Legislature(1997 - 1998)
02/10/1997 01:02 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 120 - STATE IMMUNITY FROM SUIT IN FED COURT Number 100 CHAIRMAN JOE GREEN advised members they would first consider HB 120, "An Act relating to the power of the attorney general to waive immunity from suit in federal court; and providing for an effective date." CHAIRMAN GREEN invited Representative Hudson, prime sponsor, to address the committee. REPRESENTATIVE BILL HUDSON, Prime Sponsor of HB 120, expressed that it had just recently come known that legislative action was necessary in order to protect a broader interest that the state had. REPRESENTATIVE HUDSON explained that the Eleventh Amendment of the U.S. Constitution prohibits suits against states in federal court for damages brought by citizens of the state. He pointed out that recent decisions of the United States District Court for the District of Alaska had prohibited the attorney general from waiving the state's Eleventh Amendment immunity from suit without express authority from the legislature. Representative Hudson stated that although the attorney general had statutory authority to represent the state in all civil actions in which the state was a party, there was no specific legislative authority to waive the Eleventh Amendment immunity where it was in the state's best interest to do so. Representative Eric Croft arrived. REPRESENTATIVE HUDSON advised members that from time to time, there were cases where it would be procedurally advantageous for the state to waive that immunity and have a case heard in federal court. HB 120 addressed one case the state would like to be a party of, and Representative Hudson stated that a proposed amendment would include one other case that the state felt it should become a party to. REPRESENTATIVE HUDSON advised members that the first case was addressed in the original language of HB 120. The United States was being sued by plaintiffs in Alaska to seek judgment that the United States owns the tidelands in the Tongass National Forest. Representative Hudson reiterated the need to waive the Eleventh Amendment immunity clause in order for the state to become party to that suit to determine the state's title to the lands in dispute. Representative Hudson explained that the only way the state could litigate title to those tidelands was by joining as a defendant in the case. The Quite Title Act requires that the United States claim an interest in the disputed property, and in this particular case, the United States had carefully avoided taking any formal position as to whether it believes it, or the state, has title to the tidelands in question. He stated that by joining as a defendant, the state would secure the opportunity to establish title to lands the state believes it owns. Representative Norman Rokeberg arrived. REPRESENTATIVE HUDSON advised members that the second case involved tort claims where the state and the federal government were both, potentially, responsible. Representative Hudson explained that it would be necessary to waive the state's Eleventh Amendment immunity in order to pursue that issue in federal court as well. He pointed out that if the state was unable to waive the Eleventh Amendment and appear and defend in federal court, the state would lose its ability to have a fair allocation of fault among all responsible parties. Number 439 REPRESENTATIVE HUDSON concluded pointing out that the purpose of HB 120 was to ask the state legislature to allow the attorney general to give the state's consent to appear in federal court as a defendant in a case that involves the state's title to submerged lands. The proposed amendment would further enable the attorney general to waive the Eleventh Amendment immunity, and litigate in federal court, in cases where the state seeks to allocate fault to the federal government, or a federal employee under AS 09.17.080. Number 586 CHAIRMAN GREEN asked if the proposed legislation would create the potential for opening the state up to civil litigation, other than the two intended cases, during the time period the Eleventh Amendment immunity is granted. JOANNE GRACE, Assistant Attorney General, Natural Resources Section, Civil Division, Department of Law, testified via teleconference from Anchorage. In response to Chairman Green's question, Ms. Grace felt the legislature would be granting the attorney general the authority to consider entering in on a case by case basis, but only in a couple of narrow circumstances. She pointed out that the authority provided would only be in effect until the sunset clause went into effect. Ms. Grace went on to say that she did not think it would induce plaintiffs to sue the state in federal court that they otherwise would not have, because the circumstances were so unusual. Number 860 REPRESENTATIVE ETHAN BERKOWITZ asked if there was a reason for not specifying the names of the two individual cases in the proposed legislation. He felt that would appear to be the most limited way to address the issue. MS. GRACE could not respond directly to that question; however, did not feel it would make a difference because the intent was for those two specific cases. If Representative Berkowitz would be more comfortable with language that would specifically name the two cases at issue, Ms. Grace did not feel the Attorney General's Office would have a problem with doing that. The submerged lands case was Peratrovich v. United States, A92-734 CV (HRH). REPRESENTATIVE ERIC CROFT stated that it was his understanding that it involved a jurisdictional issue, and the legislature would not be changing the law that would be applied, but simply waiving the state's right to object to appearing in a particular forum. MS. GRACE stated that was exactly correct. She went on to explain that the federal court did not have jurisdiction to hear a case brought by a citizen against the state unless the state waives its Eleventh Amendment immunity. REPRESENTATIVE CROFT expressed that the state would be applying the same substantive legal principles, whether federal or state, or a combination, to the case after immunity is waived than they would have before. MS. GRACE stated that it was simply a procedural issue, but if the Eleventh Amendment immunity were not waived, there would not be a case. REPRESENTATIVE CROFT stated that with that in mind, he would not share the concern expressed by Representative Berkowitz because it appeared to be a tactical concern that the attorney general was perfectly able to handle, as to whether he wants to appear in one court or another. Number 1095 REPRESENTATIVE BRIAN PORTER referenced lines 8 and 9, "The time limitation on the attorney general's power to waive the state's immunity under this subsection does not affect such a waiver given before January 1, 1999." He noted that through research, it was his understanding that what was being proposed was that the waiver, on the two specific cases at issue, would remain in effect if litigation exceeded the date of January 1, 1999. MS. GRACE advised members that would be correct. REPRESENTATIVE PORTER asked Ms. Grace if there was any reason why that language could not be amended to read more clearly. Ms. Grace stated that any language the committee felt would make the statement more clear would be fine with the Attorney General's Office. REPRESENTATIVE CON BUNDE asked if the Peratrovich case related in any way to the Dinkum Sands case. MS. GRACE advised members that the Peratrovich case would involve some of the very same issues involved in the Dinkum Sands case, as well as the PL-082 case. She explained that those were ongoing disputes between the State of Alaska and the United States as to whether particular reservations that the federal government created before statehood defeated the state's equal footing doctrine interests in those submerged lands. MS. GRACE stated that in the Dinkum Sands case the pre-statehood reservations were the National Petroleum Reserve in Alaska (NPRA), and the Alaska National Wildlife Refuge (ANWR), whereas the Peratrovich case involved the Tongass National Forest. The PL-082 case, a reservation in Northern Alaska, was also in dispute with the United States relating to pre-statehood reservations. Ms. Grace stated that between those cases, there were general legal issues that were common, so that anytime the state litigates one of those cases it would set a precedent for the other cases that are unresolved. CHAIRMAN GREEN stated that it was his understanding that there was not a problem between the state and the federal government regarding Dinkum Sands; that it was whether or not it existed as an island from which to draw a three-mile arc which could create an enclave. MS. GRACE expressed that she may have used Dinkum Sands somewhat loosely, pointing out that that case was actually United States v. State of Alaska, that involved four separate issues, of which one was the Dinkum Sands issue. CHAIRMAN GREEN referenced the language Representative Porter felt could be clarified and asked Ms. Grace if she could provide language for the committee's consideration. MS. GRACE advised members she would give it some thought, adding that the intent was to preclude the United States from arguing that the attorney general would lose his authority of the waiver in those particular cases once he exercised his authority. REPRESENTATIVE JEANNETTE JAMES moved to adopt Amendment 1, HB 120, page 1, line 6, following the word "lands," insert, or in any case in which the state seeks to allocate fault to the federal government or a federal employee under AS 09.17.080,. There being no objection, Amendment 1 was adopted unanimously. REPRESENTATIVE CROFT noted that the amendment had nothing to do with the Peratrovich case, and asked if there was a time limit involved with the other cases as referenced in the amendment. SUSAN COX, Assistant Attorney General, Special Litigation Section, Civil Division, Department of Law, advised members that the posture of the Smith case mentioned in the backup documentation for the amendment, was such that a motion to add federal defendants was being filed this date, 02/11/97, in State Superior Court in Bethel. She advised members that they expected, once the motion is served, that the federal defendants and a federal contractor would seek to have the case removed to federal court where the state would then be faced with the Peratrovich case. Ms. Cox stated that the department anticipated that within several weeks to a month they would be looking at a situation in which the federal court would be wondering whether it has jurisdiction over the claims against the state. CHAIRMAN GREEN advised members HB 120 would be considered the following day at noon in order to clarify the language on lines 8 and 9 of the original bill. REPRESENTATIVE NORMAN ROKEBERG pointed out that the legislature waived its rules in order to consider HB 120 in an expedited manner and felt the Attorney General's Office should be aware of that. CHAIRMAN GREEN advised members they would next consider the appointment of Barbara Brink as the state's public defender. REPRESENTATIVE BERKOWITZ declared a possible conflict of interest because he has been a friend of Ms. Brink's for some time. CONFIRMATION HEARING BARBARA BRINK, ALASKA PUBLIC DEFENDER Number 1740 BARBARA BRINK, Acting Public Defender, Department of Administration, advised members she was seeking confirmation of that position. Ms. Brink expressed that she had the experience, the desire and the skills to do a good job for the citizens of Alaska. MS. BRINK advised members that she had been an assistant public defender since the early 1980s, and was appointed Deputy Director of the Public Defender Agency by the State Public Defender at that time, John Salemi, in 1988. MS. BRINK informed members that the agency would be submitting a capital project request for the purchase of legal research tools; CD Rom, Brief Banks, Motion Banks, computer hardware and software to allow communication with lawyers throughout the state and country. CHAIRMAN GREEN noted that Ms. Brink would be making a transition from actual trial work to administrative work and asked how that transition might affect her. Number 2020 MS. BRINK stated that over the past eight years she had had the opportunity to be involved in both case-work and administrative responsibilities. She did not know if she would be able to continue to represent clients; however, she felt that was a valuable tool to keep abreast of what was occurring in the trenches, and to have an understanding of what the courts, the clients and her staff were doing. REPRESENTATIVE JAMES asked Ms. Brink how much money the agency would be requesting in capital funds, and how those funds would be expended. MS. BRINK's response was that they would be requesting approximately $200,000 for purchase of computer hardware for the purpose of networking the agency's rural offices and the next largest offices which range in size from four to six lawyers. Ms. Brink stated that the agency would also like to have Internet capabilities in the Anchorage office. She stated that the four single lawyer offices would be networked to the entire system. Ms. Brink noted that the Department of Administration supported the capital fund request and were considering having a local network person, from the department, assist in the planning stages and implementation of the project. REPRESENTATIVE BUNDE addressed the rate of recidivism among the clients represented by the public defenders office and asked Ms. Brink if she had any suggestion on how to reduce that rate. He also noted the concern of victim's rights not being held on an equal level with criminal rights, and if Ms. Brink might respond to that. MS. BRINK felt that a lot of the proposals she had heard among different committees sounded very promising. She stated that the idea of having more localized community effort and input, not only regarding punishment, but dispute resolutions was an idea whose time had definitely come. Ms. Brink pointed out that that concept had proven to be workable in the Anchorage and Mat-Su youth courts. MS. BRINK, with respect to victim's rights, expressed that the state had made strides in having victims feel and be more a part of the adjudication process. She felt that as the trial court judge is given the ability to waive those competing concerns and assess which interest must take priority at a given moment, that they would continue to have a fair system. TAPE 97-12, SIDE B Number 000 REPRESENTATIVE ROKEBERG referenced a document submitted in the backup from John Holmes, Esquire and asked if Ms. Brink would provide comments on Mr. Holmes opposition to her appointment as State Public Defender. MS. BRINK advised members that John Holmes was a former assistant public defender who worked in the Ketchikan and Kotzebue office. She felt the letter reflected a deep philosophy of his, of which the two of them had had long conversations about. Ms. Brink pointed out that Mr. Holmes felt that the best way to represent a defendant in the criminal justice system was to take the anarchist approach. She explained that he would concede nothing; file every motion under the sun, and be oppositional at every turn. Ms. Brink noted that Mr. Holmes felt that that was the best method of serving his clients. Ms. Brink agreed that that was one approach; however, not one she had adopted. REPRESENTATIVE ROKEBERG referenced a letter of recommendation from what appeared to be a colleague of Ms. Brink's and asked if she felt it was appropriate to write that letter on the agency's letterhead. MS. BRINK felt it was not appropriate to use public defender stationery for the purpose of expressing a personal opinion. REPRESENTATIVE CROFT pointed out that Mr. Holmes appeared to oppose all candidates for the position of State Public Defender. MS. BRINK felt Mr. Holmes' concerns came from the heart, adding that he was a dedicated public defender and he felt his way was the best way to deal with a system he viewed as unfair. Number 465 JOHNNY GRAVES advised members that he believed there was a gender bias against males in the court system, and law enforcement, generally. He also felt the public defenders office and the district attorneys office had too close a relationship, noting that in some cases it appeared they were actually working together against a defendant. Mr. Graves requested the newly appointed public defender to check into those concerns. REPRESENTATIVE PORTER advised members that to him, the appointment of Ms. Brink as the State Public Defender was extremely appropriate, and it was his hope Ms. Brink would maintain her point of view and strong commitment to the charge and function of the public defender's office. REPRESENTATIVE PORTER moved that the Governor's appointment of Barbara Brink as the State Public Defender be moved out of committee and on to the Joint Floor Session for confirmation purposes.
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