STA RPT 3DP
04/07/04 (S) DP: STEVENS G, COWDERY, STEDMAN
04/20/04 (S) JUD AT 8:00 AM BUTROVICH 205
BILL: HB 514
SHORT TITLE: CHILD SUPPORT ENFORCEMENT/ CRIMES
SPONSOR(s): REPRESENTATIVE(s) KOTT
02/16/04 (H) READ THE FIRST TIME - REFERRALS
02/16/04 (H) JUD
02/23/04 (H) JUD AT 1:00 PM CAPITOL 120
02/23/04 (H) Heard & Held
02/23/04 (H) MINUTE (JUD)
02/27/04 (H) JUD AT 1:00 PM CAPITOL 120
02/27/04 (H) Moved CSHB 514(JUD) Out of Committee
02/27/04 (H) MINUTE (JUD)
03/03/04 (H) JUD RPT CS (JUD) 5DP
03/03/04 (H) DP: GARA, SAMUELS, GRUENBERG, OGG,
03/03/04 (H) MCGUIRE
03/03/04 (H) FIN REFERRAL ADDED AFTER JUD
03/08/04 (H) FIN AT 1:30 PM HOUSE FINANCE 519
03/08/04 (H) Heard & Held
03/08/04 (H) MINUTE (FIN)
03/23/04 (H) FIN AT 1:30 PM HOUSE FINANCE 519
03/23/04 (H) Moved CSHB 514(FIN) Out of Committee
03/23/04 (H) MINUTE (FIN)
03/24/04 (H) FIN RPT CS (FIN) 4DP 3NR 2AM
03/24/04 (H) DP: HAWKER, FOSTER, FATE, WILLIAMS;
03/24/04 (H) NR: JOULE, CHENAULT, HARRIS;
03/24/04 (H) AM: STOLTZE, CROFT
03/31/04 (H) TRANSMITTED TO (S)
03/31/04 (H) VERSION: CSHB 514(FIN) AM
04/01/04 (S) READ THE FIRST TIME - REFERRALS
04/01/04 (S) JUD, FIN
04/16/04 (S) JUD AT 8:00 AM BUTROVICH 205
04/16/04 (S) Scheduled But Not Heard
04/19/04 (S) JUD AT 8:00 AM BUTROVICH 205
04/19/04 (S) Heard & Held
04/19/04 (S) MINUTE (JUD)
04/20/04 (S) JUD AT 8:00 AM BUTROVICH 205
WITNESS REGISTER
Mr. Scott Nordstrand
Deputy Attorney General
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Presented SB 354
Ms. Lisa Fitzpatrick
Chair, Human Rights Commission
POSITION STATEMENT: Expressed concerns about SB 354
Ms. Jan DeYoung
Assistant Attorney General
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Answered questions about SB 354
Ms. Pamela Findley
Legal and Research Services Division
Legislative Affairs Agency
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Presented HB 447
Mr. John Main
Staff to Representative Kott
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Answered questions about HB 514
ACTION NARRATIVE
TAPE 04-46, SIDE A
CHAIR RALPH SEEKINS called the Senate Judiciary Standing
Committee meeting to order at 8:08 a.m. Senators Therriault,
Ogan, French and Chair Seekins were present. The committee took
up SB 354.
SB 354-HUMAN RIGHTS COMMISSION PROCEDURES
MR. SCOTT NORDSTRAND, Deputy Attorney General, Civil Division,
Department of Law (DOL), told members he spent about 15 years
practicing in the employment field when in private practice. He
practiced before the Human Rights Commission on many occasions
and is familiar with its procedures. He maintained that the
state has an interest in having an effective administrative
procedure to root out discrimination and provide remedies, and
to have a procedure that is fair to the state when the state is
the defendant.
MR. NORDSTRAND explained that SB 354 is designed to rebalance
some of the Human Rights Commission's (HRC's) procedures to
provide more fairness in the process and more effective use of
the HRC's resources. He gave the following synopsis of the
measure:
The primary thing that this does is it gives the
executive director of the commission the power to pick
and choose those cases that are most deserving of
proceeding to hearing. That power was essentially lost
to the director in the case that's referenced here,
Department of Fish and Game v. Meyer, 906 P.2d 1365
(Alaska 1995).
To understand this, you have to understand a little
bit about what the procedure is when you go before the
commission. Let's assume for a moment we're talking
about an employer-employee situation, which is the
most common kind of case that comes before the
commission. There are housing cases and other cases
but that's the most common and probably the most
contentious. A question of whether there was
discrimination based upon age in hiring comes before
the commission. The way that happens is the person who
didn't get the job would go down to the commission,
would say that they felt they had been discriminated
against based on age, and then the commission staff
would assist them and prepare a complaint.... You can
see that's AS 18.80.100, that process.
So the complaint is filed and it's sent to the
employer. The employer has an opportunity to respond
and generally that's the point at which the employer
would hire an attorney if they choose to and the
attorney would gather evidence about the circumstances
and prepare...a response back to the commission saying
why they didn't think there was discrimination or, on
occasion, there may have been something wrong and they
offer to remedy it in some way. And so, then the
process begins for the commission to assign an
investigator. The investigator is assigned to look
into both sides of the matter and make a determination
...under AS 18.80.110 that there was substantial
evidence of a discriminatory practice.
That still is the norm. That has not changed under
here. So an investigator, if an investigator finds
there's substantial evidence of discriminatory
practice, then the case is sent to something called
conciliation. You might call it mediation, whatever
you want to call it. It's a time when the employer and
the employee and the commission staff sit down and see
if they can work something out.
If there's a failure of consideration, as they say, at
the commission, then the executive director certifies
that fact and it's assigned forward to hearing. And at
that point a human rights advocate, which is an
attorney employed by the commission, is assigned to
the case to represent the executive director. They
don't technically represent the employee but they
pursue their interests before the commission. They go
through a formal discovery process...not unlike any
lawsuit you're in - depositions, interrogatories, all
of that kind of thing happens and all of the costs
associated with that happen too. It may be somewhat
quicker, but it is, by no means, a particularly
inexpensive way to come to conclusion, and much more
than a civil case.
And then at the end, if there's a hearing, a hearing
officer is assigned. The case is not heard before the
commission.... Generally a contract-hearing officer is
hired. They hear the case, they write a recommended
decision, an order, that's then recommended to the
Human Rights Commission that it ultimately can adopt
or not. The commission has remedial powers that are
limited. They don't include, for example, the power to
award punitive damages, the power to award non-
economic damages, which is pain and suffering, that
kind of - emotional stress kinds of things. Generally
it's injunctive relief, like putting them back to
work, back pay, benefits, that kind of thing - as they
indicate, making the employee or the plaintiff whole.
Now what happened in this Meyer case that created the
problem was that the Supreme Court determination of
what is substantial evidence to require a hearing,
that is, if you have substantial evidence, you have to
have a hearing - that's what the Supreme Court says
and that's what the law has said to date.
Unfortunately...the standard is very low, according to
the Supreme Court, and I'm not sure if that's because
of the way the statute is written or because of the
Supreme Court's interpretation of it. Regardless, the
standard is very low. In fact, the allegation has to
be completely lacking in merit in order not to go to
hearing. That's a very low standard. And so, as a
result, essentially any case that's got any scrap of
evidence at all of a discriminatory event goes to
hearing. That's a problem for the commission because
the commission really has no way to weed out the good
cases from the bad and use its resources most
effectively and to be the most effective agency it
can.
Let me give you a comparison, for example, of what the
Equal Employment Opportunity Commission - the feds do.
The feds do the same thing. They have an investigation
process but, in fact, they decide whether to take the
case or not. The feds don't have, in fact, a
commission or hearing process to go to. If they want
to bring charges of discrimination under federal laws,
civil rights laws, they have to go to the federal
courts. They have to go downtown to the courthouse and
file a lawsuit. That's not the case here. But in any
case, they have the power to choose amongst the
various cases. What this bill does is it gives the
executive director the power to say no, that case
really isn't a very good case. We're not going to win
that case so we're not going to take that one forward.
We'll use our resources somewhere else. That's the
primary thing that this bill does.
MR. NORDSTRAND referred to the analysis section entitled
"Improves commission procedures" and said it contains
remedies to many small problems encountered by attorneys
over the years. First, the HRC is not authorized to
compromise claims during the conciliation process.
Therefore, if a person didn't get a job on May 1 and the
hearing is on December 1, the HRC would have no choice but
to order back pay for seven months. Under the bill, the HRC
would have the choice of ordering less back pay. The bill
also requires the HRC to follow the Administrative
Procedures Act, unless otherwise provided for in statute.
It also allows a hearing officer to grant summary judgment,
either for or against a case before him or her. Right now,
commission regulations preclude a hearing officer from
doing that. He told members that an attorney could file
every case that goes before the HRC as a lawsuit in court
and have access to more remedies, such as non-economic
damages. However, in the court system, if a case is very
bad or very good, the amount the court must hear can be
limited by a summary judgment ruling. Because that option
does not exist with the HRC, the HRC must hear every case
before it. SB 354 will address that issue.
SENATOR THERRIAULT asked why the HRC is precluded from
summary judgments now.
MR. NORDSTRAND said he believes the HRC did not want to
deal with summary judgment motions because of the workload
of the human rights advocates. However, on the flip side,
allowing those motions will potentially prevent a number of
cases from going to a hearing. He said it is his
understanding that summary judgment motions were
specifically excluded from the HRC regulations.
He then said, regarding SB 354 enhancing fairness of the
commission's procedures, in the example of an age
discrimination case, if a finding of substantial evidence
is made, the case would go forward to discovery. However,
in the past, if the problem was determined to be sex
discrimination rather than age discrimination, the HRC
could go forward with a hearing on any claims it amended
its complaint to include. He stated:
What we have found is that there are times when -
I mean that's simply sort of sidestepping the
requirement. If we're to believe that substantial
evidence should be found for every claim that
goes to hearing, then if a new issue comes up in
discovery for which there has been no finding of
substantial evidence, this simply provides that
it goes back to that process. An investigator
looks at it and determines if there's substantial
evidence before that complaint can be amended and
go forward so that the employer or the respondent
can have the benefit of the informal process of
going back through investigation, a response on
the sex discrimination case, for example, and an
opportunity to conciliate. And perhaps, in the
face of the new evidence, conciliation might
actually be more likely, who knows? But it's just
a matter of fairness that that's the door that
opens to hearing - substantial evidence. It
should be there for every claim that's asserted.
MR. NORDSTRAND then said the commission has taken the view
that it has a 10.5 percent interest rate available to it.
The bill will tie that rate to the standard interest rate
charged by other agencies.
Regarding the remedies available, MR. NORDSTRAND said AS
18.80.130(a) contains a list of possibilities the HRC can
award and says it can award any appropriate relief. In
DOL's estimation, it is simpler to list what the actual
remedies are in a system that is designed to have limited
remedies. DOL identified the injunctive relief
reinstatement, training requirements, and financial
remedies used by the HRC. The financial remedies consist of
back pay and front pay, which is from the time of the
hearing forward to remediate any difficulties in putting
that person back into the workforce at the same pay level.
DOL codified that.
MR. NORDSTRAND indicated the controversial part is the cap
on the front pay. DOL's original cap in the bill was set at
two years of wages. The Senate State Affairs Committee
lowered that cap to one year. He pointed out the bill
contains a standard of what a complainant must prove to be
eligible for front pay [bottom of page 4]. He noted that
DOL discussed this bill with the HRC and found the
commission to be in agreement with the proposed changes
with the exception of the front pay issue. DOL believes
that in order to divine what economic damages are in an
employment case, one has to determine how much the employee
would have earned if he or she had not been discriminated
against. The amount that person earned in alternative
income is then subtracted. Front pay is a different animal,
in that no one knows what income he or she will earn in the
future and how far out into the future that money should be
awarded.
AN UNIDENTIFIED SPEAKER asked how that number is
determined.
MR. NORDSTRAND said the compromise was to cap that amount.
DOL believes this system was designed to provide limited
remedies by the government, rather than taking a case to
court. He pointed out the language in the current version
of the bill doesn't necessarily support an award of front
pay. The HRC has interpreted that language to mean that
front pay is available but that point could be argued.
SENATOR THERRIAULT asked Mr. Nordstrand for that citation.
MR. NORDSTRAND pointed to Section 6(a)(1).
SENATOR FRENCH referenced the word change in Sec. 18.80.100
and asked the difference between "practice" and "conduct."
MR. NORDSTRAND said that word change was made for the sake
of consistency. He believes "practice" is the better word
because the word "conduct" could be interpreted to mean an
action. He noted the HRC did not object to that change.
SENATOR FRENCH responded that his "first blush" response is
that a "conduct" is something a person does once, while a
"practice" is something that is done more than once.
8:30 a.m.
SENATOR OGAN agreed with Senator French's interpretation.
MR. NORDSTRAND maintained that DOL was making no attempt to
change the scope of what the HRC or act does; that change
was simply an attempt to use better language.
SENATOR FRENCH asked if the EEOC does summary judgment
motions and dismissals.
MR. NORDSTRAND replied, "Well certainly the EEOC, when they
go to court, are subject to all of the federal rules of
civil procedure."
SENATOR FRENCH asked if the EEOC has an in-house type of
system, similar to the HRC.
MR. NORDSTRAND explained:
No, the EEOC itself doesn't - with rare
exception. There are some very rare exceptions
that involve political appointees where the EEOC
has a hearing officer system that is then subject
to appeal, I believe, to the Circuit Court. It's
an odd system designed to take the political
issues out of the local courts I think. Other
than that, they don't have a commission that sits
like the Human Rights Commission as an
adjudicator that can award relief. They have to
go downtown to the courthouse and so when they
get there, they would have the full benefit of
Civil Rule 56 for summary judgment.
CHAIR SEEKINS asked Ms. Fitzpatrick to testify.
MS. LISA FITZPATRICK, chair of the HRC, told members the
HRC consists of seven individuals. She noted, in response
to a statement made by Mr. Nordstrand about remedies
available to the HRC, the HRC believes that Section 6(a)(1)
will not provide enough relief to make the complainant
"whole." The HRC is involved in ongoing discussions with
the Governor about its concerns and is hopeful that they
can agree on language that addresses those concerns. The
HRC believes the existing language is not comprehensive
enough and would prefer to use a "catch-all" phrase or to
use an enumerated list of remedies.
CHAIR SEEKINS asked if the HRC has a guideline for
appropriate remedies.
MS. FITZPATRICK said the guidelines are set to allow the
HRC to provide "whole" relief. The HRC has never awarded
any non-economic damages, however, if an employee is ill,
loses his job and medical insurance and incurs huge medical
costs, the language in the bill would prevent the HRC from
requiring that individual to be compensated for those
medical costs.
MR. NORDSTRAND informed members that DOL met with the HRC
and presented the bill. The HRC provided written comments,
from which DOL made significant changes to the bill, for
example removal of a provision that would allow payment of
attorney's fees to the prevailing employer. Other changes
were made in regard to mitigation of damages and amending
complaints. The HRC asked for four specific changes and the
only change DOL and the HRC could not agree on was front
pay. He said he was unaware that the HRC met and decided to
challenge the remedy section of the bill. His understanding
was that the only issue that remained was that of front pay
and the HRC's vote to cap front pay at two years failed
with 4 against and 3 in favor.
CHAIR SEEKINS asked if the HRC pays all attorneys fees for
the complainant.
MR. NORDSTRAND said it does.
CHAIR SEEKINS asked if the employer cannot recover any
damages if the employer prevails.
MR. NORDSTRAND said that is not specifically precluded. A
provision at the end of the act says the HRC can award
attorneys fees, however, the HRC does not do that. He
explained:
In other words, if you go through a whole hearing
and at the end there's a question should the
commission award attorneys' fees, well they're
not going to award attorneys' fees. They could
theoretically seek attorneys' fees to cover their
costs - I mean they have a human rights advocate
who is proceeding. I don't know that they do
that. And if they were to award, say if the
employer were to win the case, the only party
against whom they could award attorneys' fees
would be the commission. In other words, they'd
be awarding fees against themselves essentially
because the control of the case going through
hearing is with the executive director. It's not
with the individual, the employee, per se, and
they don't actually represent the employee in
these hearings. They represent their interests.
So, there's power in the statute to award
attorneys' fees but they don't do it, so an
employer gets nothing if they win.
CHAIR SEEKINS asked if the case was in court, the parties
would be subject to Rule 82.
MR. NORDSTRAND said that is correct. If an attorney brought
the case to court and the employer were to prevail, partial
attorneys' fees would be awarded under Rule 82.
CHAIR SEEKINS asked Ms. DeYoung to address Senator French's
concern about the word change from "conduct" to "practice."
MS. JAN DeYOUNG, Assistant Attorney General, DOL, said her
recollection is that no one had a problem with the word
"conduct," but several phrases were used throughout the
bill so the purpose was to provide consistency. She said
she had a particular concern with using the word
"discrimination" by itself because only unlawful
discrimination is problematic. Many differences are
recognized in the law as valid discrimination. She said her
point is that no one was concerned that the word "conduct"
was bad; the concern was with inconsistency throughout the
statutes.
MR. NORDSTRAND said AS 18.80.110, the original substantial
evidence language, says if the investigator determines that
the allegations are supported by substantial evidence, the
investigator shall immediately try to eliminate the
discrimination. He explained that parts of the act speak
just to discrimination, yet people act discriminatorily all
of the time and those acts may or may not be illegal. DOL
was attempting to make the language more precise.
SENATOR FRENCH asked, for the record, if Mr. Nordstrand is
saying it is his belief that nothing about that word change
would prevent a person from bringing a complaint before the
HRC based on a single act.
MR. NORDSTRAND responded, "Absolutely not, that is a
practice."
MS. FITZPATRICK clarified, regarding the HRC's concern
about the relief provision, the HRC did not pay sufficient
attention to that provision during the first go-around and
did not appreciate the gravity of it. Upon closer scrutiny,
the HRC realized it will create a significant problem and
decided to meet. The six commissioners present felt it
needed to be addressed.
CHAIR SEEKINS asked if the HRC discussed that provision
after it met with DOL.
MS. FITZPATRICK said it did. She furthered that Mr.
Nordstrand was out of town at the time so she ended up
speaking with Mr. Tibbles about the problem.
CHAIR SEEKINS announced that with no further participants,
public testimony was closed.
SENATOR FRENCH asked Chair Seekins if it was his intent to
move the bill from committee today or whether he planned to
give the two parties time to work on the disputed topic.
CHAIR SEEKINS asked Mr. Nordstrand if DOL wished to have
additional time to talk to the HRC.
MR. NORDSTRAND believed it was safe to say that DOL has
agreed to disagree with the HRC on that issue. He explained
that the general concept is that the bill will either
contain a specific list of remedies that identify what can
and cannot be done or it will have open-ended relief
language, and that is precisely the issue that DOL is
trying to solve. DOL believes that people who participate
in a government-funded process should expect limited
remedies from that process. He noted that unfettered
remedies permit interesting settlement negotiations. For
example, he learned in DOL's discussions with the HRC, that
front pay has settlement implications because it can be
calculated at any number and be used as a negotiating tool.
Any good lawyer would have an economist try to maximize the
front pay number. If the economist determined the front pay
to be $50,000 for 5 years, another $250,000 would be on the
negotiating table. DOL is saying that some level of
certainty, in this case one year of front pay, is a fair
balance and will create more certainty of outcome and
encourage settlement. It will also give reasonable
expectations to the claimants. He repeated that DOL simply
disagrees that an appropriate list is limiting.
CHAIR SEEKINS asked, using Ms. Fitzpatrick's example of an
employee who lost a job with medical benefits and incurred
huge medical costs, whether an employer would be required
to pay back pay and the loss of benefits.
MR. NORDSTRAND said, in general, part of the compensation
package would be the benefit package. However, there is an
ongoing debate about whether the employer would be liable
for the cost of insurance versus the consequential damages.
DOL falls on the side of the employer's benefits being the
defining term. He noted that although consequential things
can happen, many of those things are within the employee's
control. He said there are people who have no job and not
enough money to buy medical insurance and incur medical
costs. If those costs are so consequential to that case,
for example if a catastrophic medical injury occurs, then
the case should be in court. He said his friends in the
plaintiffs' employment bar often monitor the HRC's cases
and take the good cases to court. He continued, "There is a
limit. Yes. And in this case, we would not be funding a
million dollars of medical costs that were uninsured. We
would be funding, and our understanding would be, the
benefit cost."
CHAIR SEEKINS asked if the [HRC] would be making the
determination on whether the practice that caused the
person to lose his job was discriminatory but the court
system would determine the damages that resulted from the
lost job because the HRC is not the proper venue for that
kind of a claim.
MR. NORDSTRAND replied, "Any more than punitive damages is
because they don't have the authority to award those
damages."
SENATOR FRENCH thought the HRC exists because many cases
are for perhaps $5,000 and, although that amount might be a
crushing amount for the plaintiff, it is not worth an
attorney's time.
MR. NORDSTRAND said that is certainly true and the small
cases are the business of the HRC to some degree, but the
director will be given discretion. He noted there is a
point where one has to consider whether the cost of
litigating such a case is worth the HRC's time to go
through the entire proceeding. He said the EEOC is very
good at getting the big cases where it tackles class action
suits or cases that will set things right for a lot of
employees. But the HRC has been bogged down with a lot of
cases that perhaps shouldn't go to hearing and it would be
more advantageous to use its resources for investigations.
He offered that a person with $5,000 in medical costs could
also file a claim in small claims court.
CHAIR SEEKINS agreed that small claims court is very
effective and efficient but expressed concern that the
financial limit for that court is too low.
SENATOR THERRIAULT asked if a plaintiff could take the
HRC's determination as fact before the court.
MR. NORDSTRAND said that is an interesting question. He
commented:
It would be subject to review, like any
administrative agency finding, but it would go up
through that process and, for example, if you -
theoretically, I haven't seen it done but
theoretically, if you had a finding here of
discriminatory conduct, you might be able to go
forward in court and seek other remedies too.
SENATOR THERRIAULT said a person without the money to go to
court who went through the HRC process first and was
successful would be getting something of tremendous value
without going to court.
MR. NORDSTRAND said DOL discussed whether to include an
opt-out provision so that a person who went through the HRC
process would be opting out [of court].
MS. DEYOUNG stated that provision was not included in the
bill.
TAPE 04-46, SIDE B
CHAIR SEEKINS said his concern was that this bill would not
give a person who was collaterally damaged recourse within
the system but his concern has been addressed.
MS. DEYOUNG informed members that regarding the
substitution of the word "practice" for "conduct,"
discriminatory practices are defined in the human rights
law, which is why the word "practice" was chosen.
CHAIR SEEKINS noted he saw no reason to hold the bill in
committee.
SENATOR THERRIAULT moved SB 354 from committee with
individual recommendations and its zero fiscal note.
CHAIR SEEKINS announced that with no objection, the motion
carried. He then announced a 5-minute recess.
CSHB 447(JUD)-2004 REVISOR'S BILL
MS. PAMELA FINLEY, Revisor of Statutes, Legislative Legal
and Research Services, reminded members that a revisor's
bill is produced every year to clean up the statutes
without making any policy changes. She told members that a
good deal of CSHB 447(JUD) addresses the executive orders
that were implemented last year. In addition, the attorney
general requested that HB 447 include a provision to update
a statute to match the Carlson case. She said she does not
normally include changes in the revisor's bill to conform
to court cases but, in this particular case, that change
seemed reasonable.
SENATOR FRENCH asked for an explanation of the Carlson
case.
MS. FINLEY said it pertained to the resident and non-
resident fee differential in limited entry permits.
CHAIR SEEKINS asked where that provision is in CSHB
447(JUD).
MS. FINLEY cited Section 6 on page 7 and 8 of the bill and
explained that the court essentially said that (C) will not
pass constitutional muster, (D) sort of will, and that (3)
will not. The changes in the bill will change the statute
to say what the court found acceptable. She added that some
of the changes in Section 11 pertain to conforming changes
that were not made in the executive order.
CHAIR SEEKINS noted that no one signed up to testify and
there were no further questions or discussion.
SENATOR OGAN moved CSHB 447(JUD) from committee with its
zero fiscal note and asked for unanimous consent.
CHAIR SEEKINS announced that without objection, the motion
carried.
HB 514-CHILD SUPPORT ENFORCEMENT/CRIMES
MR. JOHN MAIN, staff to Representative Pete Kott, reminded
members that at the last meeting, Senator French had asked
for an amendment [to clarify the language in Section 5
(2)(A)-(C) on pages 3 and 4].
CHAIR SEEKINS confirmed that amendment is now labeled XA.1
and entertained a motion to consider the amendment as
Amendment [2].
SENATOR OGAN so moved.
SENATOR FRENCH asked for an explanation.
MR. MAIN said it basically specifies that the standard is
"intentionally" in subsections (A)-(C) and renumbered those
sections.
CHAIR SEEKINS and SENATOR FRENCH felt that Amendment [2]
reads better than the original language.
SENATOR FRENCH asked what lines 6 through 15 on page 2 of
Amendment 1 would do.
CHAIR SEEKINS clarified that the amendment should be
referred to as Amendment 2.
MR. MAIN explained that provision has been in the statute
and CSED has had no problem with that language in the
prosecution of cases.
CHAIR SEEKINS questioned whether the only change is to
correct the numbering sequence to conform to the changes
made in the first part of Amendment 2.
MR. MAIN said that is correct.
SENATOR FRENCH removed his objection to the adoption of
Amendment 2 so it was adopted. He then asked Mr. Main the
theory behind revoking sport hunting and fishing licenses
for non-payment of child support in Section 9 on page 4.
MR. MAIN told members that deal was brokered between the
federal government and the State of Alaska. The federal
government requires that hunting and fishing licenses be
revocable but Alaska does not track hunting and fishing
licenses in the same way that other states do. Other states
have an updated database; in Alaska, that information is
turned in to the state in February or May. The legislature
did not want to make the revocation of fish and game sport
licenses part of the earlier bill that provided for
revocation of occupational and drivers' licenses.
Therefore, the best remedy was to revoke the sport hunting
or fishing license at the time of a criminal conviction for
non-support. He explained:
There are two ways that it can be taken that way,
one is civil, which is to be held in contempt -
the court can take at that time or if the
individual is convicted of failure to pay child
support, criminal non-support misdemeanor, as it
presently is, and that satisfied the federal
government. They're not happy about it but
they're satisfied that at least there is a
provision with which to be able to remove the
hunting/fishing license. Basically, it's the
privilege of hunting and fishing as a sport
compared to subsistence, and that was one of the
issues that was placed under [AS]09.50.020. It
lists out what is considered a recreational
license and what is considered to be subsistence
and personal. Recreational is only considered to
be sports fishing and sport hunting. The personal
use fishing - dipnetting, that kind of stuff that
is exempted, subsistence fishing and subsistence
hunting is also exempted.
CHAIR SEEKINS said every resident in the state is
considered by state law to be a subsistence hunter, which
is why the state has tier 2 permits that anyone can apply
for. That is not the case under Alaska law for fishing and
there is no license for subsistence fishing. However, for
personal use fishing, a person must have a license. He was
not sure whether Alaska law differentiates between
recreational fishing and personal use fishing to feed one's
family.
MR. MAIN responded that personal use fishing under AS
16.05.940 is described as:
'personal use fishing' means the taking, fishing
for, or possession of finfish, shellfish, or
other fishery resources, by Alaska residents for
personal use and not for sale or barter, with
gill or dip net, seine, fish wheel, long line, or
other means defined by the Board of Fisheries;
MR. MAIN added that sport fishing is different than
personal use fishing.
CHAIR SEEKINS said the same license exists for sport and
personal use fishing.
MR. MAIN noted that sport fishing is described under AS
16.04.940(29); while personal use fishing is described
under AS 16.04.940(24). Sport fishing is described as:
...means the taking of or attempting to take for
personal use and not for sale or barter any fresh
water, marine, or [anadromous] fish by hook or
line held in the hand, or by hook and line with
the line attached to a pole or rod which is held
in the hand or closely attended, or by other
means defined by the Board of Fisheries;
CHAIR SEEKINS referred to his own fishing license and noted
it did not contain a category for personal use. He
questioned how a person could personal use fish to feed his
family but not recreational fish.
SENATOR OGAN indicated that a person must buy a sport fish
license to personal use fish.
CHAIR SEEKINS expressed confusion about whether or not a
sport fish license could be revoked if it is not being used
as a recreational license.
MR. MAIN pointed out the language in the present law says
"the court may" and in the 24 cases in which individuals
were convicted of criminal non-support, CSED did not
request the revocation of recreational fishing licenses and
the court did not order any such revocations.
CHAIR SEEKINS suggested, for the sake of accuracy, putting
language in the bill to explain that a recreational license
does not mean a license necessary to participate in
personal use or subsistence hunting and fishing.
MR. MAIN noted that Senator Ogan said he wrote most of that
statute and that it doesn't apply to those items that are
not considered to be recreational licenses.
CHAIR SEEKINS announced a brief recess.
9:30 a.m.
Upon reconvening, Senator Therriault rejoined the
committee.
CHAIR SEEKINS commented that the key word in the penalty
for aiding and abetting in the non-payment of child support
is to "restrict" a recreational fishing or hunting license
for a period not to exceed one year, as defined in AS
09.50.020(c). He said that subsection refers to a sport
fishing license unless it is required to participate in
personal use or subsistence fishing. He said this is a
toothless law except that the court could order a person to
only use a hunting or fishing license for the purpose of
personal use or subsistence, and not for recreation.
SENATOR FRENCH questioned whether the law should read, "the
court may restrict" and not address suspend or revoke
because the court cannot suspend a license.
MR. MAIN repeated this was a way to comply with the federal
mandate but not require the Alaska Department of Fish and
Game (ADF&G) to create a database that was accessible by
others.
CHAIR SEEKINS said it just seems that all an offender would
have to say is that he or she needs the license for a
personal use fishery. He said he feels comfortable with
that because he did not want a person's personal use or
subsistence license to be affected.
Members then updated Senator Therriault on the issue they
were discussing.
SENATOR THERRIAULT asked if that penalty has been imposed
on people for non-support and this bill will now impose it
on those who aid and abet the offender.
MR. MAIN said that is correct.
SENATOR FRENCH questioned how an ADF&G officer would look
at a sportfishing license, know the difference, and enforce
that provision.
CHAIR SEEKINS said he couldn't imagine.
SENATOR OGAN recalled that requiring social security
numbers on fishing licenses was very controversial several
years ago and he believed that law was amended to remove
that requirement. He stated, "I suppose we may hear that
they have to wear a scarlet letter or other things as well,
since we do all this stuff to them."
CHAIR SEEKINS noted that fishing and hunting licenses have
been very useful in terms of finding people.
SENATOR OGAN told members he heard from a man last night on
this topic who did not want to go on record, which he
thinks is common because of the scarlet letter factor. He
said as a legislator, he has heard many constituents
complain about CSED and he relayed some of their stories to
members. He expressed concern that those people who lose
jobs or have other problems and get behind with child
support payments will now become felons and that there is a
whole contingent of people who do not testify and are not
being represented. He said he does not like people who will
not help support their children but he cannot support the
bill as is because it will make some people felons who are
trying to support their kids but cannot.
CHAIR SEEKINS said he shares some of Senator Ogan's
concerns but two things on page 2 give him comfort. The
first is on line 2, which is the phrase, "without lawful
excuse," to provide the support. That phrase is defined on
lines 23, 24, and 25 as having the financial ability or the
capacity to acquire that ability through the exercise of
reasonable efforts. He said if the person Senator Ogan
referred to does not have the financial capacity, that
would be a lawful excuse unless the person has the capacity
to acquire that ability and refuses to do so.
MR. MAIN confirmed that is true.
CHAIR SEEKINS said someone who has fallen on hard times and
cannot support their child would not fall under this
statute.
MR. MAIN said given that CSED has only four investigators
and has been able to prosecute only 24 cases in 4 years,
this bill will not increase its caseload but it will allow
CSED to negotiate deals with people because the law will
have more teeth. He noted there will always be people who
refuse to pay, no matter what, and people who cannot afford
to pay, no matter what.
CHAIR SEEKINS asked what process CSED would have to go
through to prosecute a person with a class C felony.
MR. MAIN said a supervisor would review a case. If the
amount owed is significant (at least $15,000), and there
has been no record of payment, except perhaps a permanent
fund dividend, all civil remedies have been exhausted, and
no data shows the individual is earning wages or has
assets, the supervisor would refer the case to the
investigations unit. That unit would gather evidence
through subpoenas and interviews, and present findings to
an assistant attorney general. The assistant attorney
general would then review the case to determine whether it
meets the criteria. If it appears the case will be
successful, she will take that case to a grand jury. If the
grand jury give the go ahead, the DOL would proceed with
prosecution. He pointed out that red flags could be raised
at many points along the way to where the case would not be
pursued as a felony.
MS. WENDLANDT added that the requirement that a person have
lawful excuse comes down to, in most cases, that person's
ability to pay. She said Mr. Main's description of the
process is absolutely correct.
CHAIR SEEKINS asked if DOL is looking for the person who is
living large on their children and refusing to pay any
child support.
MS. WENDLANDT said that is correct.
SENATOR OGAN said although the lawful excuse language is in
the bill, the policy is to not let people in arrears drive
or to have an occupational license. Therefore, that person
cannot work, hire a lawyer, or get the support order
modified. He expressed concern that the policy creates a
death spiral and is counterproductive to the children, as
they will get no support. He said he has talked to a lot of
men who see no way out and ultimately the children are
hurt.
SENATOR THERRIAULT said he has heard from people over the
years that they can pay their child support obligation
under Rule 90.3 but to do so would disenfranchise their
current families. He questioned how to balance the
possibility that a person might have to move his current
family out on to the street to pay a child support
obligation from a previous family.
MR. MAIN said if that individual will struggle to pay, he
can request a hearing before a revenue hearing officer. He
indicated he is aware of more than one case in which the
hearing officer reduced the child support obligation. In
addition, CSED has reduced payments when establishing
modifications when a second family is involved.
SENATOR FRENCH asked at what stage of the process would a
person lose a driving license.
MR. MAIN said a person does not have to be convicted of
criminal non-support to lose a driver's license or
occupational license. CSED is asking the individual to come
to the table at that point because the individual owes a
lot of money. If the person comes to the table and sets up
a payment agreement, the person can have his driver's and
occupational licenses back. In most of those cases, the
individuals have not paid any support for quite some time.
He repeated that a person could be in arrears for 11 months
before losing the ability to drive. He said that CSED is
setting up programs to outreach to rural areas to help
people understand the process and to help people pay their
obligation on an ongoing basis. He said if the person has a
hardship issue, CSED will reduce payments until the person
is back on his feet.
CHAIR SEEKINS asked how CSED would deal with an obligor who
says he cannot even begin to pay until he gets his driver's
license back.
MR. MAIN said it does.
SENATOR OGAN stated:
Part of my argument, [indisc.] is that we've
given into the federal mandates to suck up the
federal money and we've given judicial powers to
bureaucrats. Okay - you lose your license. Okay -
you can't operate your business anymore just
because, you know, then go for a hearing - there
might be some hearing process in the department
but...[END OF TAPE].
TAPE 04-47, SIDE A
CHAIR SEEKINS agreed with Senator Ogan but said, at this
point, he is questioning what to do with the person who
owes over $10,000 in child support or has not made a single
payment for 24 months and has been previously convicted
under this section or a similar provision in another
jurisdiction and the aggregate amount accrued is more than
$5,000 and has no lawful excuse.
SENATOR OGAN said the second offense would be a
misdemeanor. He noted a person would lose his or her
ability to own a weapon if convicted with a class C felony.
He pointed out these people are not violent and the idea
behind a felony is that it is a crime committed with evil
intent. He repeated that the constitution bans putting
people into prison for debt. He suggested that the judge
would come down harder on a second misdemeanor conviction.
SENATOR THERRIAULT commented that this is the worst part of
a legislator's job - trying to legislate people's lives.
CHAIR SEEKINS announced that HB 514 would be the first bill
heard at the committee's next meeting. He then adjourned
the meeting at 10:00 a.m.
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