Legislature(2017 - 2018)BELTZ 105 (TSBldg)
03/29/2017 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB5 | |
| Confirmation Hearings | |
| SB29 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | SB 15 | TELECONFERENCED | |
| *+ | SB 29 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 5 | TELECONFERENCED | |
SB 29-REPEAL WORKERS' COMP APPEALS COMMISSION
2:14:07 PM
CHAIR COGHILL announced the consideration of SB 29. He welcomed
Commissioner Drygas and Director Marx.
HEIDI DRYGAS, Commissioner, Department of Labor and Workforce
Development (DOLWD), Juneau, Alaska, stated that SB 29 will
repeal the Workers' Compensation Appeals Commission and return
the appeals process to the courts. She explained that the
commission was created to streamline the appeals process and
provide expertise in handling workers' compensation cases.
However, since the commission was created in 2005, 50 percent of
its decisions on the merits have been reversed by the Alaska
Supreme Court. This high reversal rate emphasizes the fact that
the commission is ineffective. The commission is essentially an
appellate court, but it is not composed of a panel of lawyers.
Rather, the lay commissioners have no legal training, so it
falls to the commission's chair to resolve the legal issues and
write the commission's decisions. Therefore, the commission's
decisions are the work of just one person, not the work of a
panel with legal expertise in workers' compensation. This is a
further departure from the intent of the original legislation.
Also, the chair is either a former member of the plaintiff's bar
or the defense bar, which raises concerns of bias from both
sides.
COMMISSIONER DRYGAS reported that eliminating the Workers'
Compensation Appeals Commission is anticipated to save the
department over $220,000 for the remainder of FY18, and over
$440,000 in subsequent years. She emphasized that the impact on
the public will be minimal. The Court System, which regularly
hears administrative appeals, will see an increase of about 20-
30 cases a year. She understands that the Court System can
absorb the volume, which is reflected in the zero fiscal note.
She concluded, "The commission is a specialty tribunal we can no
longer afford in this state's fiscal climate."
2:17:46 PM
MARIE MARX, Director, Workers' Compensation Division, Department
of Labor and Workforce Development (DOLWD) Juneau, Alaska,
reviewed the following sectional analysis for SB 29:
Section 1 amends AS 23.30.005, by adding a new
subsection, clarifying that unless reversed or
modified by a court, decisions of the former
commission have the force of legal precedent. It also
specifies that the Workers' Compensation Board will be
the entity responsible for making sure those decisions
are available to the public.
Section 2 amends AS 23.30.107(b), by removing
reference to the appeals commission in existing
statutes.
Section 3 amends AS 23.30.108(d), by removing
reference to the appeals commission in existing
statutes.
Section 4 amends AS 23.30.108(e), by removing
reference to the appeals commission in existing
statutes.
Section 5 amends AS 23.30, by adding a new section,
clarifying when a board order becomes effective and is
final, when it may be stayed, and clarifying when the
board's findings are conclusive and binding on a
reviewing court, and when the director may intervene
in an appeal or petition for review.
Section 6 amends AS 23.30.155, by adding a new
subsection changing a statutory reference from the
appeals commission to the superior court.
Section 7 amends AS 39.50.200(b)(31), by removing
reference to the appeals commission.
Section 8 amends the uncodified law of the State of
Alaska, by amending Rule 204(c)(2) Alaska Rules of
Appellate Procedure, to address bonds for appeal
purposes.
Section 9 repeals Rules 201.1, 401.1, and 501.1,
Alaska Rules of Appellate Procedure.
Section 10 repeals AS [23.30.007,] 23.30.008,
23.30.009, 23.30.125, 23.30.127, 23.30.128, 23.30.129,
23.30.155(f), 23.30.395(10); AS 39.25.110(40); AS
44.64.020(a)(12), and 44.64.020(a)(13). These are
statutes that deal with commission proceedings, that
reference the commission, that deal with commission
appointments, and appeals to the commission.
Section 11 amends the uncodified law of the State of
Alaska, by adding a new section relating to indirect
court rule amendments.
Section 12 amends the uncodified law of the State of
Alaska, by adding conditional effect language that the
Act takes effect only if secs. 8, 9 and 11 receive the
two-thirds majority vote of each house required by
art. IV, sec. 15 of the Alaska Constitution.
Section 13 amends the uncodified law of the State of
Alaska, by adding a new section relating to
applicability of amendments to proceedings pending
before the Commission.
Section 14 amends the uncodified law of the State of
Alaska, by adding transitional language clarifying
proceedings seeking review of a board decision and
order that have not yet been filed before the
Commission, must be filed in the superior court on or
after June 1, 2017 Any appeals not completed by the
appeals commission on or before December 1, 2017 will
be transferred to the superior court on December 2,
2017, and clarifying procedures for requests for
reconsideration during the transition period.
Section 15 amends the uncodified law of the State of
Alaska, by adding transitional language.
Section 16 clarifies when the Act takes effect.
2:21:31 PM
SENATOR COSTELLO asked for an explanation of rules 602(c) and
(h), Alaska Rules of Appellate Procedure. Those are repealed in
the title of the House companion bill, but not in SB 29.
MS. MARX deferred the question to Kimber Rodgers with the
Department of Law.
2:22:38 PM
KIMBER RODGERS, Assistant Attorney General, Civil Division,
Labor and State Affairs Section, Department of Law, Anchorage,
Alaska, explained that those rules relate to notice of appeal
and the parties to the appeal. She said they realized they were
indirectly amending those rules because the bill permits the
director of the Division of Workers' Compensation to file an
appeal for review in the superior court or to intervene in an
appeal or petition for review in the superior court.
SENATOR COSTELLO summarized that the Senate 29 does not
reference those rules in the title, but it's implied in the
bill.
MS. RODGERS said that's correct; it's in the bill so it needed
to be referenced in the title. The House version also added
language explaining the indirect amendment.
CHAIR COGHILL suggested Nancy Meade supplement the explanation.
COMMISSIONER DRYGAS said she understands that the changes in the
House version were at the request of the Court System.
2:25:49 PM
CHAIR COGHILL asked if Section 1 establishes that past decisions
of the Workers' Compensation Appeals Commission have legal
precedent.
MS. MARX explained that Workers' Compensation Appeals Commission
appeals currently have the force of legal precedent. Section 1
ensures that decisions that have occurred remain precedential
and binding on the Alaska Workers' Compensation Board.
CHAIR COGHILL asked if the decisions the court makes would also
have the force of legal precedent.
MS. MARX replied superior court decisions would not have
precedential effect on the Alaska Workers' Compensation Board
decisions. She deferred to Ms. Meade to talk about the
precedential value of superior court decisions.
CHAIR COGHILL asked if the precedent is nullified if the
superior court overturns a decision of the commission.
MS. MARX explained that the appeals commission decisions would
not be appealed to the superior court so that court would not
have the opportunity to reverse decisions of the appeals
commission. Should the bill pass, appeals of Workers'
Compensation Board decisions would go directly to the superior
court.
COMMISSIONER DRYGAS added that if the commission is repealed,
board decisions that are appealed would go straight to superior
court and those decisions would not have precedential value on
the board. If a case is appealed from the superior court to the
Alaska Supreme Court, that decision would have precedential
value.
2:29:37 PM
SENATOR MEYER asked who might oppose the bill.
COMMISSIONER DRYGAS said she anticipates there will be testimony
from both sides. However, the testimony in favor of keeping the
commission won't address the cost of keeping the commission. She
related that when she started as commissioner two years ago she
was asked to look at the statutes and identify what was not
working that the legislature could undue. The Workers'
Compensation Appeals Commission was identified during that
process. "It didn't live up to its expectations."
SENATOR MEYER observed that this will not only save the state
money but also provide faster resolution of appeals.
COMMISSIONER DRYGAS replied it may not be faster but it will be
just as fair. The people she has talked to from the plaintiffs'
bar are ready to take a little delay in exchange for returning
to the judicial process. The current process with the board and
the commission is a double administrative layer. That has always
been somewhat a concern.
SENATOR MEYER asked if she said that a large percentage of the
decisions were appealed to the Supreme Court.
COMMISSIONER DRYGAS clarified that just a limited number of
cases are appealed to the Supreme Court after they go through
the commission process. She noted that the case records show
that there has been a significant decline in the number of cases
that have been appealed from the board to the commission. The
anecdotal evidence is that individuals thought they would not
get a fair shake, so they settled short of appealing to the
commission.
SENATOR MEYER noted that Ms. Meade indicated in a previous
committee that this change would not have a fiscal impact on the
Court System.
CHAIR COGHILL asked if switching to the court wouldn't have a
cost factor for the worker and employer.
2:37:02 PM
COMMISSIONER DRYGAS replied there is a cost of doing business in
the Court System that every citizen faces when they appeal a
case. Filing fees and associated costs probably would not
prevent a litigant from appealing a case and she didn't believe
attorney fees under either process would differ significantly.
CHAIR COGHILL asked Ms. Meade to discuss the Court System
perspective.
2:39:05 PM
NANCY MEADE, General Counsel and Deputy Administrative Director,
Administrative Staff, Alaska Court System, advised that there is
a significant difference between SB 29 and the amended House
bill. The House committee substitute reflects work she and the
department did to ensure that the procedures would be the most
effective and efficient possible.
She said the differences between the two bills are primarily in
Section 5. They are mostly procedural and probably completely
noncontroversial. For example, the amended House bill ensures
that the procedure in the statute about when a decision is final
and can be appealed aligns with the procedure in the court rules
for when cases can be appealed from administrative agencies. The
House committee substitute reflects procedural and technical
differences that are important to the Court System to ensure a
smooth process.
MS. MEADE said the court can absorb these cases without hiring
another judge or additional staff, if that is the choice of the
legislature. She estimated that the court would get about 33 new
cases a year for the superior court judges statewide to handle.
Most of the cases would occur in Anchorage where there are 11
superior court judges. She advised that the process probably
would not be any faster. She estimated that the average time for
the judge to issue a decision might be up to a year.
She explained that it was at her suggestion that the House
committee substitute amends Rules 602(c) and (h), Alaska Rules
of Appellate Procedure. These were overlooked in the original
versions of the bill. "Those are added back in and the Rules
attorney will basically cross out appeals commission every time
it appears in the appellate rules because they were added to the
appellate rules in 2005 when the change occurred."
2:44:16 PM
CHAIR COGHILL asked if preemption allows a litigant to request a
different judge, whereas that option doesn't exist with the
commission.
MS. MEADE said yes. She explained that in any court case each
party has one chance to bump the assigned judge. There is a
five-day time limit for doing so, which would not be a
significant delay in the resolution of the case.
2:46:50 PM
CHAIR COGHILL held SB 29 in committee for further review.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Bahnke - Judicial Conduct.pdf |
SJUD 3/29/2017 1:30:00 PM |
|
| Jabaay - Judicial Conduct.pdf |
SJUD 3/29/2017 1:30:00 PM |
|
| McClintock - Judicial Conduct.pdf |
SJUD 3/29/2017 1:30:00 PM |
|
| SB 29 - Sectional Analysis.pdf |
SJUD 3/29/2017 1:30:00 PM |
SB 29 |
| SB 29 - Sponsor Statement.pdf |
SJUD 3/29/2017 1:30:00 PM |
SB 29 |