Legislature(2005 - 2006)CAPITOL 120
05/06/2005 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB135 | |
| SB130 | |
| SB132 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| = | SB 135 | ||
| = | SB 132 | ||
| = | SB 130 | ||
| + | TELECONFERENCED |
SB 132 - HUMAN RIGHTS COMMISSION CHAIR McGUIRE announced that the final order of business would be SENATE BILL NO. 132(efd fld), "An Act relating to complaints filed with, investigations, hearings, and orders of, and the interest rate on awards of the State Commission for Human Rights; and making conforming amendments." [Before the committee was HCS SB 132(STA).] 2:16:35 PM SCOTT J, NORDSTRAND, Deputy Attorney General, Civil Division, Office of the Attorney General, Department of Law (DOL), presented SB 132 on behalf of the administration. He said that the bill is designed to enhance the effectiveness of the Alaska State Commission for Human Rights ("commission") by allowing the commission to evaluate complaints of unlawful discrimination and allocate its resources to prosecuting those complaints that will best serve the commission's goal of eliminating unlawful discrimination. The bill will improve the commission's procedures, will enhance the fairness of commission procedures, will clarify the remedies that the commission may award, and will address some housekeeping matters. MR. NORDSTRAND relayed that in general, SB 132 is designed to address the lack of prosecutorial discretion that the commission now suffers from based on an interpretation of the Alaska Supreme Court case, Department of Fish & Game v. Meyer, which said that a finding of substantial evidence requires the commission to pursue further procedures. The bill adds statutory provisions allowing the commission to exercise prosecutorial discretion and dismiss claims that wouldn't be in the best interest of using state resources. He remarked that procedural aspects are included in the bill, clarifying for participants what they are being charged with and why, and a summary judgment procedure has been added as well. Furthermore, the bill lists the possible remedies available to the commission to alleviate discrimination, though because it is not an all- inclusive list, the statement that any appropriate relief may be awarded has been left in existing statute. 2:19:31 PM REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 1, which read [original punctuation provided]: Page 2, line 27: Delete "The commission, in its" Page 2, line 28, through page 3, line 1: Delete all material. Page 3, line 4: Delete ", in the executive director's discretion," Page 3, following line 15: Insert the following new material: "(c) The commission, in its discretion, may, but is not required to, review the executive director's order of dismissal under (a) or (b) of this section and may affirm the order, remand the complaint for further investigation, or, if the commission concludes that substantial evidence supports the complaint of an unlawful discriminatory practice, refer the complaint for conference, conciliation, and persuasion as provided in AS 18.80.110, or for hearing." Page 3, line 16: Delete "(c)" Insert "(d)" Page 3, line 22: Delete ", in the executive director's discretion," REPRESENTATIVE ANDERSON objected for the purpose of discussion. MR. NORDSTRAND, in response to comments and questions by Representative Gruenberg, explained that Amendment 1 changes the language currently in Section 4 such that the proposed provision allowing the commission to review an executive director's order of dismissal would apply to both subsection (a) and subsection (b) of proposed AS 18.80.112 - currently that proposed provision only applies to subsection (a) - and also deletes language that suggests that the discretion to review an executive director's order of dismissal lies solely with the executive director. REPRESENTATIVE ANDERSON removed his objection. CHAIR McGUIRE asked whether there were further objections to Amendment 1. There being none, Amendment 1 was adopted. 2:23:29 PM CHAIR McGUIRE, after ascertaining that no one else wished to testify, closed public testimony on SB 132. REPRESENTATIVE GRUENBERG mentioned that he and Mr. Nordstrand had discussed another possible amendment. Referring to the language on page 3, line 31 - which stipulates that a person [charged in an accusation] may file a written answer and may appear at the hearing, with or without counsel and submit evidence - he said he wants to be very clear that current law does not provide free counsel. He suggested that the aforementioned language should include the phrase, "at their own expense". MR. NORDSTRAND, after clarifying that the aforementioned language pertains to those charged in an accusation, he pointed out that the commission retains the discretion to award reasonable expenses, including attorney fees, as it deems appropriate. REPRESENTATIVE GRUENBERG remarked, then, that he would not offer an amendment to change the aforementioned language. REPRESENTATIVE GARA opined that SB 132 has substantial problems. For example, the bill refers to "discriminatory practice", and therefore his concern, he relayed, is that such language will stipulate that the behavior must be institutionalized and repetitive before anyone can seek relief. He then indicated that he would be offering an amendment to change the term "discriminatory practice" to "discriminatory conduct". MR. NORDSTRAND explained that the DOL is merely trying to conform the language in the provisions being changed by the bill to the language currently in AS 18.80.220, for example, which pertains to unlawful employment "practices." The use of the term "discriminatory practice" is not meant to change the intent of the law, but rather to merely provide for consistency. He offered his understanding that a single act of discrimination would certainly still constitute behavior sufficient to give rise to a discrimination claim. REPRESENTATIVE GARA indicated that he is still concerned about this issue, that the term "practice" will be interpreted to mean only a course of conduct. He asked Mr. Nordstrand whether he would be amenable to a conceptual amendment which would stipulate that a single occurrence can constitute a practice under SB 132. MR. NORDSTRAND said he doesn't know where such a conceptual amendment would go, and offered his belief that [current] statute already describes [single occurrences] as practices. He elaborated: What is being described here as being subject of the complaint, it has to refer to violating the rest of the statute, and the rest of the statute describes these things as unlawful employment and discrimination practices. So I think it would make it ... less clear. ... "Unlawful financing practice" - AS 18.80.250; "Unlawful practices in the sale or rental of real property" - that's AS 18.80.240; Unlawful practices in places of public accommodation" - AS 18.80.230: I think it makes sense for the violation to track what the actual description of the discriminatory practices are, and that's all we were trying to do. 2:28:47 PM REPRESENTATIVE GARA, after relaying his understanding of Mr. Nordstrand's point, made a motion to adopt Conceptual Amendment 2, to define, somewhere in statute, "discriminatory practice" as including a practice that involves one occurrence of that conduct. CHAIR McGUIRE suggested that Conceptual Amendment 2 should say, "one or more". REPRESENTATIVE GARA concurred. [Although no formal motion to amend Conceptual Amendment 2 was made, Conceptual Amendment 2 was treated as amended. REPRESENTATIVE ANDERSON objected to the motion to adopt Conceptual Amendment 2 [as amended]. He opined that such a definition change ought to be part of a different bill, and offered his interpretation of Mr. Nordstrand's comments. MR. NORDSTRAND opined that there is a difference between "conduct" and "practice" in the sense that conduct is essentially evidence of a practice, and offered his belief that the statute says one cannot engage in a practice that is illegal under the statute. It's important, he added, to provide consequences for what the statute says is an unlawful practice, and the conduct - whether it be one act or several - gives rise to the unlawful practice itself. REPRESENTATIVE ANDERSON surmised, then, that Mr. Nordstrand is saying that "practice" encapsulates "conduct", and thus use of the word "practice" will make the bill broader and better. 2:31:46 PM MR. NORDSTRAND concurred. REPRESENTATIVE DAHLSTROM asked whether adoption of Conceptual Amendment 2 [as amended] would weaken the bill. If not, she surmised, then the intent of the bill would remain while members' concerns would also be addressed. MR. NORDSTRAND said he would be very concerned about trying to define the word "conduct" in a specific way. For example discrimination might not be displayed as an action, it might instead be displayed as a failure to act. Therefore, the best default might perhaps be to have all the statutes use only the word "conduct", he remarked, but pointed out that such a word is ambiguous and the DOL had wanted to avoid that. Furthermore, if the word "conduct" is used, then each of the statutes pertaining to discrimination would have to be rewritten such that they each specifically list what constitutes the unlawful behavior and whether committing that behavior only once is sufficient for violation. He elaborated: The statute isn't written in terms of actions. It's not written in terms of, "one act of something is unlawful." It says it's unlawful to discriminate. That means if you acted in such a way, for these improper motives -- and it's really about motives, in a sense, not about the particular act, and that's what makes it hard to define that way. I think [it] could make a difference. REPRESENTATIVE ANDERSON concurred. 2:34:38 PM REPRESENTATIVE GARA withdrew Conceptual Amendment 2 [as amended] but noted that when words in the law are changed, courts could construe the act of changing those words to mean that the legislature intends for the law to have a different meaning than it used to. He said he is comfortable with the meaning currently being used, and is a little uncomfortable with the meaning that could be construed via use of the new term. He expressed a desire for the law to be made clearer. REPRESENTATIVE GRUENBERG mentioned that he'd served as a hearing officer on a number of State Commission for Human Rights cases several years ago, and noted that there is a whole body of common law construing current law with regard to the terms "practice" and "conduct", adding that his preference would be to be very careful about changing or upsetting what he referred to as a very carefully crafted area of law. 2:36:57 PM REPRESENTATIVE GARA referred to page 2, lines 7-9, which stipulates that a complaint must be filed within 180 days. He asked what the current statute of limitations is for the [commission] to bring an action. MR. NORDSTRAND replied that it, too, is 180 days, though it is a regulatory limitation rather than a statutory limitation. REPRESENTATIVE GARA said he is a little uncomfortable saying that a person has to complain that quickly in order to get help from the State of Alaska. MR. NORDSTRAND said that timeframe is consistent with federal law and doesn't preclude an aggrieved person from bringing a human rights Act claim in court for up to two years, the actual statute of limitations; rather, the timeframe of 180 days merely allows the [commission] to set a reasonable period of time after the discriminatory act for a person to come to the [commission] for help. He said the DOL felt it was not appropriate for a statute of limitations to be in a regulation, and therefore thought any timeframe limitation should become part of statute. REPRESENTATIVE GARA made a motion to adopt Amendment 3, to change - in Section 2, proposed subsection (c) - "180" days to "one year". REPRESENTATIVE ANDERSON objected. He opined that a half a year is a sufficient timeframe. REPRESENTATIVE COGHILL asked whether there have been any situations wherein the 180-day timeframe has not been sufficient. MR. NORDSTRAND said is possible that someone may have missed the timeframe, but suggested that it makes sense for the commission to have the same statute of limitations regarding agency discrimination claims as the U.S. Equal Employment Opportunity Commission (EEOC), particularly since the two have "sharing agreements." [HCS SB 132(STA), as amended, was held over with the motion to adopt Amendment 3 left pending.]
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