Legislature(1995 - 1996)
03/26/1996 08:10 AM Senate FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CS FOR HOUSE BILL NO. 468(FIN) am
An Act making supplemental appropriations for the
expenses of state government and making and
amending appropriations; ratifying certain state
expenditures; and providing for an effective date.
Co-chairman Frank directed that the FY 96 supplemental
budget be brought on for discussion and asked that
representatives of the administration speak to department
requests.
Dept. of Law
BARBARA RITCHIE, Deputy Attorney General, Civil Division,
Dept. of Law, came before committee. She explained that the
$369.3 request under Sec. 9(a) would fund various judgments
and claims against the state that accumulated over the year.
NANCY SLAGLE, Director of Budget Review, Office of
Management and Budget, noted that the $369.3 includes $144.0
in judgments plus $225.3 for a settlement from the
international airport revenue fund, relating to safety
officers at the Anchorage International Airport.
Mrs. Ritchie next described the class action against the
City of Kodiak and the state over conditions at the Kodiak
Jail--a community jail under contract to the state. This
case, which has been ongoing over five years, involves
complicated questions of confinement. Additional questions
related to state liability for a city-operated jail under
contract to hold state prisoners. The state won a partial
summary judgment clarifying that the Cleary case does not
apply to community jails. In the settlement, the state paid
25 percent of awarded attorney fees of $104.0 and $2.0. The
City of Kodiak paid the remaining 75 percent.
Senator Sharp asked if Alaska Legal Services was funded by
the state. Mrs. Ritchie explained that it is primarily
funded by federal appropriations. However, it has
historically received some state funding via grants through
community and regional affairs. Senator Sharp suggested
that the $27.0 award for attorney fees be removed from the
supplemental.
Mrs. Ritchie explained that the State v. Meyer case involved
a sexual discrimination appeal filed against the Alaska
Dept. of Fish and Game and the Alaska Human Rights
Commission in March of 1987. Both the superior and supreme
courts ruled in favor of Ms. Meyer and ordered that court
costs and attorney fees of $1,148.25 be paid by the state.
LAURIE OTTO, Deputy Attorney General, Criminal Division,
Dept. of Law, explained that Durham v. Kincheloe relates to
Cleary. The plaintiff sued saying it was unconstitutional
under a U.S. Supreme Court case to require that the inmate
take psychotropic medication. The state argued that Cleary
provisions were controlling. The court disagreed and found
that state procedures for administering psychotropic
medicines against an inmate's will did not comply with the
U.S. Supreme Court mandate. The state voluntarily rewrote
its policies and procedures to comply. It was, however,
required to pay the plaintiff's attorney fees for litigating
the issue.
Discussion followed regarding the function of the disability
law center. Ms. Otto noted that in the Durham case the
inmate had a severe mental illness. Senator Randy Phillips
asked that the department determine whether the center
receives state appropriations.
Senator Rieger voiced his understanding that the Cleary
settlement was in conflict with the U.S. Constitution. He
then asked if the department has the ability to revise the
settlement without a separate court order. Ms. Otto said
the final order in Cleary spells out a procedure for
administering psychotropic medicines against an inmate's
will. The U.S. Supreme Court issued an opinion which
conflicts with Cleary. The U.S. Constitution always
controls over an order of a lower court. It is possible to
litigate whether or not certain provisions of the Cleary
final order are unconstitutional. It is more difficult to
re-litigate other portions of it, although re-litigation is
possible. The fact that a portion of the settlement is
found to be deficient does not negate the remainder.
In response to a question from Senator Sharp, Ms. Otto
explained that an employee of the Dept. of Corrections
(Kincheloe) was sued in his official capacity as the
superintendent of the institution where the drugs were
administered. The original request for attorney fees was
$65.0. The department was able to negotiate a reduction to
$45.0. The fees will accrue to the disability law center.
Attorney fees in the amount of $1,219.0 in CSED v. Allsop
reflect an Alaska Supreme Court award. Mrs. Ritchie
explained that as a result of statutory changes, these types
of cases will disappear. The instant case involved CSED's
role in dis-establishment of paternity. Statutory revisions
now allow the division to dis-establish paternity
administratively. Discussion of particulars of the case
followed.
Senator Rieger noted indications that attorney fees had been
reduced by 80 percent and asked who would bear that portion
of the cost. Mrs. Ritchie replied that it would have to be
paid by Mr. Allsop. Senator Rieger stated his concern that
it appears the defendant will be made to bear the cost of
setting the record straight. Mrs. Ritchie stressed that one
reason the case was pursued was to clarify CSED's role in
these cases and obtain a definitive ruling. The law has
since been corrected. Co-chairman Halford concurred that
the individual should not be made to pay the cost of "an
impossible case where the state was wrong."
Mrs. Ritchie explained that in the case of City of Fairbanks
v. State Dept. of Labor (Workers' Compensation) the
$2,838.62 in attorney fees and costs of $525.17 would be
paid to the office of the city attorney in Fairbanks. The
case involves the Workers' Compensation Board denial of the
city's application for self-insurance. When the city
appealed, the superior court reversed the board decision.
The city moved for full attorney fees and was granted half
by the court. The Dept. of Law has subsequently worked with
the Workers' Compensation Board regarding different
regulatory requirements, between public and private
entities, for determining eligibility requirements for self-
insurance.
The $42,855.00 payable to Trustees for Alaska in the suit
against the Dept. of Natural Resources involves a challenge
to state best interest findings for a particular oil and gas
lease sale on behalf of the trustees, the city of Kaktovik,
and numerous environmental organizations. The supreme
court remanded best interest findings to DNR for further
findings. As the prevailing party, the trustees were
granted attorney fees in both the superior court case and
the supreme court appeal. Fees in the appeal have been
paid. This claim is for superior court fees. The trustees
charged that DNR did not give adequate consideration to the
environmental risks of transporting oil from the off-shore
lease area to market. Litigation has helped clarify the
scope of best interest findings and the required depth of
analysis to support findings in future lease sales. The
state prevailed on all issues before the superior court.
The trustees prevailed on two issues upon appeal. The state
objected to attorney fees and costs at both court levels,
arguing that fees should be reduced to reflect only work on
the two issues on which the trustees ultimately prevailed.
Both courts awarded the trustees substantially all of the
fees they requested. Senator Sharp suggested that
deductions be made in the court budget to cover the awarded
fees.
The $11,829.76 payable to the disability law center in Weiss
v. State represents interim costs and fees following the
1985 supreme court decision in the mental health trust lands
case. The court found that the state breached the trust by
redesignating trust lands. On remand the court awarded
these interim costs and fees to the plaintiff. Co-chairman
Frank asked for a breakdown of all attorney fees paid in the
case and who the payments were to. Senator Sharp asked if
the state expects continuing expenses from the case. Mrs.
Ritchie noted that the merits case on the mental health
trust appeal is pending before the supreme court. A
briefing schedule was recently issued. Briefing will occur
through summer and into fall. There are 180 points on
appeal. Mrs. Ritchie said she would provided a memorandum
updating the status of litigation.
Senator Rieger inquired concerning particulars of the
$261.00 payable in CSED v. Bond. Mrs. Ritchie explained
that the award of attorney fees stems from a paternity suit
which questioned whether Rule 82 fees should apply to CSED
paternity cases. The court ruled affirmatively and limited
the fees to the Rule 82 amount. The defendant sought full
fees.
Senator Rieger noted that a review of judgment awards
indicates that private individuals who sue the state "get
pennies" compared to agencies in the business of suing the
state. The pattern in award of attorney fees appears
backward. Mrs. Ritchie suggested that greater fees indicate
greater complexity and substantially more attorney time.
CSED cases tend to be single issue. Mrs. Ritchie stressed
that awards depend upon a number of factors. The department
consistently attempts to reduce awards as much as possible
and requires opposing parties to justify attorney fees.
Senator Zharoff inquired regarding the effect of not paying
judgments. Mrs. Ritchie said she was not aware of any
judgments against the state that have not been paid.
Referencing the judgment for Alaska Legal Services, Mrs.
Ritchie explained that the agency could be awarded attorney
fees just as any private lawyer or law firm. That is a
separate matter from the Dept. of Community and Regional
Affairs grant to the agency.
Ms. Otto suggested that failure to pay court judgments would
trigger more litigation, place the state in contempt, and
lead to additional liability for attorney fees for
litigation of non-payment of fees, plus interest. Senator
Randy Phillips asked if the court has the power to force the
Legislature to appropriate funding. Does the court have the
power of appropriation? Ms. Otto said the issue has been
researched within the context of Cleary fines. She declined
to answer the question "in this setting." Co-chairman
Halford remarked that the question represents a
constitutional standoff. He cited incidences wherein courts
have used mandamus to force appropriations. The other side
of the coin is the fact that the Legislature has the court's
budget. He noted that whether justified or not, judgments
against the state have eventually been paid. He remarked
that the one that "stands out as a little bit ridicules is
the fine . . . to the general fund of the state for the
Cleary case because it's an absolute circle."
Senator Zharoff asked the department to provide information
on original requests versus the amount of each negotiated
judgment.
Referencing the $1,285,000.00 for Toksook Bay v. State, Co-
chairman Halford explained that the request from last year
totals approximately the same as this year. However, last
year, the feeling was that the state was walking into a
precedent that would hold the state liable under strict
liability for things it had no control over and that
occurred under both federal ownership and state ownership.
That was not the intent of strict liability law. The
Legislature decided to deal with the issue only if there was
a solution to the strict liability question. Co-chairman
Halford said he would support the request if a House
amendment to SB 69 becomes law, because new language would
limit strict liability as it applies to the state.
Co-chairman Frank next referenced the $225.0 judgment
against the Dept. of Transportation and Public Facilities
for wrongful termination at the Anchorage International
Airport.
END: SFC-96, #51, Side 1
BEGIN: SFC-96, #51, Side 2
Mrs. Ritchie explained that the Alaska Police Standards
Council denied certification to two long-term airport safety
officers when new legislation required that the officers
have certification. The superior court found that the
council abused its discretion in denying certification and
directed that the officers be certified. In the interim,
DOTPF terminated the employees because they lacked
certification. The judgment compensates the two officers
for lost pay. The case involved application of new
standards to existing long-term employees. The court held
it was unfair to terminate employees who had proven their
ability to do the job. The case also involved a dispute
between the council, which regulates and certifies certain
state employees, and the department that employs them.
DOTPF had no alternative but to terminate the officers when
the council denied certification, even if the department
disagreed with the denial.
Co-chairman Frank asked why the council was not sued and the
officers allowed to keep their jobs pending outcome of the
case. He voiced frustration over repeated instances in
which employees have been terminated and the state must
provide back pay for the time cases progress through the
courts. He suggested that employees be kept on the job
pending a determination. Ms. Otto stressed that the statute
contains "an absolute prohibition on being employed in that
capacity unless you are certified by the Alaska Police
Standards Council." Once certification was denied, DOTPF
would have been breaking the law in continuing to employ the
officers. Co-chairman Frank noted that the officers'
individual rights were violated by wrongful termination.
Ms. Otto noted that future problems could be avoided if
legislation effecting new standards contains grandfathering
provisions. That was discussed when the new standards
legislation was pending, but the Legislature chose not to
include the provision.
Further discussion of vision requirements giving rise to
denial of certification followed. The court reached the
conclusion that because the officers had been employed and
carried weapons for many years, the regulation, as it
applied to them, was not valid. Further discussion of
regulatory standards of the council followed. Co-chairman
Frank asked that the Dept. of Law determine the number of
employees terminated each year, how many terminations are
appealed through the grievance process, and how many go to
court. Mrs. Ritchie remarked that the numbers are
significant, and she agreed to provide statistics.
RECESS
At this time, Co-chairman Frank announced that he would
recess review of supplemental requests until 8:00 a.m.,
Friday, March 29, 1996, at which time discussion would
commence with Berger v. State. The meeting was recessed at
9:05 a.m.
RECONVENE
Co-chairman Halford reconvened the meeting at approximately
9:13 a.m. and announced that the committee would consider
legislation in the order listed on the agenda.
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