Legislature(2005 - 2006)BUTROVICH 205

04/14/2005 08:00 AM JUDICIARY


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08:54:04 AM Start
08:54:21 AM SB140
08:59:55 AM Confirmation Hearing: Attorney General: Mr. David Marquez
09:00:55 AM SB135
09:45:03 AM SB132
10:44:17 AM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Time Change --
+= SB 135 ASSAULT & CUSTODIAL INTERFERENCE TELECONFERENCED
Moved CSSB 135(JUD) Out of Committee
+= SB 132 HUMAN RIGHTS COMMISSION TELECONFERENCED
Moved SB 132 Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
= SB 140 BAN INTERNET SPYWARE
Moved CSSB 140(JUD) Out of Committee
Confirmation Hearing: Attorney General,
David W. Marquez
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                         April 14, 2005                                                                                         
                           8:54 a.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator Ralph Seekins, Chair                                                                                                    
Senator Charlie Huggins, Vice Chair                                                                                             
Senator Gene Therriault                                                                                                         
Senator Hollis French                                                                                                           
Senator Gretchen Guess                                                                                                          
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
All members present                                                                                                             
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
SENATE BILL NO. 140                                                                                                             
"An Act relating to spyware and unsolicited Internet                                                                            
advertising."                                                                                                                   
                                                                                                                                
     MOVED CSSB 140(JUD) OUT OF COMMITTEE                                                                                       
                                                                                                                                
CONFIRMATION HEARING:                                                                                                           
Attorney General Confirmation Hearing: Mr. David Marquez                                                                        
                                                                                                                                
     CONFIRMATION ADVANCED                                                                                                      
                                                                                                                                
SENATE BILL NO. 135                                                                                                             
"An Act relating to the crimes of assault and custodial                                                                         
interference; and providing for an effective date."                                                                             
                                                                                                                                
     MOVED CSSB 135(JUD) OUT OF COMMITTEE                                                                                       
                                                                                                                                
SENATE BILL NO. 132                                                                                                             
"An  Act  relating  to  complaints  filed  with,  investigations,                                                               
hearings, and orders  of, and the interest rate on  awards of the                                                               
State Commission for Human  Rights; making conforming amendments;                                                               
and providing for an effective date."                                                                                           
                                                                                                                                
     MOVED SB 132 OUT OF COMMITTEE                                                                                              
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: SB 140                                                                                                                  
SHORT TITLE: BAN INTERNET SPYWARE                                                                                               
SPONSOR(s): SENATOR(s) THERRIAULT                                                                                               
                                                                                                                                
03/10/05       (S)       READ THE FIRST TIME - REFERRALS                                                                        
03/10/05       (S)       L&C, JUD                                                                                               
03/22/05       (S)       L&C AT 1:30 PM BELTZ 211                                                                               
03/22/05       (S)       Heard & Held                                                                                           
03/22/05       (S)       MINUTE(L&C)                                                                                            
03/24/05       (S)       L&C AT 2:00 PM BELTZ 211                                                                               
03/24/05       (S)       Moved SB 140 Out of Committee                                                                          
03/24/05       (S)       MINUTE(L&C)                                                                                            
03/29/05       (S)       L&C RPT 3DP                                                                                            
03/29/05       (S)       DP: BUNDE, DAVIS, STEVENS B                                                                            
04/07/05       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
04/07/05       (S)       Scheduled But Not Heard                                                                                
04/08/05       (H)       JUD AT 8:00 AM CAPITOL 120                                                                             
04/08/05       (S)       Scheduled But Not Heard                                                                                
04/13/05       (H)       JUD AT 8:30 AM BUTROVICH 205                                                                           
04/13/05       (S)       Heard & Held                                                                                           
04/13/05       (S)       MINUTE(JUD)                                                                                            
                                                                                                                                
CONFIRMATION HEARING:                                                                                                         
Attorney General Confirmation Hearing: Mr. David Marquez - See                                                                  
Senate Judiciary minutes 04/13/05.                                                                                              
                                                                                                                                
BILL: SB 135                                                                                                                  
SHORT TITLE: ASSAULT & CUSTODIAL INTERFERENCE                                                                                   
SPONSOR(s): SENATOR(s) DYSON                                                                                                    
                                                                                                                                
03/08/05       (S)       READ THE FIRST TIME - REFERRALS                                                                        
03/08/05       (S)       JUD, FIN                                                                                               
04/06/05       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
04/06/05       (S)       Scheduled But Not Heard                                                                                
04/14/05       (S)       JUD AT 8:00 AM BUTROVICH 205                                                                           
                                                                                                                                
BILL: SB 132                                                                                                                  
SHORT TITLE: HUMAN RIGHTS COMMISSION                                                                                            
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR                                                                                    
                                                                                                                                
03/04/05       (S)       READ THE FIRST TIME - REFERRALS                                                                        
03/04/05       (S)       STA, JUD                                                                                               
03/17/05       (S)       STA AT 3:30 PM BUTROVICH 205                                                                           
03/17/05       (S)       Heard & Held                                                                                           
03/17/05       (S)       MINUTE(STA)                                                                                            
03/29/05       (S)       STA AT 3:30 PM BELTZ 211                                                                               
03/29/05       (S)       Moved SB 132 Out of Committee                                                                          
03/29/05       (S)       MINUTE(STA)                                                                                            
03/30/05       (S)       STA RPT 3NR 1AM                                                                                        
03/30/05       (S)       NR: THERRIAULT, WAGONER, HUGGINS                                                                       
03/30/05       (S)       AM: DAVIS                                                                                              
04/07/05       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
04/07/05       (S)       Scheduled But Not Heard                                                                                
04/08/05       (H)       JUD AT 8:00 AM CAPITOL 120                                                                             
04/08/05       (S)       Scheduled But Not Heard                                                                                
04/14/05       (S)       JUD AT 8:00 AM BUTROVICH 205                                                                           
                                                                                                                                
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
Mr. Dean Guaneli, Chief Assistant Attorney General                                                                              
Criminal Division                                                                                                               
Department of Law                                                                                                               
PO Box 110300                                                                                                                   
Juneau, AK  99811-0300                                                                                                          
POSITION STATEMENT:  Commented on SB 135                                                                                      
                                                                                                                                
Mr. Scott Nordstrand, Assistant Attorney General                                                                                
Department of Law                                                                                                               
PO Box 110300                                                                                                                   
Juneau, AK  99811-0300                                                                                                          
POSITION STATEMENT:  Commented on SB 132                                                                                      
                                                                                                                                
Ms. Paula Haley, Executive Director                                                                                             
Human Rights Commission                                                                                                         
800 A St. STE 204                                                                                                               
Anchorage, AK 99501-3669                                                                                                        
POSITION STATEMENT: Commented on SB 132                                                                                       
                                                                                                                                
Ms. Grace Merkes, Commissioner                                                                                                  
Human Rights Commission                                                                                                         
800 A St. STE 204                                                                                                               
Anchorage, AK 99501-3669                                                                                                        
POSITION STATEMENT:  Commented on SB 132                                                                                      
                                                                                                                                
Mr. David Stancliff                                                                                                             
Staff to Senator Therriault                                                                                                     
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT:  Commented on SB 140.                                                                                     
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
CHAIR RALPH SEEKINS called the Senate Judiciary Standing                                                                      
Committee meeting to order at 8:54:04 AM. Present were Senators                                                               
Hollis French, Charlie Huggins,  Gene Therriault, Gretchen Guess,                                                               
and Chair Ralph Seekins.                                                                                                        
                                                                                                                                
                  SB 140-BAN INTERNET SPYWARE                                                                               
8:54:21 AM                                                                                                                    
CHAIR RALPH SEEKINS announced SB 140 to be up for consideration.                                                                
                                                                                                                                
SENATOR GENE  THERRIAULT moved to  use Version \F as  the working                                                               
document. Hearing no objections, the motion carried.                                                                            
                                                                                                                                
8:55:34 AM                                                                                                                    
SENATOR  HOLLIS FRENCH  asked the  remedies  and consequences  of                                                               
violating SB 140.                                                                                                               
                                                                                                                                
SENATOR THERRIAULT deferred the question to Mr. David Stancliff.                                                                
                                                                                                                                
8:56:03 AM                                                                                                                    
MR.  DAVID  STANCLIFF,  staff  to  Senator  Therriault,  provided                                                               
committee members the  section of statute that  would apply under                                                               
the trade and commerce provisions of Alaska law.                                                                                
                                                                                                                                
8:58:16 AM                                                                                                                    
SENATOR  THERRIAULT  moved  CSSB  140(JUD)  from  committee  with                                                               
individual  recommendations and  attached  fiscal note(s).  There                                                               
being no objection, the motion carried.                                                                                         
                                                                                                                                
   ^Confirmation Hearing: Attorney General: Mr. David Marquez                                                               
                                                                                                                                
8:59:55 AM                                                                                                                    
                                                                                                                                
CHAIR RALPH  SEEKINS announced  that the  next order  of business                                                               
was  the report  on the  recommendation to  appoint Mr.  David W.                                                               
Marquez  as Attorney  General of  Alaska. He  asked if  there was                                                               
discussion and recognized  Senator Therriault. [Hearing continued                                                               
from 4/13/05 joint Senate and  House Judiciary Standing Committee                                                               
meeting]                                                                                                                        
                                                                                                                                
SENATOR  GENE THERRIAULT  motioned to  advance the  nomination of                                                               
David  W.  Marquez  as  appointee to  the  position  of  Attorney                                                               
General for the State of Alaska.                                                                                                
                                                                                                                                
CHAIR SEEKINS  stated that forwarding  the name does  not reflect                                                               
the intent by  any members to vote for or  against the individual                                                               
during any further session.                                                                                                     
                                                                                                                                
Hearing  no  objection, Chair  Seekins  announced  that the  name                                                               
would be forwarded to the joint legislative body.                                                                               
                                                                                                                                
            SB 135-ASSAULT & CUSTODIAL INTERFERENCE                                                                         
                                                                                                                                
9:00:55 AM                                                                                                                    
MR.  JASON HOOLEY,  staff  to Senator  Dyson  introduced SB  135,                                                               
which  focuses  on assault  and  custodial  interference. SB  135                                                               
amends  AS 11.41.220(C)(i)  to read,  "would  cause a  reasonable                                                               
caregiver  to   seek  medical  attention   from  a   health  care                                                               
professional in  the form of  diagnosis, treatment, or  care." SB                                                               
135  also  limits  the defense  of  necessity  for  non-custodial                                                               
parents who kidnap  their children. The limit would be  set at 24                                                               
hours or the time it takes to contact the authorities.                                                                          
                                                                                                                                
9:04:13 AM                                                                                                                    
MR. DEAN  GUANELI, chief  assistant attorney  general, Department                                                               
of Law (DOL),  said in many parent/child  relationships there are                                                               
custodial disputes where  the court has to  intercede. One parent                                                               
is often unhappy with the result.                                                                                               
                                                                                                                                
9:07:13 AM                                                                                                                    
MR. GUANELI stated what SB  135 does is mandate the non-custodial                                                               
parent  to report  suspected harm  to the  proper authorities  as                                                               
opposed to forcibly taking the child from the custodial parent.                                                                 
                                                                                                                                
9:10:00 AM                                                                                                                    
SENATOR GRETCHEN GUESS asked the  consequences of a non-custodial                                                               
parent who does not comply with Section 2, subsection (c).                                                                      
                                                                                                                                
MR. GUANELI  responded it cuts  off the defense of  necessity for                                                               
the parent who takes their child  out of state. It does not allow                                                               
the argument  that they kidnapped  the child  for his or  her own                                                               
safety.                                                                                                                         
                                                                                                                                
SENATOR GUESS asked how people would  be alerted to the change in                                                               
the law.                                                                                                                        
                                                                                                                                
MR. GUANELI answered the DOL  presumes that people understand the                                                               
law.                                                                                                                            
                                                                                                                                
SENATOR HOLLIS  FRENCH asked Mr.  Guaneli the  consequences where                                                               
there is no custodial court order.                                                                                              
                                                                                                                                
9:13:31 AM                                                                                                                    
MR. GUANELI responded  in the case of no custody  order where the                                                               
parent takes  the child out  of state, the other  parent normally                                                               
obtains a  temporary custody order.  Because the  custodial order                                                               
is  a continuing  offense, the  parent could  be charged  at that                                                               
point.                                                                                                                          
                                                                                                                                
9:14:29 AM                                                                                                                    
SENATOR FRENCH asked the notice  requirements to an absent parent                                                               
with respect to obtaining a temporary custody order.                                                                            
                                                                                                                                
MR. GUANELI said the orders  could be obtained without the parent                                                               
being present.                                                                                                                  
                                                                                                                                
SENATOR  FRENCH  asked  whether they  were  similar  to  domestic                                                               
violence restraining orders.                                                                                                    
                                                                                                                                
MR. GUANELI advised the parent would  not be charged with a crime                                                               
unless they  had been  notified. The  temporary custody  order is                                                               
valid in  terms of getting  the child  back but the  parent could                                                               
not be  charged with a  crime unless  they ignored a  notice from                                                               
the court.                                                                                                                      
                                                                                                                                
9:16:30 AM                                                                                                                    
SENATOR GUESS asked  whether SB 135 would extend  to other family                                                               
members.                                                                                                                        
                                                                                                                                
MR.  GUANELI   said  the  custodial  interference   statutes  are                                                               
designed to  treat what  would otherwise be  a kidnapping.  It is                                                               
treated as a less serious offense if done by a relative.                                                                        
                                                                                                                                
9:18:13 AM                                                                                                                    
SENATOR  FRENCH  asked  Mr.  Guaneli to  describe  the  court  of                                                               
appeals decision that brought about Section 1 of SB 135.                                                                        
                                                                                                                                
MR. GUANELI explained a series  of assaults against children many                                                               
years  ago  spurned  the  Legislature  to  raise  the  charge  of                                                               
assaults against children  under 10 to felony assault.  SB 135 is                                                               
designed to protect  children. There is a problem  in Alaska with                                                               
assaults  to children  such  as shaken  baby  syndrome. A  person                                                               
cannot be  charged under AS 11.41.220  for shaking a baby  if the                                                               
medical diagnosis did  not require medical treatment.  He gave an                                                               
example of a recent case.                                                                                                       
                                                                                                                                
9:21:57 AM                                                                                                                    
MR. GUANELI  continued, AS 11.41.220 does  not adequately reflect                                                               
the  Legislature's   intent.  Broader  terms  are   necessary  to                                                               
establish the felony-level offense.                                                                                             
                                                                                                                                
9:22:46 AM                                                                                                                    
SENATOR FRENCH  asked Mr. Guaneli  whether someone would  have to                                                               
seek medical care for the event to qualify as a felony.                                                                         
                                                                                                                                
MR. GUANELI said  no. Injuries may arise in  a circumstance where                                                               
the  parent  doesn't  seek medical  attention  and  someone  else                                                               
discovers the  injuries at a  later time. There would  be medical                                                               
attention and expert testimony of  the injuries sustained at some                                                               
point.                                                                                                                          
                                                                                                                                
CHAIR  RALPH  SEEKINS clarified  SB  135  would not  require  the                                                               
caregiver to immediately seek medical attention.                                                                                
                                                                                                                                
MR. GUANELI answered correct.                                                                                                   
                                                                                                                                
SENATOR FRENCH  expressed concern  that SB 135  didn't completely                                                               
cover all the circumstances that could arise with child abuse.                                                                  
                                                                                                                                
9:26:04 AM                                                                                                                    
MR. GUANELI  said a  more culpable offender  who doesn't  allow a                                                               
mother to  take her child  for treatment should still  fall under                                                               
AS 11.41.220.                                                                                                                   
                                                                                                                                
9:27:22 AM                                                                                                                    
SENATOR  FRENCH asked  the reason  the individual  who coerces  a                                                               
caregiver  against   taking  the  child  for   medical  treatment                                                               
shouldn't be charged under Section 1(C)(ii)                                                                                     
                                                                                                                                
MR. GUANELI responded it might have been just a single assault.                                                                 
                                                                                                                                
9:29:25 AM                                                                                                                    
SENATOR FRENCH asked  the reason for adding the  words, "or care"                                                               
on Page 1, line 15.                                                                                                             
                                                                                                                                
MR.  GUANELI answered  the language  was intentionally  broad for                                                               
situations  where a  doctor, hospital  or health  aide may  put a                                                               
child  under observation  for 12  hours. There  may be  no formal                                                               
diagnostic testing  but care  would be  provided. Given  the wide                                                               
variety of  healthcare in  Alaska, it  seems appropriate  to have                                                               
some latitude.                                                                                                                  
                                                                                                                                
9:31:31 AM                                                                                                                    
SENATOR  FRENCH expressed  "care" could  be misconstrued  to mean                                                               
administering  ice or  taking a  temperature. SB  135 could  lead                                                               
into a felony charge for very minor injuries.                                                                                   
                                                                                                                                
SENATOR  GENE THERRIAULT  asked whether  24 hours  of observation                                                               
would be defined as diagnosis.                                                                                                  
                                                                                                                                
MR. GUANELI admitted  that was possible. He said  if the observed                                                               
injuries are such  that a reasonable person would  feel the child                                                               
should receive  medical attention  that would  be enough  for the                                                               
DOL to start an investigation.                                                                                                  
                                                                                                                                
9:36:26 AM                                                                                                                    
SENATOR  THERRIAULT sided  with Senator  French's concern  of the                                                               
word "care."                                                                                                                    
                                                                                                                                
9:38:48 AM                                                                                                                    
SENATOR  FRENCH  moved  Amendment  1.  Page  1,  line  15,  after                                                               
"diagnosis" add the word "or."  Hearing no objections, the motion                                                               
carried.                                                                                                                        
                                                                                                                                
9:40:16 AM                                                                                                                    
SENATOR GUESS moved CSSB 135(JUD)  from committee with individual                                                               
recommendations  and  attached  fiscal note(s).  There  being  no                                                               
objection, the motion carried.                                                                                                  
                                                                                                                                
CHAIR SEEKINS announced a brief recess at 9:42:17 AM.                                                                         
CHAIR SEEKINS reconvened the meeting at 9:44:52 AM.                                                                           
                                                                                                                                
                 SB 132-HUMAN RIGHTS COMMISSION                                                                             
                                                                                                                                
9:45:03 AM                                                                                                                    
MR. SCOTT NORDSTRAND, deputy attorney  general, Department of Law                                                               
(DOL) presented SB 132. He explained  SB 132 is similar to a bill                                                               
that passed  out of  the Senate  Judiciary Standing  Committee in                                                               
2004. SB 132 would allow  the Human Rights Commission to evaluate                                                               
complaints of unlawful discrimination  and allocate its resources                                                               
to  prosecuting those  complaints  that best  serve  the goal  of                                                               
eliminating   unlawful  discrimination.   SB  132   improves  the                                                               
Commission  procedures   and  enhances  fairness.   It  clarifies                                                               
remedies   the   Commission   may  award   to   remedy   unlawful                                                               
discrimination. Any person who believes  they have been subjected                                                               
to unlawful  discrimination can file  a complaint with  the Human                                                               
Rights   Commission.   If   substantial  evidence   of   unlawful                                                               
discrimination is  found, the case  proceeds to  conciliation. If                                                               
that  is  unsuccessful  the  case  evolves  into  a  more  formal                                                               
adjudication process.                                                                                                           
                                                                                                                                
9:47:28 AM                                                                                                                    
The case would go forward  into a litigation-type process. SB 132                                                               
would put the  process into a central panel.  The hearing officer                                                               
would make  a recommended decision  to the Commission  to resolve                                                               
the case.  SB 132 addresses  a problem created by  the Department                                                               
of Fish  and Game in 1995.  The Alaska Supreme Court  said a case                                                               
has to  be completely  lacking in  merit otherwise  it has  to be                                                               
heard. This created a workload problem for the Commission.                                                                      
                                                                                                                                
9:49:31 AM                                                                                                                    
Most  cases are  subject  to judicial  review  and are  regularly                                                               
overturned by the Superior Court.  SB 132 provides some basis for                                                               
the executive director  to dismiss cases. Page 3  lists the basis                                                               
the  executive   director  can  dismiss.  This   is  putting  the                                                               
Commission in a more similar  position with the Equal Opportunity                                                               
Commission.  They have  the power  to review  the most  egregious                                                               
cases with the resources they have.                                                                                             
                                                                                                                                
9:51:06 AM                                                                                                                    
SB 132 also clarifies some  of the processes. It allows employers                                                               
to  have  a  better  understanding  of  what  is  being  charged.                                                               
Oftentimes  complaints  are  very   ambiguous  and  general.  The                                                               
complaint   does   not   necessarily  identify   all   areas   of                                                               
discrimination.  Currently  there  is no  requirement  the  Human                                                               
Rights  Commission  inform either  party  they  are changing  the                                                               
complaint to  address other issues  that have come up  during the                                                               
investigation.                                                                                                                  
                                                                                                                                
9:52:44 AM                                                                                                                    
SB 132 also  gives the parties the opportunity to  go through the                                                               
conciliation  process with  benefit  of all  the information.  If                                                               
evidence reveals there is greater  discrimination, it may be much                                                               
easier to bring the parties to resolution.                                                                                      
                                                                                                                                
9:53:47 AM                                                                                                                    
At the  point of failed  conciliation a formal accusation  by the                                                               
Commission  must be  drafted against  the charged  party. SB  132                                                               
improves procedures because it allows  agreements during the pre-                                                               
hearing  phase and  it allows  the compromise  of damage  claims.                                                               
There has  been past confusion  regarding whether  the Commission                                                               
could   compromise  claims   at  the   conciliation  stage.   The                                                               
Administrative Procedure Act would  now apply except as otherwise                                                               
provided in statute AS 18.80. It allows summary judgment.                                                                       
                                                                                                                                
9:56:21 AM                                                                                                                    
SB 132 clarifies  the remedies section of the act  and provides a                                                               
list of  remedies available.  It also  includes a  prohibition of                                                               
non-economic damages.  It defines  pay for  the purposes  of back                                                               
pay and front pay and it also limits front pay to one year.                                                                     
                                                                                                                                
9:58:46 AM                                                                                                                    
SB  132  specifically  says  people  have  an  obligation  in  an                                                               
employment  discrimination   case  to  use   reasonably  diligent                                                               
efforts to find  other employment. In terms  of housekeeping, the                                                               
regulatory  statute  of limitations  (180  days)  is put  in  the                                                               
statute.  This makes  it  consistent with  federal  law. It  also                                                               
incorporates the federal fund rate  plus 3 percent as an interest                                                               
rate.                                                                                                                           
                                                                                                                                
10:00:02 AM                                                                                                                   
SENATOR  GENE   THERRIAULT  said  there  was   concern  from  the                                                               
Commission regarding the  verbiage on Page 2  lines 27-31. People                                                               
from  the  Commission  have  expressed  they  did  not  want  the                                                               
discretion.  He asked  Mr. Nordstrand  whether  he has  discussed                                                               
that with them.                                                                                                                 
                                                                                                                                
MR.  NORDSTRAND  responded  they   have  had  discussions.  Their                                                               
concern was it would require the  Commission to review all of the                                                               
cases. SB  132 uses the word  "may" for the specific  reason that                                                               
it allows them  to implement discretion if they  want. However it                                                               
is enough  discretion that they  could pass a  regulation saying,                                                               
"we won't".  He said as a  matter of public policy,  there should                                                               
be some review by the actual  Commission that is charged with the                                                               
responsibility.  There  may be  the  case  where an  investigator                                                               
interviews  people  to  determine whether  there  is  substantial                                                               
evidence of discrimination and that  is reviewed by the executive                                                               
director.                                                                                                                       
                                                                                                                                
10:02:45 AM                                                                                                                   
SENATOR THERRIAULT  stated part of  the concern expressed  by the                                                               
Commission  is  in  their  effort to  focus  their  attention  to                                                               
resources they  are going to have  to review all of  the cases to                                                               
see which ones they need to take up.                                                                                            
                                                                                                                                
MR. NORDSTRAND said it does not  need to be more complicated than                                                               
an executive  investigation. If there  is a close call  case, the                                                               
Human Rights Commission should consider it.                                                                                     
                                                                                                                                
SENATOR HOLLIS  FRENCH asked  how the  Commission gets  notice of                                                               
case dismissals.                                                                                                                
                                                                                                                                
MR. NORDSTRAND replied he does not know.                                                                                        
                                                                                                                                
CHAIR  RALPH SEEKINS  advised two  people from  the Human  Rights                                                               
Commission were online waiting to testify.                                                                                      
                                                                                                                                
10:05:09 AM                                                                                                                   
MS.  GRACE  MERKES,  commissioner, Alaska  State  Commission  for                                                               
Human  Rights,  answered  Senator  French's  question.  She  said                                                               
summaries  of  cases  are  given to  the  Commission  during  the                                                               
regular  quarterly   meetings.  She  is  not   sure  whether  the                                                               
Commission gets a summary of every complaint.                                                                                   
                                                                                                                                
MS. PAULA HALEY, executive director,  Alaska State Commission for                                                               
Human Rights,  answered Senator  French's question  regarding how                                                               
the Commission  informs the commissioner  on the  "no substantial                                                               
evidence  findings" (NSE)  cases. She  said they  do not  provide                                                               
them with  a list. They  are involved in  cases where there  is a                                                               
substantial evidence  finding. Until  a repeal of  the regulation                                                               
regarding review  and reconsideration,  there is no  other format                                                               
to review the NSE findings.                                                                                                     
                                                                                                                                
10:06:50 AM                                                                                                                   
MS. HALEY continued the decision  was the threshold prosecutorial                                                               
decision whether the Commission  goes further to conciliation and                                                               
ultimately  to  the  public  hearing   that  Mr.  Nordstrand  was                                                               
describing.                                                                                                                     
                                                                                                                                
SENATOR FRENCH  asked Ms. Haley  how the Commission would  in its                                                               
discretion review the executive director's order of dismissal.                                                                  
                                                                                                                                
MS.  HALEY  responded  it  was  the  commissioner's  belief  that                                                               
perceived  errors  would  create petitions  from  individuals  or                                                               
their attorneys. The Commission  would need to devise regulations                                                               
to look  at them. Concern has  been expressed that in  time there                                                               
would be limited resources and low return on investment.                                                                        
                                                                                                                                
10:09:03 AM                                                                                                                   
SENATOR GRETCHEN  GUESS asked Mr.  Nordstrand to explain  how the                                                               
limitations on  front and  back pay  work. She  expressed concern                                                               
over whether a person could readily find other employment.                                                                      
                                                                                                                                
MR.  NORDSTRAND said  it  was essentially  a  description of  the                                                               
current legal  standard of a  requirement that anyone  who claims                                                               
damages in  an employment discrimination  case has  an obligation                                                               
to attempt  to mitigate their  damages. This is  continuing along                                                               
the line  of full disclosure for  people who are in  the process.                                                               
People  know  this is  a  requirement.  There  is no  doubt  that                                                               
mitigation is required for those  who seek damages. However, if a                                                               
person  is shown  not  to  have searched  hard  enough for  other                                                               
employment, they may not get all of their front pay.                                                                            
                                                                                                                                
10:11:27 AM                                                                                                                   
SENATOR GUESS  advised Mr. Nordstrand  that Page 5, line  15 says                                                               
"must be reduced" and not "may".                                                                                                
                                                                                                                                
MR.   NORDSTRAND  responded   SB  132   was  talking   about  the                                                               
intangible. The  "must" is  there because  under current  law, it                                                               
must  be  reduced.  If through  reasonably  diligent  efforts,  a                                                               
person could  have earned  some money, then  it must  be reduced.                                                               
That is not optional under the law.                                                                                             
                                                                                                                                
CHAIR  SEEKINS stated  when  no reasonable  effort  is put  forth                                                               
damages could be reduced.                                                                                                       
                                                                                                                                
MR. NORDSTRAND answered correct.                                                                                                
                                                                                                                                
CHAIR  SEEKINS commented  a  person who  has  shown a  reasonably                                                               
diligent effort would not be penalized.                                                                                         
                                                                                                                                
10:14:05 AM                                                                                                                   
SENATOR  GUESS asked  Mr. Nordstrand  the reason  the Legislature                                                               
was not tackling the definition of substantial.                                                                                 
                                                                                                                                
MR.  NORDSTRAND  said it  would  be  a  much more  difficult  and                                                               
dangerous thing  to do in terms  of protecting the rights  of the                                                               
people  suffering from  discrimination. He  said there  are cases                                                               
where  witnesses are  not  credible,  or where  the  case is  not                                                               
enough money to worry about.  Tinkering with substantial evidence                                                               
is like  tinkering with air.  It is  a legal standard  known when                                                               
seen.  The Supreme  Court determined  any factual  disputes could                                                               
not  be settled  without a  hearing. The  ultimate outcome  would                                                               
create an  opportunity for  abuse. There are  cases that  are not                                                               
worth the time  and money. At the end of  the day everybody still                                                               
has a right to take the case to court.                                                                                          
                                                                                                                                
10:17:22 AM                                                                                                                   
CHAIR SEEKINS commented currently a  factual dispute has to go to                                                               
hearing.                                                                                                                        
                                                                                                                                
MR. NORDSTRAND agreed.                                                                                                          
                                                                                                                                
CHAIR  SEEKINS commented  SB  132 was  now  giving the  executive                                                               
director prosecutorial discretion.                                                                                              
                                                                                                                                
MR. NORDSTRAND added SB 132 allows  the use of state resources to                                                               
achieve a very important government  purpose. The question is how                                                               
to best use  the resources. There will be marginal  cases that do                                                               
not merit  pursuing. For those cases  a person can hire  a lawyer                                                               
or file a  complaint on their own. The remedies  are still there;                                                               
the question  is whether to  use government resources  when there                                                               
are more important cases to deal with.                                                                                          
                                                                                                                                
10:18:49 AM                                                                                                                   
CHAIR SEEKINS  commented currently an employer  gets dragged into                                                               
a hearing simply based on allegations.                                                                                          
                                                                                                                                
MR.  NORDSTRAND  agreed.  He   said  the  government  essentially                                                               
provides a  lawyer to a  claimant while requiring an  employer or                                                               
landlord to  respond. There is  no provision for the  employer to                                                               
recoup money spent on unnecessary legal representation.                                                                         
                                                                                                                                
CHAIR  SEEKINS   commented  a   disingenuous  employee   has  the                                                               
advantage.                                                                                                                      
                                                                                                                                
MR.  NORDSTRAND  agreed and  stated  currently  the Human  Rights                                                               
Commission is without power to  stop unfounded claims. The Alaska                                                               
Superior Court  forces a hearing  and it puts  financial pressure                                                               
on the person bearing the burden.                                                                                               
                                                                                                                                
10:21:10 AM                                                                                                                   
MR. NORDSTRAND  added employers often  choose to settle  the case                                                               
because the cost  to settle would be substantially  less than the                                                               
cost to challenge the claim.                                                                                                    
                                                                                                                                
SENATOR  GUESS  said  she  believes  there is  a  better  way  to                                                               
structure the language because SB  132 as currently written gives                                                               
the executive director an incredible amount of power.                                                                           
                                                                                                                                
CHAIR  SEEKINS   commented  district   attorneys  are   given  an                                                               
incredible amount of power.                                                                                                     
                                                                                                                                
SENATOR GUESS  agreed but stated  she has issues with  Section 4,                                                               
paragraphs 1,5,6  & 7, which  are all very  subjective decisions.                                                               
She  expressed concern  about  the breadth  of  the language  and                                                               
offered there should be another way to deal with the situation.                                                                 
                                                                                                                                
10:24:00 AM                                                                                                                   
CHAIR SEEKINS said  he has seen cases where  an investigator does                                                               
not  agree with  the person's  claim and  yet it  goes to  public                                                               
hearing. He pondered the level the  state should go to protect an                                                               
innocent  employer  when  an  investigator  agrees  there  is  no                                                               
substantial  evidence. An  employer  is put  in  the position  of                                                               
being publicly  accused of  discrimination whether  or not  it is                                                               
substantiated. He  expressed support  for SB 132.  He said  he is                                                               
willing to  give discretion  to the  attorney, but  currently the                                                               
system is  weighted so heavily  in favor of the  complainant that                                                               
it creates abuse of the system.                                                                                                 
                                                                                                                                
10:26:00 AM                                                                                                                   
SENATOR GUESS  suggested unfounded claims should  be dismissed up                                                               
front. She said the problem should be fixed on the front end.                                                                   
                                                                                                                                
MR. NORDSTRAND said the elements  in Section 4 subsection (b) are                                                               
an attempt  to fix  the problem  on the front  end. SB  132 would                                                               
represent  the best  use of  resources. Some  employers carry  on                                                               
with  the hearing  on the  basis  of principle,  which costs  the                                                               
state much money.  Section 4, paragraph 1 addresses  a refusal to                                                               
compromise could  be unreasonable.  The Commission on  the behalf                                                               
of  the aggrieved  person brings  the cases.  The discretion  and                                                               
resources are those of the Human Rights Commission.                                                                             
                                                                                                                                
10:29:09 AM                                                                                                                   
CHAIR  SEEKINS  clarified  the  employee  pays  nothing  for  the                                                               
process.                                                                                                                        
                                                                                                                                
MR. NORDSTRAND responded correct.                                                                                               
                                                                                                                                
SENATOR   THERRIAULT   mentioned    that   sometimes   the   most                                                               
unreasonable clients are the pro bono clients.                                                                                  
                                                                                                                                
SENATOR GUESS stated Section 4  paragraph (1) appears to be based                                                               
on either  side. She  asked Mr. Nordstrand  whether that  was the                                                               
case.                                                                                                                           
                                                                                                                                
MR.  NORDSTRAND  said  no.  It   is  about  whether  or  not  the                                                               
complainant's case  would be dismissed.  The employer  always has                                                               
the right to be unreasonable.                                                                                                   
                                                                                                                                
10:31:37 AM                                                                                                                   
SENATOR GUESS moved Amendment 1.                                                                                                
                                                             24G-1                                                              
                                                          11/3/2005                                                             
                                                         (10:23 AM)                                                             
                                                                                                                              
                                                                                                                                
                      A M E N D M E N T 1                                                                                   
                                                                                                                                
                                                                                                                                
Page 2, line 27:                                                                                                                
     Delete "The commission, in its"                                                                                            
                                                                                                                                
                                                                                                                                
Page 2, line 28, through page 3, line 1:                                                                                        
                                                                                                                                
     Delete all material.                                                                                                       
                                                                                                                                
                                                                                                                                
Page 3, line 4:                                                                                                                 
                                                                                                                                
     Delete ", in the executive director's discretion,"                                                                         
                                                                                                                                
                                                                                                                                
Page 3, following line 15:                                                                                                      
                                                                                                                                
     Insert the following new material:                                                                                         
                                                                                                                                
          "(c)  The commission, in its discretion, may review                                                                   
                                                                                                                                
     the  executive director's  order of  dismissal under  (a) or                                                               
                                                                                                                                
     (b) of  this section  and may affirm  the order,  remand the                                                               
                                                                                                                                
     complaint for  further investigation, or, if  the commission                                                               
                                                                                                                                
     concludes that  substantial evidence supports  the complaint                                                               
                                                                                                                                
     of an unlawful discriminatory  practice, refer the complaint                                                               
                                                                                                                                
     for conference, conciliation, and  persuasion as provided in                                                               
                                                                                                                                
     AS 18.80.110, or for hearing."                                                                                             
                                                                                                                                
                                                                                                                                
Page 3, line 16:                                                                                                                
                                                                                                                                
     Delete "(c)"                                                                                                               
                                                                                                                                
     Insert "(d)"                                                                                                               
                                                                                                                                
                                                                                                                                
Page 3, line 22:                                                                                                                
                                                                                                                                
     Delete ", in the executive director's discretion,"                                                                         
                                                                                                                                
                                                                                                                                
CHAIR SEEKINS objected for discussion.                                                                                          
                                                                                                                                
SENATOR GUESS explained the proposed amendment would allow the                                                                  
Commission to review a dismissal under Section 4, subsection (a)                                                                
and/or (b).                                                                                                                     
                                                                                                                                
10:33:35 AM                                                                                                                   
CHAIR SEEKINS asked whether Commission members were paid.                                                                       
                                                                                                                                
MR. NORDSTRAND answered they receive per Diem.                                                                                  
                                                                                                                                
MS. MERKES stated they were unpaid  except for per diem. She said                                                               
if the  Commission were to do  what is being suggested,  it would                                                               
take up a lot of volunteer  time. Per Diem consists of dinner and                                                               
a plane ticket.                                                                                                                 
                                                                                                                                
MS. HALEY commented  a modicum per Diem of $40  a day was revoked                                                               
in the early 1990s.                                                                                                             
                                                                                                                                
SENATOR  GUESS  offered  the committee  might  consider  changing                                                               
Section 4 to a review under subsection (b) and not (a).                                                                         
                                                                                                                                
10:35:36 AM                                                                                                                   
CHAIR SEEKINS stated a claimant has  the option of a civil action                                                               
if the claim was dismissed.                                                                                                     
                                                                                                                                
MR. NORDSTRAND agreed  that any dismissal is free to  go to court                                                               
so long as  they are within the statute of  limitations, which is                                                               
two years.                                                                                                                      
                                                                                                                                
CHAIR SEEKINS asked Mr. Nordstrand  the statute of limitations on                                                               
an action with the Commission.                                                                                                  
                                                                                                                                
MR. NORDSTRAND answered SB 132 places it in statute at 180 days.                                                                
                                                                                                                                
CHAIR SEEKINS commented  that seemed like a  reasonable amount of                                                               
time.                                                                                                                           
                                                                                                                                
MR.  NORDSTRAND   agreed.  He   said  the  claimant   could  seek                                                               
additional remedies in court based on the finding.                                                                              
                                                                                                                                
CHAIR SEEKINS clarified a civil  remedy would require a person to                                                               
pay for their own defense.                                                                                                      
                                                                                                                                
10:37:47 AM                                                                                                                   
MR. NORDSTRAND agreed. He referred  to Amendment 1 and stated the                                                               
practical consequence  is a check  and balance on  the discretion                                                               
to dismiss if the Commission  chooses to allow it. The Commission                                                               
could choose not to review cases based on lack of resources.                                                                    
                                                                                                                                
CHAIR  SEEKINS asked  Ms.  Haley the  procedure  for a  dismissed                                                               
case.                                                                                                                           
                                                                                                                                
MS. HALEY said it would not be burdensome.                                                                                      
                                                                                                                                
10:40:03 AM                                                                                                                   
CHAIR SEEKINS suggested using the  wording "may by the request of                                                               
the majority of the Commission."                                                                                                
                                                                                                                                
MS. HALEY recommended adding time  constraints otherwise it could                                                               
be unfair to the responding party.                                                                                              
                                                                                                                                
MR.  NORDSTRAND  said  the  proposed  wording  would  essentially                                                               
require the Commission to consider all of the cases.                                                                            
                                                                                                                                
Roll call  proved Amendment 1  failed 2-3 with  Senators Huggins,                                                               
Therriault, and Chair Seekins dissenting.                                                                                       
                                                                                                                                
10:42:18 AM                                                                                                                   
SENATOR   GUESS   voiced   disappointment  over   not   including                                                               
subsection (b) in the review.  She asked the committee members to                                                               
consider possible consequences to the language of SB 132.                                                                       
                                                                                                                                
MR. NORDSTRAND  reiterated all decisions are  subject to superior                                                               
court review.                                                                                                                   
                                                                                                                                
SENATOR  CHARLIE  HUGGINS  moved   SB  132  from  committee  with                                                               
individual  recommendations and  attached  fiscal note(s).  There                                                               
being no objection, the motion carried.                                                                                         
                                                                                                                                
10:43:20 AM                                                                                                                   
There being no further business  to come before the committee, he                                                               
adjourned the meeting at 10:44:17 AM.                                                                                         
                                                                                                                                

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