Legislature(2005 - 2006)

2005-01-31 Senate Journal

Full Journal pdf

2005-01-31                     Senate Journal                      Page 0189
                                                                                                    
                                      SENATE JOURNAL                                             
                                                                                                    
                                 ALASKA STATE LEGISLATURE                                        
                                                                                                    
                                 TWENTY-FOURTH LEGISLATURE                                       
                                                                                                    
                                       FIRST SESSION                                             
                                                                                                    
Juneau, Alaska                                  Monday                          January 31, 2005  
                                                                                                    
                                     Twenty-second Day                                           
                                                                                                    
                                                                                                    
Pursuant to adjournment the Senate was called to order by President                                 
Stevens at 11:02 a.m.                                                                               
                                                                                                    
The roll showed sixteen members present. Senators Davis, Dyson,                                     
Guess, Seekins were excused from a call of the Senate.                                              
                                                                                                    
The prayer was offered by the Chaplain, Pastor Robert Sherwood of                                   
the Church of the Nazarene. Senator Hoffman moved and asked                                         
unanimous consent that the prayer be spread. Without objection, it was                              
so ordered.                                                                                         
                                                                                                    
       Thank You for the precious gift You have given these                                         
       senators and this staff. Thank You for the precious and                                      
       fragile gift of life and the gift of consciousness.                                          
                                                                                                    
       We might stand in this chamber and address the speaker and                                   
       find ourselves cut down by a stroke in mid-sentence, not                                     
       able to speak again. Or we might pass out the doors of this                                  
       chamber, feel a tremendous pressure in our chest and                                         
       collapse in the hallway, the victim of a massive heart attack.                               
                                                                                                    
       How will we be remembered? Will our lives reflect the                                        
       words of the prophet: "He has showed you, O man, what is                                     
       good. And what does the Lord require of you? To act justly                                   
       and to love mercy and to walk humbly with your God."                                         
       (Micah 6:8)                                                                                  
                                                                                                    
       Or will we appear like Peppermint Patty when she presented                                   
       her teacher with a vase of good intentions, with our pockets                                 
       full of round-to-its.                                                                        

2005-01-31                     Senate Journal                      Page 0190
       Give vases of deep red or yellow roses to those you love and                                 
       appreciate while you can. Give the gift of kindness while                                    
       you may. Let us realize afresh that it is in giving that we                                  
       receive. And with Augustine, that it is in dying that we are                                 
       born to eternal life. This may be the only day, the only                                     
       season you are given.                                                                        
                                                                                                    
       With respect to all  faiths, in  the resurrected  name of  Jesus.                            
                                                                                             Amen.  
                                                                                                    
Senator French led the Senate in the Pledge of Allegiance.                                          
                                                                                                    
                                                                                                    
                                       Certification                                             
                                                                                                    
Senator Gary Stevens moved and asked unanimous consent that the                                     
journals for the eighteenth through twenty-first legislative days be                                
approved as certified by the Secretary. Without objection, it was so                                
ordered.                                                                                            
                                                                                                    
                                                                                                    
                                  Messages from the House                                        
                                                                                                    
Message dated January 28 was read, stating the House passed and                                     
transmitted for consideration:                                                                      
                                                                                                    
                              First Reading and Reference of                                     
                                     House Resolutions                                           
                                                                                                    
HJR 4                                                                                             
CS FOR HOUSE JOINT RESOLUTION NO. 4(RES) am by                                                      
REPRESENTATIVES HAWKER, Samuels, Ramras, Holm, Stoltze,                                             
Lynn, McGuire, Seaton, Chenault, Kelly, Anderson, Wilson,                                           
Dahlstrom, Kohring, LeDoux, Rokeberg, Harris, Meyer, Gardner,                                       
Olson, Croft, Gruenberg,                                                                            
                                                                                                    
             Urging the United States Congress to pass legislation                                  
             to open the coastal plain of the Arctic National                                       
             Wildlife Refuge, Alaska, to oil and gas exploration,                                   
             development, and production.                                                           

2005-01-31                     Senate Journal                      Page 0191
was read the first time and referred to the Rules Committee.                                        
                                                                                                    
                                                                                                    
                                      Communications                                             
                                                                                                    
The following reports are on file in the Office of the Secretary of the                             
Senate:                                                                                             
                                                                                                    
Special Report to the State of Alaska Legislature and Administration,                               
January 2005                                                                                        
from Patrick Gamble, President and CEO, Alaska Railroad                                             
Corporation                                                                                         
                                                                                                    
Annual State Loan Report (notification of availability)                                             
from Edgar Blatchford, Commissioner, Department of Commerce,                                        
Community and Economic Development                                                                  
in accordance with AS 37.05.035 and AS 16.10.350(b)                                                 
                                                                                                    
2004 Annual Report of Fisheries Enhancement Loan Extensions                                         
from Edgar Blatchford, Commissioner, Department of Commerce,                                        
Community and Economic Development                                                                  
in accordance with AS 16.10.510(11)                                                                 
                                                                                                    
Report of the 2005 Alaska Minerals Commission                                                       
from Irene Anderson, Chair, Alaska Minerals Commission,                                             
Department of Commerce, Community, and Economic Development                                         
in accordance with AS 44.33.431                                                                     
                                                                                                    
                                                                                                    
                                Standing Committee Reports                                       
                                                                                                    
SB 42                                                                                             
The Labor and Commerce Committee considered SENATE BILL NO.                                         
42 "An Act extending the reporting date for and the termination date                                
of the Task Force on Naturopathic Scope of Practice; and providing                                  
for an effective date." Signing do pass: Senator Bunde, Chair; Senators                             
Seekins, Ben Stevens. Signing no recommendation: Senator Ellis.                                     
                                                                                                    
                                                                                                    
                                                                                                    

2005-01-31                     Senate Journal                      Page 0192
The following fiscal information was published today:                                               
 Fiscal Note No. 1, zero, Department of Commerce, Community                                         
       and Economic Development                                                                     
                                                                                                    
President Stevens removed the Finance Committee referral on the bill.                               
                                                                                                    
The bill was referred to the Rules Committee.                                                       
                                                                                                    
                                                                                                    
                        Introduction and Reference of Senate Bills                               
                                                                                                    
SB 85                                                                                             
SENATE BILL NO. 85 BY SENATOR SEEKINS, entitled:                                                    
                                                                                                    
                    "An Act repealing the ban on the use of certain off-                           
                  road vehicles within five miles of the right-of-way of                           
                      the James Dalton Highway; and providing for an                               
             effective date."                                                                       
                                                                                                    
was read the first time and referred to the Transportation and                                      
Resources Committees.                                                                               
                                                                                                    
SB 86                                                                                             
SENATE BILL NO. 86 BY THE SENATE RULES COMMITTEE                                                    
BY REQUEST OF THE GOVERNOR, entitled:                                                               
                                                                                                    
                    "An Act relating to the liability of the state and                             
                 municipalities for attorney fees in certain civil actions                         
             and appeals; and providing for an effective date."                                     
                                                                                                    
was read the first time and referred to the Community and Regional                                  
Affairs and Judiciary Committees.                                                                   
                                                                                                    
The following fiscal information was published today:                                               
 Fiscal Note No. 1, zero, Department of Administration                                              
 Fiscal Note No. 2, zero, Department of Law                                                         
                                                                                                    
Governor's transmittal letter dated January 27:                                                     
                                                                                                    
                                                                                                    

2005-01-31                     Senate Journal                      Page 0193
Dear President Stevens:                                                                             
                                                                                                    
Under the authority of art. III, sec. 18, of the Alaska Constitution, I am                          
transmitting a bill to, as a matter of sovereign immunity, limit the                                
award of attorney's fees against the state and municipalities.                                      
                                                                                                    
Since territorial days, Alaska has had a statutory policy of requiring                              
the losing party in most litigation to pay a portion of the prevailing                              
party's attorney fees.  In recent years, this policy has been embodied                              
primarily in Alaska Rule of Civil Procedure 82, which the Alaska                                    
Supreme Court adopted in response to a legislative delegation, made                                 
immediately following statehood, in AS 09.60.010.  In most cases, the                               
prevailing party receives a partial fee award, equal to no more than 20                             
percent of a money judgment or 20 percent of actual fees in a non-                                  
monetary case.                                                                                      
                                                                                                    
In cases brought against state or local governments, departures from                                
the general rule of partial fee reimbursement have occurred with some                               
regularity, with the governmental party required to reimburse all of the                            
prevailing party's fees.  Ordinarily, the basis for these enhanced fee                              
awards has been the judicially created public interest litigant policy,                             
wherein selected litigants bringing suits to advance ends deemed by                                 
the court to reflect strong public policies are granted full fees as a                              
subsidy from the state treasury.  The cost of this subsidy has been                                 
significant to the state in all recent fiscal years and, on a more irregular                        
basis, has been significant to the municipalities targeted by such                                  
lawsuits.                                                                                           
                                                                                                    
There are instances where a Legislative policy sufficiently supports                                
full attorney fee awards and the legislature has chosen to provide for                              
them by statute.  Full reimbursement is also important for eminent                                  
domain proceedings.  Beyond these contexts, the Legislature has not                                 
identified a policy that would support a direct public subsidy to private                           
litigants that goes beyond the traditional norm of partial fee awards.                              
To ensure that public money is not disbursed as a subsidy to these                                  
litigants without an appropriate legislative authorization, this bill                               
would provide, as a matter of sovereign immunity, that the state or a                               
municipality would not be liable for an attorney fee award in excess of                             
certain percentages of a money judgment or, if a money judgment is                                  
not recovered, certain percentages of the reasonable actual attorney                                
fees the prevailing party incurred in litigating the issues upon which                              

2005-01-31                     Senate Journal                      Page 0194
the party prevailed.  This would prevent enhanced fee awards against                                
the state or municipalities that are not authorized by statute, but leave                           
those governments open to the standard partial fee awards called for in                             
the Civil Rule 82 fee schedule.                                                                     
                                                                                                    
Section 1 of the bill describes the purposes of the Legislation.  It notes                          
the fiscal impact of enhanced fee awards, and specifically relies on the                            
legislature's constitutional authorities in regulating this area.  Section                          
1 states clearly that this bill, if enacted into law, would neither                                 
preclude nor repeal specific statutes authorizing the award of costs or                             
fees in particular situations.                                                                      
                                                                                                    
Section 2 of the bill would create a new provision in the chapter of                                
AS 09 devoted to immunities.  It provides that for civil actions or                                 
appeals in which a money judgment is recovered, the state and                                       
municipalities are not liable to pay more than 20 percent of the money                              
judgment.  In civil actions in which no money judgment is recovered,                                
the liability of the state and municipalities for attorney fees for cases                           
that go to trial is capped at 30 percent of the reasonable actual attorney                          
fees that were necessarily incurred in litigating issues on which the                               
party prevailed, and 20 percent for cases that do not go to trial.  For                             
appeals in which no money judgment is recovered, the liability of the                               
state and municipalities for attorney fees is capped at 20 percent of                               
reasonable actual attorney fees that were necessarily incurred in                                   
litigating issues on which the party prevailed.  These limits on liability                          
are very similar to the limits that courts have found for years to                                  
represent fair partial compensation to a prevailing party.  These                                   
limitations do not apply if the statutes provide differently, if the courts                         
determine it is appropriate to award attorney fees as a sanction for                                
misconduct by a party or the party's counsel, or in cases involving the                             
condemnation of property under the power of eminent domain.                                         
                                                                                                    
Section 3 of the bill would make the bill, if enacted into law,                                     
applicable only to civil actions or appeals initiated after it takes effect.                        
                                                                                                    
I urge your prompt consideration and passage of this bill.                                          
                                                                                                    
Sincerely yours,                                                                                    
/s/                                                                                                 
Frank H. Murkowski                                                                                  
Governor                                                                                            

2005-01-31                     Senate Journal                      Page 0195
                                    Unfinished Business                                          
                                                                                                    
Senator Wilken moved and asked unanimous consent to be excused                                      
from the Senate, not subject to a call, from afternoon plane time,                                  
February 4 through morning plane time, February 7. Without                                          
objection, Senator Wilken was excused.                                                              
                                                                                                    
Senator Cowdery moved and asked unanimous consent to be excused                                     
from a call of the Senate from 1:00 pm, February 3 through plane                                    
time, February 6. Without objection, Senator Cowdery was excused.                                   
                                                                                                    
                                                                                                    
                                       Announcements                                             
                                                                                                    
Announcements are at the end of the journal.                                                        
                                                                                                    
                                                                                                    
                                        Adjournment                                              
                                                                                                    
Senator Gary Stevens moved and asked unanimous consent that the                                     
Senate stand in adjournment until 11:00 a.m., February 2, 2005.                                     
Without objection, the Senate adjourned at 11:15 a.m.                                               
                                                                                                    
                                                                                        Kirsten Waid
                                                                         Secretary of the Senate    
                                                                                                    
                                                                                        January 2005

2005-01-31                     Senate Journal                      Page 0196
                                       Announcements                                             
                                                                                                    
Americans with Disabilities Act Notice - Persons with disabilities who require                      
special accommodation or alternative communication formats to access                                
committee meetings may contact the appropriate committee office or the                              
Legislative Information Office in their community. Reasonable advance                               
notice is needed to accommodate the request. For further information, call the                      
ADA Coordinator at 465-3854 Voice/465-4980 TDD.                                                     
                                                                                                    
                                                                                                    
                                    STANDING COMMITTEES                                          
+ indicates teleconference                                                                          
= indicates bill previously heard/scheduled                                                         
                                                                                                    
                               COMMUNITY & REGIONAL AFFAIRS                                      
                                                                                                    
Jan 31              Monday                                             Beltz 211                1:3
+= SB  14 MUNICIPAL  ELECTIONS                                                                      
                                                                                                    
Feb 02              Wednesday                                          Beltz 211                1:3
                    No Meeting Scheduled                                                            
                                                                                                    
Feb 04              Friday                                             Beltz 211                1:3
+ SB  77 AK REGIONAL ECONOMIC ASSISTANCE PROGRAM                                                    
                         ----------------------------------------                                  
                                                                                                    
                                          FINANCE                                                
                                                                                                    
Jan 31              Monday                             Senate Finance 532                       9:0
                    No Meeting Scheduled                                                            
                                                                                                    
Feb 01              Tuesday                            Senate Finance 532                       9:0
                    No Meeting Scheduled                                                            
                                                                                                    
Feb 02              Wednesday                          Senate Finance 532                       9:0
                    No Meeting Scheduled                                                            
                                                                                                    
Feb 03              Thursday                           Senate Finance 532                       9:0
                    -- Teleconference <Listen Only> --Joint w/(H) Finance                           
                    University of Alaska Presentation                                               
                                                                                                    
Feb 04              Friday                             Senate Finance 532                       9:0
                    No Meeting Scheduled                                                            

2005-01-31                     Senate Journal                      Page 0197
                            HEALTH, EDUCATION & SOCIAL SERVICES                                  
                                                                                                    
Jan 31              Monday                                     Butrovich 205                  12:00
                    Presentation: Adequate Yearly Progress                                          
                    (AYP) Portion of the No Child Left Behind                                       
                    School Accountability Act (NCLB), and                                           
                    the Reporting of Student Progress.                                              
                    Commissioner Roger Sampson & Les Morse,                                         
                    Dept EED                                                                        
                                                                                                    
Jan 31              Monday                                     Butrovich 205                    1:3
                    No Meeting Scheduled                                                            
                                                                                                    
Feb 02              Wednesday                                  Butrovich 205                    1:3
+ SB  60 EXTEND SUICIDE PREVENTION COUNCIL                                                          
+= SB  22 MEDICAID COVERAGE FOR BIRTHING CENTERS                                                    
                                                                                                    
Feb 04              Friday                                     Butrovich 205                    1:3
+                   Bills Previously Heard/Scheduled                                                
                         ----------------------------------------                                  
                                                                                                    
                                         JUDICIARY                                               
                                                                                                    
Feb 01              Tuesday                                    Butrovich 205                    8:3
                    No Meeting Scheduled                                                            
                                                                                                    
Feb 02              Wednesday                                  Butrovich 205                    8:3
                    -- Meeting Canceled --                                                          
+                   Overview of the Department of Law                                               
                    (Continued from 1/26/05 Meeting)                                                
+                   Bills Previously Heard/Scheduled                                                
                                                                                                    
Feb 03              Thursday                                   Butrovich 205                    8:3
+                   Overview of Therapeutic Courts                                                  
+                   Bills Previously Heard/Scheduled                                                
                         ----------------------------------------                                  
                                                                                                    
                                     LABOR & COMMERCE                                            
                                                                                                    
Feb 01              Tuesday                                            Beltz 211                1:3
                    -- Meeting Rescheduled to 2/08/05 --                                            
+ SB  52 OCCUPATIONS/CORPORATIONS/BANKS/SECURITIES                                                  
+ SB  25 GENETICALLY MODIFIED FISH                                                                  

2005-01-31                     Senate Journal                      Page 0198
                               LABOR & COMMERCE (continued)                                      
                                                                                                    
Feb 03              Thursday                                           Beltz 211                1:3
                    No Meeting Scheduled                                                            
                                                                                                    
Feb 08              Tuesday                                            Beltz 211                1:3
                    Commissioner Greg O'Claray                                                      
                    Department of Labor & Workforce                                                 
                    Development: Update on Training Programs                                        
                    For Alaskans in Oil/Gas/Mining Industries                                       
+= SB  52 OCCUPATIONS/CORPORATIONS/BANKS/SECURITIES                                                 
                    <Bill Hearing Rescheduled from 2/01/05>                                         
+= SB  25 GENETICALLY MODIFIED FISH                                                                 
                    <Bill Hearing Rescheduled from 2/01/05>                                         
                         ----------------------------------------                                  
                                                                                                    
                                         RESOURCES                                               
                                                                                                    
Jan 31              Monday                                     Butrovich 205                    3:3
                    -- Teleconference <Listen Only> --                                              
                    Bills Previously Heard/Scheduled                                                
= SB  69 APPROP: GRANT TO ARCTIC POWER FOR ANWR                                                     
                    Overview - Division of Oil and Gas                                              
                    Director Mark Myers                                                             
                                                                                                    
Feb 02              Wednesday                          Senate Finance 532                     12:00
                    -- Time and Location Change --                                                  
                    Joint w/(H) Resource                                                            
                    Alaska Mining Industry Overview                                                 
                    Work Session                                                                    
                    Noon - 1:30 Meeting Time                                                        
                                                                                                    
Feb 02              Wednesday                                  Butrovich 205                    3:3
+ SB  55 AGRICULTURAL LAND                                                                          
                                                                                                    
Feb 04              Friday                                     Butrovich 205                    3:3
                    No Meeting Scheduled                                                            
                         ----------------------------------------                                  
                                                                                                    
                                       STATE AFFAIRS                                             
                                                                                                    
Feb 01              Tuesday                                            Beltz 211                3:3
+                   Bills Previously Heard/Scheduled                                                

2005-01-31                     Senate Journal                      Page 0199
                                 STATE AFFAIRS (continued)                                       
                                                                                                    
Feb 03              Thursday                                           Beltz 211                3:3
+                   Overview: Department of Administration -                                        
                    Hearings and Appeals                                                            
+                   Legislative Legal Services -                                                    
                    Review Process of Department Proposed                                           
                    Regulations                                                                     
+                   Bills Previously Heard/Scheduled                                                
                         ----------------------------------------                                  
                                                                                                    
                                      TRANSPORTATION                                             
                                                                                                    
Feb 01              Tuesday                                    Butrovich 205                    1:3
                    No Meeting Scheduled                                                            
                                                                                                    
Feb 03              Thursday                                   Butrovich 205                    1:3
       SB  63 USE SEAT BELT ROAD SIGNS                                                              
       SB  40 KUSKOKWIM PORT AUTHORITY                                                              
                         ----------------------------------------                                  
                                                                                                    
                                   FINANCE SUBCOMMITTEES                                         
                                                                                                    
                                        CORRECTIONS                                              
                                                                                                    
Feb 03              Thursday                           Senate Finance 532                       4:0
                    (For Corrections, Court System and H&SS)                                        
                    Mental Health Trust Authority                                                   
                    Presentation                                                                    
                    (Teleconferencing available upon                                                
                    request with 24-hour notice)                                                    
                         ----------------------------------------                                  
                                                                                                    
                                       COURT SYSTEM                                              
                                                                                                    
Feb 03              Thursday                           Senate Finance 532                       4:0
                    (For Corrections, Court System and H&SS)                                        
                    Mental Health Trust Authority                                                   
                    Presentation                                                                    
                    (Teleconferencing available upon                                                
                    request with 24-hour notice)                                                    
                         ----------------------------------------                                  

2005-01-31                     Senate Journal                      Page 0200
                             FINANCE SUBCOMMITTEES (continued)                                   
                                                                                                    
                                 HEALTH & SOCIAL SERVICES                                        
                                                                                                    
Feb 03              Thursday                           Senate Finance 532                       4:0
                    (For Corrections, Court System and H&SS)                                        
                    Mental Health Trust Authority Presentation                                      
                    (Teleconferencing available upon                                                
                    request with 24-hour notice)                                                    
                         ----------------------------------------                                  
                                                                                                    
                                     JOINT COMMITTEES                                            
                                                                                                    
                             ADMINISTRATIVE REGULATION REVIEW                                    
                                                                                                    
Feb 02              Wednesday                                        Capitol 17                 1:0
+                   Committee Orientation and Regulatory                                            
                    Process Overview                                                                
                         ----------------------------------------                                  
                                                                                                    
                                    LEGISLATIVE COUNCIL                                          
                                                                                                    
Feb 03              Thursday                           Senate Finance 532                     12:00
                    --Agenda to be Announced--                                                      
                         ----------------------------------------                                  
                                                                                                    
                                      OTHER MEETINGS                                             
                                                                                                    
                                     CHILDREN'S CAUCUS                                           
                                                                                                    
Feb 08              Tuesday                                    Butrovich 205                  12:00
+                   Alaska Children's Justice Act Task Force                                        
                    Reviewing Practice, Policy, and Laws on Child Abuse.                            
                         ----------------------------------------                                  
                                                                                                    
                                       JOINT SESSION                                             
                                                                                                    
Feb 23              Wednesday                              House Chamber                      11:00
                    State of the Judiciary                                                          
                    Chief Justice Alexander O. Bryner                                               
                                                                                                    
Feb 24              Thursday                               House Chamber                      11:00
                    Address by U.S. Senator Ted Stevens