HOUSE JUDICIARY STANDING COMMITTEE January 26, 1994 1:15 p.m. MEMBERS PRESENT Rep. Brian Porter, Chairman Rep. Pete Kott Rep. Gail Phillips Rep. Joe Green Rep. Cliff Davidson Rep. Jim Nordlund MEMBERS ABSENT Rep. Jeannette James, Vice Chair OTHER LEGISLATORS PRESENT Rep. Ed Willis Rep. Bettye Davis Rep. Al Vezey COMMITTEE CALENDAR SCR 4: Relating to the Alaska Supreme Court's interpretation of Alaska Rule of Civil Procedure 82 and requesting that the court modify its interpretation of that rule." MOVED OUT OF COMMITTEE HB 162: "An Act authorizing capital punishment, classifying murder in the first degree as a capital felony, and establishing sentencing procedures for capital felonies; authorizing an advisory vote on instituting capital punishment; and providing for an effective date." HEARD AND HELD WITNESS REGISTER KEVIN SULLIVAN, Legislative Aide Senator Robin Taylor Alaska State Legislature State Capitol, Room 30 Juneau, Alaska 99801-1182 Phone: 465-3873 POSITION STATEMENT: Testified on behalf of Senator Robin Taylor, Prime Sponsor of SCR 4. RUSSELL HEATH, Executive Director Alaska Environmental Lobby P.O. Box 22151 Juneau, Alaska 99802 Phone: 463-3366 POSITION STATEMENT: Testified against SCR 4. TROY REINHART Alaska Forest Association 111 Steadman, #200 Ketchikan, Alaska 99901 Phone: 225-6114 POSITION STATEMENT: Testified in favor of SCR 4. EMILY BARNETT Trustees for Alaska 725 Christensen Dr. Anchorage, Alaska Phone: 276-4244 POSITION STATEMENT: Testified against SCR 4. MARY A. NORDALE, President Alaska Miners Association P.O. Box 21211 Juneau, Alaska 99802 Phone: 586-3340 POSITION STATEMENT: Testified in favor of SCR 4 REP. JERRY SANDERS Alaska State Legislature State Capitol, Room 13 Juneau, Alaska 99811 Phone: 465-4945 POSITION STATEMENT: Prime Sponsor of HB 162 JERRY LUCKHAUPT Legislative Legal Counsel Legislative Affairs Agency 130 Seward Street Juneau, Alaska 99801 Phone: 465-2450 POSITION STATEMENT: Drafted HB 162 and the Sponsor Substitute DEAN GUANELI Assistant Attorney General Criminal Division Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 Phone: 465-3428 POSITION STATEMENT: Available to answer questions BISHOP MICHAEL KENNY Catholic Diocese of Juneau 419 Sixth Street Juneau, Alaska 99801 Phone: 586-2227 POSITION STATEMENT: Testified against HB 162 TERRY BURRELL P.O. Box 8 Anchorage, Alaska 99510 Phone: 563-4454 POSITION STATEMENT: Testified in favor of HB 162 (via teleconference) MIKE WALLERI, Chief Counsel Tanana Chief's Conference 129 - 1st Ave., Suite 600 Fairbanks, Alaska 99707 POSITION STATEMENT: Testified against HB 162 (via teleconference) JANICE PRESTON P.O. Box 394 Homer, Alaska 99603 POSITION STATEMENT: Testified in favor of HB 162 (via teleconference) CHARLES CAMPBELL, Former Director Department of Corrections 3020 Douglas Highway Juneau, Alaska 99801 POSITION STATEMENT: Testified against HB 162 MARY S. SOLTIS 615 DeGroff Sitka, Alaska 99835 POSITION STATEMENT: Testified against HB 162 (via teleconference) RICH CURTNER, Attorney 24506 Teal Loop Anchorage, Alaska 99567 POSITION STATEMENT: Testified against HB 162 (via teleconference) PREVIOUS ACTION BILL: SCR 4 SHORT TITLE: REQUEST CHANGE IN RULE 82 FEES SPONSOR(S): SENATOR(S) TAYLOR JRN-DATE JRN-PG ACTION 03/29/93 974 (S) READ THE FIRST TIME/REFERRAL(S) 03/29/93 974 (S) JUDICIARY 04/05/93 (S) JUD AT 01:30 PM BELTZ ROOM 211 04/06/93 (S) JUD AT 01:30 PM BELTZ ROOM 211 04/12/93 (S) JUD AT 01:30 PM BELTZ ROOM 211 04/12/93 (S) MINUTE(JUD) 04/12/93 (S) MINUTE(JUD) 04/13/93 1331 (S) JUD RPT 3DP 1NR 04/13/93 1331 (S) ZERO FISCAL NOTE (S.JUD) 04/14/93 (S) MINUTE(RLS) 04/16/93 1440 (S) RULES RPT 3CAL 1NR 4/16/93 04/16/93 1449 (S) READ THE SECOND TIME SCR 4 04/16/93 1449 (S) PASSED Y11 N9 04/16/93 1449 (S) DUNCAN NOTICE OF RECONSIDERATION 04/18/93 1462 (S) HELD ON RECONSIDERATION TO 4/19/93 04/19/93 1554 (S) RECONSIDERATION TAKEN UP 04/19/93 1554 (S) PASSED ON RECONSIDERATION Y11 N9 04/19/93 1555 (S) TRANSMITTED TO (H) 04/20/93 1346 (H) READ THE FIRST TIME/REFERRAL(S) 04/20/93 1346 (H) JUDICIARY 04/23/93 (H) JUD AT 01:30 PM CAPITOL 120 04/23/93 (H) MINUTE(JUD) 01/21/94 (H) JUD AT 01:15 PM CAPITOL 120 01/21/94 (H) MINUTE(JUD) 01/26/94 (H) JUD AT 01:15 PM CAPITOL 120 BILL: HB 162 SHORT TITLE: CAPITAL PUNISHMENT FOR MURDER BILL VERSION: SSHB 162 SPONSOR(S): REPRESENTATIVE(S) SANDERS,Olberg,Bunde,Kott,Vezey, James JRN-DATE JRN-PG ACTION 02/18/93 380 (H) READ THE FIRST TIME/REFERRAL(S) 02/18/93 380 (H) JUDICIARY, FINANCE 02/22/93 421 (H) COSPONSOR(S): BUNDE 02/24/93 445 (H) COSPONSOR(S): KOTT 03/01/93 495 (H) COSPONSOR(S): VEZEY 03/02/93 510 (H) COSPONSOR(S): JAMES 11/16/93 (H) MINUTE(JUD) 11/16/93 (S) MINUTE(JUD) 01/19/94 2109 (H) SPONSOR SUBSTITUTE INTRODUCED-REFERRALS 01/19/94 2109 (H) JUDICIARY, FINANCE 01/26/94 (H) JUD AT 01:15 PM CAPITOL 120 ACTION NARRATIVE TAPE 94-9, SIDE A Number 000 The House Judiciary Standing Committee was called to order at 1:20 p.m. on January 26, 1994. A quorum was present. Chairman Porter announced that the committee would address SCR 4 first. SCR 4 - REQUEST CHANGE IN RULE 82 FEES Number 053 KEVIN SULLIVAN, legislative aide to Senator Robin Taylor, Prime Sponsor of SCR 4, testified on behalf of the sponsor. He read from a prepared sponsor statement, which stated the purpose of this resolution is to petition the supreme court to review the special status afforded public interest groups in the award of attorney fees under Rule 82 of the Alaska Rules of Civil Procedure. Mr. Sullivan said that for all Alaskans, except special interest groups, Rule 82 provides partial repayment of attorney fees to the prevailing party by the losing party, and the rule is designed to discourage frivolous litigation and tends to reduce the judicial caseload as a result. He continued, saying the exception to this rule is public interest litigation; and based on the supreme court's exception for public interest litigants, Rule 82 provides an economic incentive to various groups to sue because full attorney fees are paid to the public interest group if they prevail, and no attorney fees are charged if it loses. MR. SULLIVAN explained this raises a number of public policy issues. He noted point number one: What is a public interest that the court is protecting with this rule 82 exception? He gave an example and asked if it was really in the public interest for environmental groups to sue to close down businesses in Alaska. He continued with point number two: How much of a legal subsidy is realized by these groups and who pays for it? His third point asked if it was good public policy to encourage litigation by groups the supreme court has decided to favor, and how much does the supreme court's policy cost the state of Alaska. MR. SULLIVAN said certain groups are being encouraged to litigate because the state is compelled by the court to partially fund those groups with money from other Alaskans, including appropriated funds from the state. MR. SULLIVAN summarized, saying as Rule 82 is currently interpreted by the court, certain parties are encouraged with significant economic incentives to bring litigation against the state. He asked whether the interest of the public is truly being served by these public interest parties, which is also at issue. He concluded, saying the state is being directed to subsidize these questionable public interest litigants at great expense to the public itself, and SCR 4 encourages the supreme court to review these issues. Number 137 REP. NORDLUND said that SCR 4, in the resolves, seems to be targeting those groups that somehow deal with or oppose mass resource development in the state. He asked if it was constitutional to target specific public interest groups. Number 160 MR. SULLIVAN replied that "targeting" was perhaps a different way of describing it, and the legislation lists a name of a group as an example; and from a constitution perspective it doesn't seem to particularly impact it. MR. SULLIVAN went on to say that the court, through case law, has come up with a determination on what is public interest litigation, and SCR 4 is simply a resolution asking the supreme court to review Rule 82 as it currently applies to public interest litigants. Number 192 REP. NORDLUND told the committee that it seems ridiculous to state "groups founded to oppose natural resource development" and ask if there are any environmental groups that would state that as their mission. Number 199 MR. SULLIVAN said he wasn't in a position to speak for what environmental groups may say in their mission statements, but that particular portion of the resolution is speaking to historically what has been presented in the courts by parties that were litigating specific situations in terms of trying to impede or inhibit further resource development. Number 208 REP. GREEN asked if an amendment might help Rep. Nordlund's concerns and suggested different wording. Number 218 REP. PORTER suggested it would be in the committee's best interest to hear all the testimony before proposing amendments. Number 217 REP. DAVIDSON asked Mr. Sullivan if he could expand on which litigant groups have gained significantly economic advantage as a result of bringing public interest litigation. Number 220 MR. SULLIVAN responded that the significant economic incentive is the fact that as Rule 82 currently stands, should the party lose they would not be obligated to pay for the reasonable attorney costs of the defendant because they are determined to be public interest litigants, so it is a net savings in retrospect instead as opposed to up-front. Number 254 REP. DAVIDSON asked Mr. Sullivan if from his perspective it is an economic gain for the group. Number 255 MR. SULLIVAN stated that should a case be brought, and it's determined that the case is without merit, under current law if the plaintiff was not determined to be a public interest litigant, then that entity would be responsible for a portion of the reasonable attorney fees of the defendant. He said by being classified by the court as a public interest litigant, they are not responsible for the payment of those fees to the other party. Number 279 REP. DAVIDSON said according to Mr. Sullivan's interpretation, people bring litigation because they know they can't win, but it will cost the people they are bringing the litigation against. Number 286 MR. SULLIVAN replied no, and said he is not asserting that any litigant is bringing a claim which they know they can't win; he's simply saying that public interest litigants, if they lose, are not responsible for the fees of the other party; therefore, that would enter into a decision on what claims to pursue. Number 303 RUSSELL HEATH, Executive Director, Alaska Environmental Lobby, testified against SCR 4. He said the Alaska Environmental Lobby is a coalition of twenty Alaskan environmental groups, and his organization represents their interests in the Alaska State Legislature. Mr. Heath described the differences between a public interest lawsuit and a private lawsuit, and said the vast majority of public interest lawsuits are against state and local governments, not against private individuals or corporations. He said this is because there is no citizen suit provision in Alaska statutes. Number 509 TROY REINHART, Executive Director, Alaska Forest Association (AFA), testified in favor of SCR 4. He said AFA believes the current exception to Rule 82, which allows public interest groups to file litigation without risk of paying legal bills of those being sued, if they lose, only promotes frivolous lawsuits. Mr. Reinhart said the current exception to Rule 82 is bad public policy and must change, and if Rule 82 was changed, it would level the litigation playing field, although it would still provide public access to the courts for those seeking to settle disagreements and would also ensure that so-called public interest groups cannot file lawsuits against companies or individuals without at least being confident of prevailing or being assessed court costs. REP. DAVIDSON asked Mr. Reinhart if AFA subscribes to the statement that was made in the sponsor's comments that the supreme court favors a certain group over another. Number 550 MR. REINHART answered that his concern is particularly with environmental litigation that has been filed against his industry, and AFA believes that the way the current situation is set up, it's an unlevel playing field where environmental groups have all of an upside and no downside, and it actually does promote litigation. Number 577 REP. NORDLUND reiterated that most of these lawsuits are filed against government, and certainly they have an effect on the timber industry. He asked Mr. Reinhart if by supporting this resolution he realized that he is asking the court to take away this exemption for all public interest groups, including the League of Women Voters, National Rifle Association, and so on. Number 591 MR. REINHART responded that his interest in this bill, and that of his organization, is on the environmental side and that's why he was there to testify. Number 595 EMILY BARNETT, Trustees for Alaska, testified against SCR 4, saying that the resolution has nothing to do with attorneys and everything to do with public rights and the integrity of our nation's democratic processes. Number 689 REP. PHILLIPS said it appears that Ms. Barnett questioned the validity of the statement that the supreme court has interpreted the Alaska Rule of Civil Procedure to allow litigation organizations to recover full attorney fees. Number 696 MS. BARNETT replied that she's not questioning that statement, she's questioning language that would have you believe it is solely environmental litigation firms that are getting this privilege under Rule 82. Number 713 MARY A. NORDALE, an attorney in private practice in Juneau and President of the Alaska Miner's Association, testified in support of SCR 4, saying SCR 4 requests the Alaska Supreme Court to grant equity among litigants regardless of which segment of the economy they represent when the litigation challenges activities for which the state is granted permits, that is permanent activities. Ms. Nordale continued by saying that at the present time the Alaska Supreme Court casts a protective cloak over those litigants representing recreation and fishing interests against litigants who represent other resource related interests. Ms. Nordale stressed that this apparent preference of some users over others is contrary to their concepts of equal protection. MS. NORDALE said the Alaska Miner's Association believes that under Article 8, Section 1, all litigants involved in the development of the state's resources, supporting or opposing, have equal and constitutionally protected interests and they should be treated equally. Number 755 REP. DAVIDSON asked Ms. Nordale how many companies or individuals in the mining community have had to suffer those kinds of losses as a result of being up against this unequal playing field. Number 765 MS. NORDALE replied that there have been several hundred miners injured substantially because of litigation. She said one thing that is important to remember in a lot of litigation relating to natural resources is that the law firms that represent the so-called public interest groups are law firms that are in the business of litigation and solicit their own clients, and when they can find an appropriate target client to act as a plaintiff in the case, then they move forward with the case. Ms. Nordale said they also use any victories they achieve as fundraising mechanisms. Number 785 REP. DAVIDSON asked if it was the court that determined if litigation was public interest litigation. Number 792 MS. NORDALE responded yes, and she thinks the court has so narrowly construed the language public interest that SCR 4 can send a very powerful message to the court that it's time it looked more broadly at the definition. Number 797 REP. DAVIDSON asked Ms. Nordale to expand on "narrowly construed." Number 798 MS. NORDALE replied that primarily the groups that the courts designate as public interest are those primarily involved in recreation and occasionally fishing. Number 801 REP. PHILLIPS observed that special interest groups run massive, nationwide campaigns for membership based on the sole fact that they are litigating this case against an entity, and this is a significant financial impact, and this is a significant judicial point the committee should be considering. REP. NORDLUND asked Ms. Nordale to clarify the point she was making about comparing mining or timber companies, and the interest of that company versus the interest of recreation and fishing interests. Number 814 MS. NORDALE said she's hoping she's making the case for allowing mining, recreation, fishing, timber, and so on, all to be treated equally as being in the public interest under our constitution. MS. NORDALE continued, saying often a litigation firm will find a target plaintiff they can represent, a private entity that would be put to the expense of defending themselves, not so much to target that particular entity, but to test a matter of public policy. Number 830 REP. NORDLUND said that a vast majority of the cases are environmental firms against the state or federal government. Number 833 MS. NORDALE responded that it always involves a private business as well, so it doesn't level the playing field. Number 842 REP. PORTER asked what was the wish of the committee. Number 850 REP. PHILLIPS moved to move SCR 4 out of committee with individual recommendations. Number 850 REP. NORDLUND cited his opposition to the bill, primarily because of the way it was drafted in the "Whereas's." Number 866 REP. DAVIDSON cited his opposition to SCR 4, and asked to hear from the supreme court on this issue. TAPE 94-9, SIDE B Number 003 REP. PORTER indicated his support for SCR 4, and said he believes the resolution is intended to be a reflection of the result of the supreme court's actions and decisions they've made. Rep. Porter said he intends to support the measure because most of the testimony seems to presume that the only access the public has is through costly litigation, and that's just not the case. He cited several avenues available to interested parties prior to having to litigate. REP. PORTER also said he believes the advantage flows to someone of a particular philosophy over someone else of a particular philosophy, and equity-wise he doesn't believe that's fair. He cited one of the unfairnesses as being that public litigants do receive full compensation for attorney's fees if they prevail, as opposed to any other litigant under Rule 82 that would get something between twenty and thirty percent. REP. PORTER concluded by saying that responsible development is in the public interest and this speaks against it, which is why he is going to vote for SCR 4. REP. PHILLIPS pointed out that not only is responsible development of our natural resources in the best public interest, it is also mandated in the constitution. Number 084 REP. PORTER called for a roll call vote on the motion. Rep. Green yes Rep. Kott yes Rep. Nordlund no Rep. Phillips yes Rep. Davidson no Rep. Porter yes SCR 4 WAS MOVED FROM COMMITTEE WITH INDIVIDUAL RECOMMENDATIONS. HB 162 - CAPITAL PUNISHMENT FOR MURDER Number 087 CHAIRMAN PORTER brought HB 162 to the table. Number 110 REP. JERRY SANDERS, Prime Sponsor of HB 162, asked everyone listening to testimony on this bill to keep in mind that there are a few people who are not like those of us in this room, and that it is hard to imagine these cold-blooded predators who threatened our lives and our loved ones. He said even when these people are in custody, they are a threat to law enforcement and corrections officials, along with the possibility they might escape and claim more innocent victims. Number 177 JERRY LUCKHAUPT, Legal Counsel, Division of Legal Services, Legislative Affairs Agency, indicated that he was the bill drafter for HB 162 and the Sponsor Substitute (SS), which is basically identical to SB 127, the Senate version of HB 162. He outlined the differences, the first being that the SS lacks findings and does not ask for an election to seek the death penalty, making it a permissible sentencing option. Mr. Luckhaupt said the next difference relates to the description of the jury finding mitigating or aggravating factors. He said the final change is that the SS lacks flagging Rules of Court, meaning the legislature must have a two-thirds majority to change court rules, and the SS does not require that vote. MR. LUCKHAUPT continued by saying the SS is basically no different in a substantive way than the original bill, and the sponsor believes a two-thirds vote to change court rules is not needed. Number 337 REP. NORDLUND referred to the section of HB 162 that asks the supreme court to expedite appeals, and noted it is not in the SS. He added that the legislation is not dealing with court rule changes up-front. Number 369 MR. LUCKHAUPT responded that it is up to the legislature to decide if they are making changes to court rules, and it must decide if they are making substantive or procedural changes. Number 490 REP. NORDLUND said there seems to be a question of whether it is constitutional. Number 502 REP. PORTER asked Dean Guaneli from the Department of Law for his input. Number 510 DEAN GUANELI, Criminal Division, Department of Law, said he was available to answer questions, and the committee had heard from Mr. McNally in November when he explained the administration's position in great detail. Number 525 REP. PHILLIPS asked for a summary of the governor's position. Number 532 MR. GUANELI replied that rather than try to summarize a fairly lengthy presentation, he suggested that he would have the tape of the hearing transcribed and would make it available for the committee to take a look at. Number 539 REP. NORDLUND said he couldn't remember all of Mr. McNally's testimony, but he thinks he mentioned prosecution needing another tool for law enforcement. Rep. Nordlund pointed out that the problem with the death penalty is that it is inequitable, especially for the poor. Number 576 REP. DAVIDSON asked Mr. Guaneli if this issue would be a monetary-based system, and were there assurances that all people charged with the death penalty would be given access to good counsel. Number 590 REP. PORTER said it is his understanding that in federal death penalty cases, regardless of income, the defendant is given two attorneys. He asked if there was anything in HB 162 similar to federal practice, and asked Mr. Guaneli if he believes that would be the process in Alaska. Number 598 MR. GUANELI responded that there is nothing in the bill that directs that practice; however, something along those lines would be a likely result in rules provided by the supreme court. He directed the question to John Salemi from the public defender's office. Number 621 REP. BETTYE DAVIS testified against HB 162, expressing concern about fairness, racism, cost, and possible mistakes being made. She urged the committee to study the impact of the death penalty on minorities. Rep. Davis concluded that it would be a grave mistake to enact a death penalty. Number 818 REP. NORDLUND cited statistics showing that the death penalty is a racially biased system. Number 841 REP. DAVIS also cited various statistics pertaining to the percentage of minorities in jail, versus white prisoners. Number 850 The committee and Rep. Davis discussed various statistical information pertaining to the death penalty. TAPE 94-10, SIDE A Number 035 BISHOP MICHAEL KENNY testified against HB 162, and focused on the practical issues, such as the effect on society in general. Bishop Kenny said we need to look at better ways to ensure public safety. He opposed the death penalty because it is the ultimate form of violence done by the state; it panders to baser instincts in each of us, and it serves to further alienate and isolate those individuals on the fringes of our society. He concluded, saying that the death penalty creates a false sense of security in society. Number 169 REP. PORTER asked for testimony from John Creighton in Bethel and was informed he had left a written statement for the record. Number 202 TERRY BURRELL of Anchorage testified in support of HB 162. Number 320 MIKE WALLERI, Chief Counsel for the Tanana Chief's Conference, testified against HB 162 and said a disproportionate number of those killed under the death penalty would be Natives and other minorities. He cited cultural factors that impact Natives, including that Natives are more willing to confess to crimes. Mr. Walleri urged the committee to hold a hearing on the racial impact of the death penalty. Number 476 JANICE PRESTON of Homer testified in favor of HB 162 and said that we need more police protection and speedier adjudications of criminal cases. Number 662 CHARLES CAMPBELL, former Director of the Department of Corrections, testified against HB 162, saying it is a futile, senseless practice that has no deterrent value, and is extremely costly. Number 665 MARY S. SOLTIS of Sitka testified against HB 162 and said the focus should be on life imprisonment without parole. Number 711 RICH CURTNER, an attorney from Anchorage, testified against HB 162. He cited his experience in death penalty cases while he was practicing law in Ohio, and cited the cost and emotional toll as reasons to oppose the death penalty. Number 796 REP. PORTER concluded the hearing on HB 162 and stated his intention to continue hearing the bill at the next meeting. ADJOURNMENT CHAIRMAN PORTER ADJOURNED the meeting at 4:55 p.m.