03/16/2020 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB76 | |
| SB8 | |
| SJR13 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 76 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SJR 13 | TELECONFERENCED | |
| += | SB 8 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
March 16, 2020
1:32 p.m.
MEMBERS PRESENT
Senator John Coghill, Chair
Senator Peter Micciche, Vice Chair
Senator Shelley Hughes
Senator Jesse Kiehl
MEMBERS ABSENT
Senator Lora Reinbold
COMMITTEE CALENDAR
SENATE BILL NO. 76
"An Act repealing the Workers' Compensation Appeals Commission;
relating to decisions and orders of the Workers' Compensation
Appeals Commission; relating to superior court jurisdiction over
appeals from Alaska Workers' Compensation Board decisions;
repealing Rules 201.1, 401.1, and 501.1, Alaska Rules of
Appellate Procedure, and amending Rules 202(a), 204(a) - (c),
210(e), 601(b), 602(c) and (h), and 603(a), Alaska Rules of
Appellate Procedure; and providing for an effective date."
- HEARD & HELD
SENATE BILL NO. 8
"An Act restricting the release of certain records of
convictions; amending Rule 37.6, Alaska Rules of Administration;
and providing for an effective date."
- HEARD & HELD
SENATE JOINT RESOLUTION NO. 13
Proposing an amendment to the Constitution of the State of
Alaska relating to abortion.
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 76
SHORT TITLE: REPEAL WORKERS' COMP APPEALS COMMISSION
SPONSOR(s): SENATOR(s) WIELECHOWSKI
03/06/19 (S) READ THE FIRST TIME - REFERRALS
03/06/19 (S) L&C, JUD, FIN
01/28/20 (S) L&C AT 1:30 PM BELTZ 105 (TSBldg)
01/28/20 (S) Heard & Held
01/28/20 (S) MINUTE(L&C)
01/30/20 (S) L&C AT 1:30 PM BELTZ 105 (TSBldg)
01/30/20 (S) Heard & Held
01/30/20 (S) MINUTE(L&C)
02/11/20 (S) L&C AT 1:30 PM BELTZ 105 (TSBldg)
02/11/20 (S) Moved CSSB 76(L&C) Out of Committee
02/11/20 (S) MINUTE(L&C)
02/12/20 (S) L&C RPT CS 3DP SAME TITLE
02/12/20 (S) DP: BISHOP, STEVENS, REVAK
03/13/20 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/13/20 (S) Scheduled but Not Heard
03/16/20 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: SB 8
SHORT TITLE: ACCESS TO MARIJUANA CONVICTION RECORDS
SPONSOR(s): SENATOR(s) BEGICH
01/16/19 (S) PREFILE RELEASED 1/7/19
01/16/19 (S) READ THE FIRST TIME - REFERRALS
01/16/19 (S) JUD
01/25/19 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
01/25/19 (S) Heard & Held
01/25/19 (S) MINUTE(JUD)
03/04/20 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/04/20 (S) Heard & Held
03/04/20 (S) MINUTE(JUD)
03/06/20 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/06/20 (S) Scheduled but Not Heard
03/16/20 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: SJR 13
SHORT TITLE: CONST. AM: PROHIBIT ABORTION/FUNDING
SPONSOR(s): SENATOR(s) HUGHES
01/21/20 (S) READ THE FIRST TIME - REFERRALS
01/21/20 (S) HSS, JUD, FIN
02/26/20 (S) HSS AT 1:30 PM BUTROVICH 205
02/26/20 (S) Heard & Held
02/26/20 (S) MINUTE(HSS)
03/06/20 (S) HSS AT 1:30 PM BUTROVICH 205
03/06/20 (S) Moved SJR 13 Out of Committee
03/06/20 (S) MINUTE(HSS)
03/09/20 (S) HSS RPT 3DP
03/09/20 (S) DP: WILSON, SHOWER, GIESSEL
03/09/20 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/09/20 (S) Heard & Held
03/09/20 (S) MINUTE(JUD)
03/11/20 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/11/20 (S) Heard & Held
03/11/20 (S) MINUTE(JUD)
03/13/20 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/13/20 (S) Heard & Held
03/13/20 (S) MINUTE(JUD)
03/16/20 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
WITNESS REGISTER
SENATOR WIELECHOWSKI
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified as sponsor of SB 76.
NATE GRAHAM, Staff
Senator Bill Wielechowski
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented a sectional analysis for SB 76 on
behalf of the sponsor.
MARTHA TANSIK, Attorney
Barlow Anderson, LLC
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to SB 76.
ANDY HEMENWAY, representing self
Juneau, Alaska
POSITION STATEMENT: Testified in opposition to SB 76.
ERIC CROFT, Attorney
Croft Law Office
Anchorage, Alaska
POSITION STATEMENT: Testified in support of SB 76.
MICHAEL BUDZINSKI, Attorney
Meschke Paddock Budzinski
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to SB 76.
LAURA BONNER, representing self
Anchorage, Alaska
POSITION STATEMENT: Testified in support of SB 76.
SENATOR TOM BEGICH
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified as sponsor of SB 8.
ALEX JORGENSEN, Staff,
Senator Tom Begich
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Reviewed the changes in Version S of SB 8.
LACEY WILCOX, President
Alaska Marijuana Industry Association
Juneau, Alaska
POSITION STATEMENT: Testified in support of SB 8.
KAREN LEWIS, Pro Life Alaska
Wasilla, Alaska
POSITION STATEMENT: Testified in support of SJR 13.
CATHY LAW, representing self
Anchorage, Alaska
POSITION STATEMENT: Testified in support of SJR 13.
SERENA O'HARA-JOLLEY, representing self
Fairbanks, Alaska
POSITION STATEMENT: Testified in opposition to SJR 13.
MARCI HAWKINS, representing self
Sutton, Alaska
POSITION STATEMENT: Testified in opposition to SJR 13.
WENDY PERKINS, representing self
Anchorage, Alaska
POSITION STATEMENT: Testified in support of SJR 13.
CHERYL KAJDAN, representing self
Palmer, Alaska
POSITION STATEMENT: Testified in support of SJR 13.
ACTION NARRATIVE
1:32:21 PM
CHAIR JOHN COGHILL called the Senate Judiciary Standing
Committee meeting to order at 1:32 p.m. Present at the call to
order were Senators Hughes, Kiehl, and Chair Coghill. Senator
Micciche joined the meeting shortly thereafter.
SB 76-REPEAL WORKERS' COMP APPEALS COMMISSION
1:32:59 PM
CHAIR COGHILL announced that the first order of business would
be SENATE BILL NO. 76, "An Act repealing the Workers'
Compensation Appeals Commission; relating to decisions and
orders of the Workers' Compensation Appeals Commission; relating
to superior court jurisdiction over appeals from Alaska Workers'
Compensation Board decisions; repealing Rules 201.1, 401.1, and
501.1, Alaska Rules of Appellate Procedure, and amending Rules
202(a), 204(a) - (c), 210(e), 601(b), 602(c) and (h), and
603(a), Alaska Rules of Appellate Procedure; and providing for
an effective date." [CSSB 76(L&C) was before the committee].
1:34:01 PM
SENATOR WIELECHOWSKI, Alaska State Legislature, Juneau, Alaska,
speaking as sponsor, stated that SB 76 would save the state
$425,000 per year. He explained that if a worker in this state
is injured on the job, the person files a workers' compensation
claim. He said the number of claims has diminished over time. In
2018, there were 17,694 reports of injury or occupational
illness as compared to 2008 when there were 23,000 reports of
injury. Disputes come before the Workers' Compensation Board
("Board") which consists of a hearing officer, typically an
attorney, and two representatives, one from organized labor and
one from management. Those members are selected by the governor
and confirmed by the legislature. Of the 17,694 claims in 2018,
the board held 231 hearings. An appeal of a Board decision would
go to the Workers' Compensation Appeals Commission
("Commission"). The Board's hearings are down from 255 in 2017,
he said.
He reviewed statistics for the number of cases that were
appealed to the Commission: in 2019, 19 cases; in 2018, 14
cases; in 2017, 10 cases; which is part of the reason to seek to
abolish the Commission. It costs $425,000 annually to pay for
the 10-19 cases the Commission hears. He offered his view that
these cases can be absorbed by the superior court. Before 2005,
the superior court handled workers' compensation appeals. This
bill would send any Workers' Compensation Board appeals to
superior court. Decisions by the Commission are not appealed to
superior court, which is an uncommon situation, he said.
SENATOR WIELECHOWSKI said the argument for creating the Workers'
Compensation Appeals Commission was that the public would
benefit from having a commission with specific expertise in
workers' compensation. He argued that these cases are no more
complex than family law, mental health issues, or other legal
issues that the superior court regularly handles. He opined that
the specific expertise claim has not borne out because roughly
50 percent of the Commission's cases that are appealed to the
Alaska Supreme Court are reversed. In 2005, at the time the
Commission was created, testimony indicated that about 25
percent of the workers' compensation cases decided by the
superior court were appealed to the Alaska Supreme Court. He
reviewed the percentages of Commission cases that were
ultimately appealed to the Alaska Supreme Court: 79 percent in
2018, 80 percent in 2017, and 50 percent in 2016. Another
argument in favor of creating the Workers' Compensation Appeals
Commission was that cases would be decided more quickly. Per the
legislative minutes, a typical case in 2005 took 8 to 18 months
to be resolved in superior court. In 2018, the Commission's
report indicated that the average case was taking a little over
one year.
1:39:49 PM
SENATOR WIELECHOWSKI reported that similar bills have been
introduced, such as the bill that passed the House five years
ago, but did not pass the Senate.
1:40:36 PM
SENATOR WIELECHOWSKI reviewed slide 2, Senate Bill 76.
Repeals the Alaska Workers' Compensation Appeals
Commission.
Returns jurisdiction over Workers' Compensation appeal
to the Superior Court.
Saves $425,900 per year
Helps fill the Workers' Compensation budget deficit
and make Alaska Workers' Compensation system more
solvent.
1:40:58 PM
SENATOR WIELECHOWSKI reviewed slide 3, a flowchart describing
the process, that a worker files a workers' compensation claim
to the Workers' Compensation Board (Board), and the process when
a party appeals the Board's decision under the current system
and under SB 76. Under the current system, Board appeals are
heard by the Workers' Compensation Appeals Commission.
Previously, Workers' Compensation Board appeals were heard by
superior court and if either party appealed the Commission's
decision, the case would go before the Alaska Supreme Court. SB
76 would revert to the prior system and abolish the Commission.
1:42:09 PM
SENATOR WIELECHOWSKI reviewed slide 4, SB 76 Will Save $425,900
Per Year.
Currently the Commission has 2 full-time employees and
pays for commissioners' travel and per diem.
The Court System has submitted a zero fiscal note.
He said that the court system can absorb the case load at no
additional cost.
1:42:25 PM
SENATOR WIELECHOWSKI reviewed slide 5, a bar chart illustrating
the number of cases filed and published decisions of the
Commission between 2005 and 2019.
The Workers' Compensation Appeals Commission Workload
has declined from 49 cases filed and 42 published
decisions in 2007 to 22 cases filed and 18 decisions
issued in 2019.
He said the number of Workers' Compensation Appeals Commission
published decisions have ranged between 10 and 20 cases per
year.
1:43:25 PM
SENATOR WIELECHOWSKI reviewed slide 6, related to the House
Department of Labor and Workforce Development Finance
Subcommittee, February 25, 2015:
"The Workers' Compensation Appeals Commission is an
ineffective division The Commission during the
calendar year of 2013 closed 30 cases for a closure
rate of 67 percent with an average time from filing to
closure of seven months. This closure rate and average
time for closure is not demonstrably better than the
process was before the establishment of the
commission."
House Department of Labor and Workforce Development
Finance Subcommittee, February 25, 2015.
1:44:10 PM
SENATOR WIELECHOWSKI turned to slide 7, the Workers'
Compensation Appeals Commission Has Not Closed Cases Faster than
the Courts:
The Superior Court took "8 to 18 months" to decide
Workers' Compensation Appeals.
It was estimated that the Commission could decide
cases in 6 months.
Instead, in 2018 it averaged 371 days (12.2 months) to
decide cases.
Sources: Testimony of Paul Lisankie, Director,
Division of Workers' Compensation, Senate Labor and
Commerce Committee, Marc 10, 2005.
Alaska Workers' Compensation Appeals Commission Annual
Report for Calendar Year 2018, March 11, 2019
1:44:35 PM
SENATOR WIELECHOWSKI reviewed slide 8, SB 76 Will Reduce Appeals
to the Supreme Court:
When the superior court handled appeals approximately
25 [percent] of their decisions were appealed to the
Supreme Court.
Since the Commission was created in 2005, 45 [percent]
of its decisions have been appealed to the Supreme
Court.
Since 2011, 71% of Commission decisions have been
appealed.
Sources: Testimony of Doug Wooliver administrative
attorney, Alaska Court System, Senate Labor and
Commerce Committee, March 10, 2005.
Legislative Research Services Report 19-175.
1:44:40 PM
SENATOR MICCICHE pointed out one slide showed the average, but
it was not "apples to apples." He asked if he had any idea of
the average number of cases for superior court.
SENATOR WIELECHOWSKI answered that this reflects Doug Wooliver's
testimony but he could produce the exact testimony. The superior
court was taking 8 to 18 months, but Mr. Wooliver did not give
an average.
SENATOR MICCICHE suggested that it is likely better than 12.2
months.
SENATOR WIELECHOWSKI responded that the Commission's average is
371 days per its report.
SENATOR COGHILL observed that 6 to 12 months is still better
than the superior court's timeframe of 8 to 18 months.
SENATOR WIELECHOWSKI agreed that the point was fair.
SENATOR MICCICHE requested the figures since the superior court
is likely more efficient.
SENATOR WIELECHOWSKI agreed to provide them.
SENATOR COGHILL said helping workers is important and he has
supported the Commission through the years. Nevertheless, he is
open to the discussion, especially if it will save money.
1:46:50 PM
SENATOR WIELECHOWSKI compared the number of cases appealed to
the Alaska Supreme Court. At the time the Commission was created
in 2005, about 25 percent of the superior court decisions were
appealed. Since the Commission has been created, roughly 45
percent of its cases are appealed. Also, that number has
increased to 70 percent since 2011.
CHAIR COGHILL pointed out that it is not possible to project the
actual number of cases that would be appealed to the superior
court. The Commission has been effective because it has whittled
down to the smaller, tougher cases that will get appealed to the
Alaska Supreme Court.
SENATOR WIELECHOWSKI offered to provide a breakdown of the
number of cases appealed to the Alaska Supreme Court.
1:48:44 PM
SENATOR WIELECHOWSKI turned to slide 9, which consisted of a bar
graph illustrating Workers' Compensation Tax Income is
Declining:
• Alaska Workers' Compensation and Safety Program Faces
a Growing Budget Deficit - SB 76 Will Help Fill It
• Workers' Compensation and Safety are funded by a tax
on Workers' Compensation payments
• These programs cost $9.1 million annually and are
projected to remain flat
• Saving $425,900 will help close the growing budget
gap.
Sources: Legislative Finance Division
Department of Revenue , Revenue sources Book, Fall
2019
SENATOR WIELECHOWSKI stated that in FY 2019, the program cost
$9.1 million and the workers' compensation tax that was
collected to fund the Workers' Compensation Safety program was
$8 million. The difference was made up by the general fund.
CHAIR COGHILL recalled that the funds would not actually be
saved but would be turned over to the safety program.
SENATOR WIELECHOWSKI responded that the tax that is collected on
workers' compensation policies helps to fund the whole system.
If there isn't enough money in the system, the gap is made up of
general funds. Saving $425,900 would help close the amount
needed from the general fund.
CHAIR COGHILL asked if the goal was to save money for the safety
program rather than making the system more efficient. He related
his understanding that the safety program needed money, but he
did not know that the bill would save any money.
SENATOR WIELECHOWSKI said the projected cost in FY 2021 is flat
at $9.1 million and it has been flat for several years. However,
the income is less because of fewer cases and the state has to
make up the $2.5 million gap. If the system costs are $425,900
less, it reduces the amount of general fund dollars that are
needed.
1:50:56 PM
SENATOR MICCICHE summarized the explanation and asked if this
would fill the gap or create a surplus.
SENATOR WIELECHOWSKI explained that there would still be a
deficit, but it would be less if $425,900 was deducted from the
overall $9.1 million program cost. He said the state must make
up the difference somehow and one option would be to raise the
employer tax.
1:51:54 PM
SENATOR WIELECHOWSKI reviewed slide 10, Bottom Line:
SB 76 saves $425,900 annually
Preserves parties' right to have their cases heard in
a timely manner
Will reduce appeals to the Supreme Court
Makes Alaska Workers' Compensation system more solvent
1:52:27 PM
NATE GRAHAM, Staff, Senator Bill Wielechowski, Alaska State
Legislature, Juneau, Alaska, presented the sectional analysis
for SB 76 on behalf of the sponsor. He read:
Section 1 establishes that the Workers' Compensation
Board (Board) shall maintain records of the repealed
Workers' Compensation Appeals Commission (Commission).
It also establishes that Commission decisions remain
as legal precedent unless overturned or modified by
the courts.
Section 2 removes references to the Commission.
Section 3 removes a reference to the Commission.
Section 4 removes a reference to the Commission.
Section 5 creates a new AS 23.30.126 governing appeals
of Workers' Compensation Board decisions.
Subsection (a) establishes that Board decisions and
orders become effective when filed, that these
decisions and orders can be modified or reconsidered,
and that a party may appeal a decision or order to the
superior court.
Subsection (b) establishes that Board decisions and
orders are not automatically stayed pending judicial
review and establishes the criteria for when a court
may issue a stay.
Subsection (c) establishes that factual findings made
by the Board shall be conclusive if supported by
substantial evidence and that AS 44.62.570 governing
administrative appeals shall apply to the appeals of
Board decisions.
Subsection (d) allows the director of the Division of
Workers' Compensation to intervene in appeals and to
file appeals if a party is not represented by an
attorney and the case presents an unsettled question
of law.
1:53:57 PM
Section 6 is a conforming amendment to reflect the
changes made by Section 5.
Section 7 removes a reference to the Commission.
Section 8 repeals the court rules related to the
Commission.
Section 9 repeals the statutes related to the
Commission.
Section 10 contains indirect court rule amendments to
reflect the changes made by Section 5.
Section 11 establishes which procedures apply to
appeals pending before the Commission between June 1
and December 1, 2020.
Subsection (a) establishes that the Commission shall
continue to handle cases through December 1, 2019 and
that the Commission shall continue all cases pending
on December 1, 2020
Subsection (b) establishes that the new procedure in
Section 5 does not apply to cases before December 1,
2020.
Subsection (c) establishes that the old statutes apply
for appeals of final decisions made by the commission
and issued by December 1st.
1:55:10 PM
Section 12 establishes transitional provisions.
Subsection (a) establishes that starting June 1, 2020
all new appeals of Board decisions shall be filed with
the Superior Court under Section 5.
Subsection (b) establishes that appeals of Commission
rulings issued by December 1, 2020 shall be filed with
the Supreme Court.
Subsection (c) ends the Commission's ability to order
reconsideration of cases on December 2, 2020. All
outstanding requests for reconsideration pending on
that date would be automatically rejected, and any
party whose request was denied may appeal their case
to the Supreme Court.
Subsection (d) requires the Commission to transfer the
files for all pending cases to the Superior Court on
December 2, 2020 and to provide the parties 30 days'
notice of the transfer of jurisdiction. If the court
finds that the records do not meet the requirements of
the Rules of Appellate Procedure, it may order the
Commission to make necessary changes and resubmit
them.
1:56:12 PM
Section 13 ends the terms of all Commission members on
December 31, 2020.
Section 14 makes this act only take effect if the
court rule changes in Sections 8 and 10 are adopted.
Section 15 provides a June 1, 2020 effective date.
1:56:35 PM
SENATOR MICCICHE said the question of whether or not this bill
would save money should be settled. He calculated program costs
of $9.1 million and subtracting $425,000 results in program
costs of $8.675 million. Since the state currently takes in $6.4
million, there is actually a savings since $425,000 less would
be needed from the general fund to fill the gap.
SENATOR WIELECHOWSKI agreed and acknowledged that there may be a
separate account where that money is kept. He offered to follow
up with more specifics on where that money comes from.
1:58:03 PM
CHAIR COGHILL pointed out that adding 232 cases to the superior
court means that the time is shifted. The question is what value
is received and if there would there be fewer appeals. He said
what would be left is the precedent the Commission sets going
forward would be lost.
SENATOR WIELECHOWSKI said his fundamental argument is that the
10 to 20 cases appealed to the Commission were previously
handled by the superior court. These cases could be handled by
superior court in a reasonable amount of time and result in a
savings of $425,900.
2:00:13 PM
CHAIR COGHILL opened public testimony on SB 76.
2:00:22 PM
MARTHA TANSIK, Attorney, Barlow Anderson, LLC, Anchorage,
Alaska, said most of her practice is workers' compensation
defense. She has been on the receiving end of recent precedent
changing decisions so she is not under any illusion that this is
a perfect system. Still, she said she was speaking in opposition
to SB 76. From her perspective, the concerns about returning
first layer appeals to the superior court relate to subject
matter complexity, lack of superior court resources, and failure
to meet the intent of the Workers' Compensation Act. She said
workers' compensation is a nuanced and complex area of law. The
statutes have been modified extensively by case law over time,
especially since 2005 when the legislature created the current
system. She emphasized the importance of having individuals
familiar with the Workers' Compensation Act and cases
adjudicating the appeal. That familiarity ultimately reduces the
likelihood of appeal to the Alaska Supreme Court and increases
the likelihood of a consistent body of law. Without that
precedential value, there is little incentive to accept the
ruling of the superior court. It is easier to anticipate that a
change to the superior court, however excellent the practicing
judges, would likely result in increased litigation costs and an
overall lack of predictability for practitioners, employers, and
employees.
MS. TANSIK said that there is no indication that any other court
or judge will be correct any more than the Commission. She
offered her view that the increased number of appeals has to do
with a major shift in the law that has occurred since 2005. She
said it is like comparing apples to oranges when considering the
pre and post 2005 appeals when navigating the new set of laws
and causation. She also pointed out that the length of time that
cases are open is often caused by pro se litigants who want
extremely long extensions, not the inability of the Commission
to move cases forward. For example, in one case an employee has
asked for nearly a year-long extension, which skews the
statistics.
2:02:58 PM
MS. TANSIK turned to the second issue, which relates to a lack
of resources at the superior court. The court is stretched thin,
even more so than in 2017. Just last week, she set two trials at
the superior court and both judges were quite concerned about
being called to cover criminal and children in need of aid
(CINA) cases, which both have constitutional timeline mandates.
One judge was scheduling four months out and the other had his
calendar from January through March 2021 completely booked for
civil cases. Those delays are not beneficial for injured workers
seeking relief, nor for employers and insurers seeking
resolution in a timely fashion. She related her understanding
that it takes significantly longer for the superior court judges
to issue their decisions, which she believes is six months,
while the appeals commission has 30 days. In terms of
efficiency, the Commission is much faster, she said. The only
likely outcome is delay. She expressed concern that workers'
compensation cases would be pushed down so superior court judges
could address criminal trials. She opined that it is a bit of a
fallacy to think that these cases could be incorporated into the
court system without the need for additional funds since the
system is short staffed and would likely need additional judges
to accommodate SB 76.
She said the third point is that nothing in the repeal truly
supports the intent of the Workers' Compensation Act, which is
quick, efficient, fair and predictable delivery of benefits at a
reasonable cost. She related her understanding that one
compromise put forth would be to have a subject matter expert
designated to the Office of Administrative Hearings, one who
could have precedential value. That person might be able to hear
issues in a timely fashion and provide decisions that would
allow for the parties to establish predictable delivery
benefits. She related her understanding that it would cost a
quarter to a third of the budget, which might free up the
remainder of the funds for the other purposes mentioned today.
She urged members to leave the Commission in place, but if that
could not occur, to consider the Office of Administrative
Hearings solution to more closely track the legislative intent.
2:05:36 PM
ANDY HEMENWAY, representing self, Juneau, Alaska, stated that he
previously served as an administrative law judge with the Office
of Administrative Hearings. During 2015 and 2016, he served as
chair of the Workers' Compensation Appeals Commission. He said
there has been reference to several policy matters, including
the importance of having precedent-setting decisions from the
Commission as compared to decisions from the superior court,
which are not binding except to the parties of the case. He said
that is one important value that would be lost if the cases go
to the superior court. He noted that members have heard
testimony in prior committees about the value of the Commission
for self-represented or pro se litigants. The commission staff
provides excellent help to guide them through the process. With
due respect, he said that he did not believe the court system
could provide the same level of service to self-represented
litigants.
MR. HEMENWAY responded to the timeliness issue. He recalled Mr.
Wooliver's testimony indicated that the court takes 8 to 18
months to issue decisions, but he did not specifically track
timeframes for workers' compensation cases. The superior court
has other cases to prioritize. There may be some need to keep
the Commission in terms of timeliness, but it would be hard to
quantify.
2:07:59 PM
MR. HEMENWAY turned to the cost of the Commission. He suggested
using the actual Commission cost, which is $323,000. He
characterized it as a rather small amount in actual dollars, but
also as a percentage of the funding for the Workers'
Compensation and Safety program budget. Of the $9.1 million
total cost of the system, just $323,000 is being expended on the
Commission.
He suggested that the sponsor's report of an 80 percent appeal
rate of Commission decisions to the Alaska Supreme Court is a
misconception because it includes unpublished orders related to
attorney fees, case dismissals, and extensions of time.
Actually, in the last five years appeals to the Alaska Supreme
Court of published or final Commission decisions has been less
than 50 percent. Of those cases, 57 percent were affirmed by the
Alaska Supreme Court and 28 percent were reversed.
Further, in terms of cost, the two appeals courts were spending
$7 million as compared to $323,000 that the Commission spends. A
case by case comparison shows there is not much difference in
cost. The 666 cases in the Court of Appeals and Alaska Supreme
Court cost about $10,000 per case, whereas the cost per case for
the Commission is about $13,000 per case. That's not a big
difference. He said the published decisions per year per judge
is 14 for the Court of Appeals and 18 published decisions for
the Alaska Supreme Court, which is comparable to the
Commission's published decisions.
2:12:34 PM
ERIC CROFT, Attorney, Croft Law Firm, Anchorage, Alaska, said he
submitted written testimony, but would make a few comments in
support of SB 76. He offered his view that the Commission has
not provided legal clarity. He cited two cases in which the
Alaska Supreme Court could not figure out what the Commission
meant, but more importantly the Commission in two different
opinions used two completely different standards to grant or
reject a stay, effectively contradicting itself.
MR. CROFT said it is not necessary to find fault with the
Commission to find that the caseload does not justify the level
of expenditure. As Mr. Hemenway testified, the Commission issues
14 decisions per year, which is low compared to criminal Court
of Appeals. He said the caseload doesn't justify the
expenditure.
2:15:21 PM
CHAIR COGHILL encouraged members to send in written testimony to
senate.judiciary@akleg.gov.
2:15:34 PM
MICHAEL BUDZINSKI, Attorney, Meschke Paddock Budzinski,
Anchorage, Alaska, spoke in opposition to SB 76. He said he has
practiced workers' compensation law, representing employers, for
36 years. He agreed with Ms. Tansik's reasoning to maintain the
Commission.
MR. BUDZINSKI said the Commission has the most experience, with
its members having a combined total of 60-80 years of experience
in workers' compensation matters. He compared this to current
superior court judges, which he reviewed. He noted that none
have practiced in workers' compensation, so they have no
practical experience to bring to the appeals. Even if the Alaska
Supreme Court disagrees with the outcome, the Commission offers
very rational, well-reasoned decisions. He offered his view that
the Alaska Supreme Court has its own policy agenda, but it is
valuable to see the rationale that the Commission provides. He
offered his view that no superior court judge would be qualified
to do so. He said that the superior court has large gaps in its
knowledge of the workers' compensation system. In his own
experience, he has found in arguing cases before the superior
court, attorneys must literally explain the workers'
compensation system before getting to the merits of a case. The
Commission is familiar with workers' compensation terms and is
efficient. It is valuable for the Commission to have a three-
member panel to discuss matters and arrive at the best decision.
The superior court judges cannot get that feedback since no one
has that experience. He said he cannot speak to the fiscal
concerns, but in terms of the quality of the system, it does not
make sense to substitute a panel with substantial experience to
one that has none.
2:19:27 PM
SENATOR KIEHL asked if he said that the Alaska Supreme Court has
an agenda regardless of the hearing on workers' compensation
issues and, if so, what that might be.
MR. BUDZINSKI said that in his experience the Alaska Supreme
Court inserts a policy aspect to decisions. Some cases present
matters of policy that must be decided when interpreting the
law. The Commission looks more closely to the law to apply the
rules that it perceives. The Alaska Supreme Court is much more
open to base a decision, in part, on policy considerations
compared to the Commission. He said that could be the reason for
reversals.
2:21:09 PM
LAURA BONNER, representing self, Anchorage, Alaska, related that
her husband was injured on the job in the 1980s and she supports
SB 76. She cited a document on BASIS that indicated that the
Commission was found to be "an ineffective division" and
according to the fiscal note it would save the state money to do
away with the Commission.
2:22:54 PM
CHAIR COGHILL closed public testimony on SB 76.
2:23:13 PM
SENATOR WIELECHOWSKI disagreed with the statement that the
Commission costs $323,000 rather than $425,900, but it would
still be worth saving the funds. The Department of Labor &
Workforce Development fiscal note dated January 24, 2020
indicates it would save $425,900. He also argued that workers'
compensation cases are no more complex than family, criminal, or
trust law.
He reviewed the document in members' packets from Legislative
Research Services that reviewed Commission cases that were
appealed to the Alaska Supreme Court: in 2011, all 13 published
decisions were appealed; in 2012, 15 of sixteen decisions were
appealed; in 2013, 11 of 17 cases were appealed; and in 2014, 12
of 15 decisions were appealed. He reported that in the last
seven to nine years, 71 percent of the cases were appealed to
the Alaska Supreme Court. He argued that it does not provide
stability, predictability, timeliness or save in litigation
costs when 71 percent of its cases are appealed.
SENATOR WIELECHOWSKI said the superior court handles pro se
cases all the time. He suggested that most cases that go before
the Commission are ones represented by counsel. He pointed out
that litigation is expensive. He countered the comment on
unpublished decisions by stating that every judge handles them.
According to the Legislative Research Agency, between 2005 to
2108, 115 of 253 published decisions were appealed to the Alaska
Supreme Court. Further, even 43 percent would not be a good
reversal rate, he said. The Commission functions as an appellate
court and the members are good people, but two of three
commissioners have zero legal training whereas 100 percent of
superior court judges have legal training, he said.
SENATOR WIELECHOWSKI mentioned that this commission
overwhelmingly rules in favor of insurance companies at the
expense of injured workers, which is documented in Mr. Croft's
letter.
2:30:13 PM
CHAIR COGHILL stated that he would hold SB 76 in committee.
SB 8-ACCESS TO MARIJUANA CONVICTION RECORDS
2:30:33 PM
CHAIR COGHILL announced that the next order of business would be
SENATE BILL NO. 8, "An Act restricting the release of certain
records of convictions; amending Rule 37.6, Alaska Rules of
Administration; and providing for an effective date."
CHAIR COGHILL suggested that testifiers could submit their
testimony to senate.judiciary@akleg.gov. He solicited a motion.
2:32:27 PM
SENATOR MICCICHE moved to adopt the proposed committee
substitute (CS) for SB 8, work order 31-LS0208\S, as the working
document.
CHAIR COGHILL objected for discussion purposes.
CHAIR COGHILL asked the sponsor to review the explanation of
changes.
2:33:10 PM
SENATOR TOM BEGICH, Alaska State Legislature, Juneau, Alaska,
stated that the changes in version S were ones that the
committee agreed to.
2:33:45 PM
ALEX JORGENSEN, Staff, Senator Tom Begich, Alaska State
Legislature, Juneau, Alaska, reviewed the changes between
Version A and Version S:
Explanation of Changes for Senate Bill 8 (31-LS0208)
Version A to Version S:
• Page 1, lines 1-2: Removes reference to Rule 37.6
Alaska Rules of Administration in the title. This is
to conform with the removal of section 4 in Version A,
the Indirect Court Rule change.
• Page 1, lines 1-2: Removes reference to Rule 37.6
Alaska Rules of Administration in the title. This is
to conform with the removal of section 4 in Version A,
the Indirect Court Rule change.
• Page 1, line 9: Before "criminal history background":
delete the word "a" and insert "certain types of"
2:34:32 PM
At-ease.
2:35:05 PM
CHAIR COGHILL reconvened the meeting.
MR. JORGENSEN continued to review the changes in version S.
• Page 1, lines 9-10: Delete "make it more likely" and
insert "increase the likelihood"
• Page 1, line 10: Delete "only" and insert "those"
• Page 1, line 11: Amends AS 12.62.160(b)(8) (Release
and use of criminal justice information). The new
Section 2 of the bill is conforming language to
include changes made to new background check policy
changed by SB 8.
• Page 1, line 12: Delete "Notwithstanding (b)(8) of
this section, an agency may not release records of a
criminal case" and insert "An agency may not release
criminal history record information"
• Page 2, line 3: Insert new subclause that reads "(2)
was 21 years of age or older at the time of commission
of the offence;" and renumber subclauses accordingly
• Page 2, line 3: Add the word "criminal" before the
word "charges"
• Page 2, lines 6-12: Delete all material and insert:
Sec. 22.35.040. Records concerning criminal cases for
marijuana possession. The Alaska Court System may not
publish on a publicly available Internet website the
court records of a criminal case in which the
defendant
(1) was convicted under AS 11.71.060, or a municipal
ordinance with similar elements, for possession of
less than one ounce of a schedule VIA controlled
substance;
(2) was 21 years of age or older at the time of
commission of the offense; and
(3) was not convicted of any other criminal charges in
that case.
• Page 2, line 13-23: Delete all material
• Page 2, line 24: Change effective date to January 1, 2021
2:38:03 PM
CHAIR COGHILL removed his objection. There being no further
objection, version S was adopted.
2:38:10 PM
SENATOR MICCICHE questioned whether the page number references
were correct.
SENATOR BEGICH explained that the page numbers refer to version
A. For example, the last change shown on page 2, line 24 of
version A can be found on page 3, line 18 of version S.
SENATOR BEGICH explained that SB 8, version S, helps to ensure
that the language in the bill is compatible and consistent with
the language the Department of Public Safety and the court
system use.
2:41:30 PM
CHAIR COGHILL opened public testimony on SB 8.
2:41:46 PM
LACEY WILCOX, President, Alaska Marijuana Industry Association,
Juneau, Alaska, said that the association is supportive of the
language in version S. Under SB 8, Alaskans with prior
convictions for conduct that is legal today will have a better
chance of securing housing, employment and educational
opportunities. The association understands that the bill would
make these offenses confidential and does not expunge the
record. This is a step in the right direction, she said.
2:43:07 PM
SENATOR HUGHES said her concern is that employers may wish to
know who tends to not follow the law. Marijuana was illegal at
the time of the offense, even though it is currently legal. She
asked if employers can obtain that information. She said she
wants people to get housing and work, but this information may
be important to some employers.
2:44:31 PM
SENATOR BEGICH said several things in the bill are designed to
address people applying for jobs, including ones in public
safety. He acknowledged that there are some areas where
employers could gain access to the information. He deferred to
the Department of Public Safety to elaborate on its policy.
2:45:45 PM
CHAIR COGHILL held SB 8 in committee with public testimony open.
SJR 13-CONST. AM: PROHIBIT ABORTION/FUNDING
2:46:01 PM
CHAIR COGHILL announced that the final order of business would
be SENATE JOINT RESOLUTION NO. 13, Proposing an amendment to the
Constitution of the State of Alaska relating to abortion.
CHAIR COGHILL announced that public testimony was opened at the
last hearing.
2:46:48 PM
KAREN LEWIS, Pro Life Alaska, Wasilla, Alaska, spoke in support
of SJR 13. She stated that Thomas Jefferson said that the care
of human life and happiness and not their destruction is the
first and only legitimate object of good government. She quoted
the Declaration of Independence and the Bible to illustrate her
point. She related her daughter's decision to continue with an
unwed pregnancy and posited that young women can have children
and attend school at the same time.
2:49:32 PM
CATHY LAW, representing self, Anchorage, Alaska, spoke in
support of SJR 13, which would add language to the Constitution
of the State of Alaska that says, "To protect human life,
nothing in this constitution may be construed to secure or
protect a right to an abortion or require the State to fund an
abortion." The resolution would ensure that there is no right to
an abortion in the Constitution of the State of Alaska. It would
allow Alaskans to establish laws on abortion that reflect
Alaskans' values. She offered her view that the Alaska Supreme
Court decisions invented the right. It was illegal in Alaska
from statehood until the Court decided otherwise.
2:51:06 PM
SERENA O'HARA-JOLLEY, representing self, Fairbanks, Alaska,
spoke in opposition to SJR 13. She said that Alaskans value
their independence and individual choices. An overwhelming
number of Alaskans support the right to access safe and legal
abortions. She found amending the Constitution of the State of
Alaska to change the right to privacy unacceptable. Legislators
took an oath to uphold the Constitution of the State of Alaska,
but not to amend it to suit their moral values., she said.
2:53:12 PM
MARCI HAWKINS, representing self, Sutton, Alaska, said she
opposes SJR 13. She expressed concern that this would lead to
criminalizing abortion. She supports women being able to make
their own medical decisions.
2:55:05 PM
WENDY PERKINS, representing self, Anchorage, Alaska, spoke in
support of SJR 13. She argued against using a privacy argument
regarding abortion. She does not want one branch of government
to be too strong. She said that it is dangerous for the judicial
branch to interpret the right to privacy to extend to abortion.
2:57:00 PM
CHERYL KAJDAN, representing self, Palmer, Alaska, spoke in
support of SJR 13. She said that as a nation, the U.S. fights
for life, liberty, and the pursuit of happiness. The changes in
peoples' moral stances have degraded general civil behavior. Dr.
Mildred Jefferson, cofounder of the national Right to Life,
warned people that abortions would be used to target the African
American community. She also warned that abortion access for
poor women would be used to justify keeping abortion legal. She
gave statistics to support her view. She asked members to allow
Alaskans to have a voice on this issue, not the Alaska Supreme
Court.
CHAIR COGHILL held SJR 13 in committee with public testimony
open.
3:00:57 PM
There being no further business to come before the committee,
Chair Coghill adjourned the Senate Judiciary Standing Committee
meeting at 3:00 p.m.
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