Legislature(2015 - 2016)CAPITOL 120
02/20/2015 01:00 PM House JUDICIARY
Note: the audio ![]()
and video ![]()
recordings are distinct records and are obtained from different sources. As such there may be key differences between the two. The audio recordings are captured by our records offices as the official record of the meeting and will have more accurate timestamps. Use the icons to switch between them.
| Audio | Topic |
|---|---|
| Start | |
| HB83 | |
| HB15 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 15 | TELECONFERENCED | |
| += | HB 83 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 79 | TELECONFERENCED | |
HB 83-JUDICIAL COUNCIL: CIVIL LITIGATION INFO
1:06:10 PM
CHAIR LEDOUX announced that the first order of business would be
HOUSE BILL NO. 83 "An Act relating to collecting information
about civil litigation by the Alaska Judicial Council; repealing
Rule 41(a)(3), Alaska Rules of Civil Procedure, and Rules 511(c)
and (e), Alaska Rules of Appellate Procedure; and providing for
an effective date."
1:06:28 PM
The committee took a brief at ease.
CHAIR LEDOUX passed the gavel to Vice Chair Keller for the
hearing on HB 83.
1:06:50 PM
CLARK BICKFORD, Staff, Representative Gabrielle LeDoux, Alaska
State Legislature, offered that the bill repeals a 1997 law
relating to the collection of information regarding civil
litigation by the Alaska Judicial Council, which is a widely
forgotten and ignored practice amongst the legal community. For
instance, he explained, from 2001-2010 only 13 percent of
litigation reports have been filed. He offered that the
majority of the legal community and the Alaska Judicial Council
(AHC) is in favor of this repeal and urged support for the bill.
REPRESENTATIVE CLAMAN asked whether there was a time of greater
compliance.
MR. BICKFORD, in response to Representative Claman, stated there
was more compliance from the legal community at the time of
passage, and gradually that compliance dropped dramatically. He
pointed out that during the above-mentioned nine years only
20,000 of the 177,000 open civil cases were reported.
1:09:23 PM
VICE CHAIR KELLER assumed there was legislative intent for the
original bill and asked for the legislative history.
1:09:50 PM
MR. BICKFORD said the difficulty of lawyers not was unforeseen,
and the AJC does not have resources to [encourage attorneys] to
report every 177,000 cases.
1:10:50 PM
VICE CHAIR KELLER questioned why years have passed without data,
as it is a law.
1:11:11 PM
SUZANNE DIPIETRO, Executive Director, Alaska Judicial System,
Alaska Court System, advised that the law was passed as part of
tort reform legislation in 1997. The items in the legislation
were recommended by the Governor's Advisory Task Force on Civil
Justice Reform and, she noted, this task force was formed after
Governor Tony Knowles vetoed tort reform legislation that had
passed in 1995-1996. The task force made recommendations to
improve the efficiency and fairness of civil litigation. She
remarked that during the course of deliberation it became clear
to the task force there was no data regarding the size and
amount of an average jury verdict, average settlement, or the
percentage of times a plaintiff won versus a defendant. When
the legislation passed, the provision intended that the Alaska
Judicial Council (AJC) would collect information and provide
reports to the legislature so it could monitor the effects of
what it had done in the tort reform legislation, she explained.
The AJC issued three reports, a preliminary report soon after
the statute was passed with some information, and when
information was rolling it issued the 2001 report which included
the amount of the average settlement, and civil litigation data
information. Unfortunately, she related, due to the difficulty
in obtaining data, the AJC reviewed court case files and pulled
the numbers of the cases it should have received reports.
1:13:39 PM
MS. DIPIETRO stated that AJC realized only a fraction of reports
had been filed and sent letters to all of the parties that
should have filed information. Through that laborious process
the AJC was able to achieve approximately a 50 percent response
rate. She described it as the highest response rate it had
received and, she opined, it was enough information to put out a
report that was not misleading. In subsequent years, she noted,
the reporting rate fell and for example, in FY13 court system
data showed 6,113 cases that should have received a settlement
report and received 1,086 reports, only 18 percent. She opined
that it would not have been responsible to publish a report at
18 percent data.
1:16:10 PM
VICE CHAIR KELLER remarked that he just received the 2001 Alaska
Judicial Council report and has not had an opportunity to
evaluate the data. He questioned whether there is a valid
reason to "get rid of" a law wherein compliance is difficult.
MS. DIPIETRO offered that the AJC has a constitutional
responsibility to conduct studies to improve the administration
of justice for the legislature. She advised she is ready to
conduct any study the legislature would like conducted, such as
the civil case data information.
1:17:51 PM
VICE CHAIR KELLER pointed to the implication that the data is
not valuable as the AJC is bringing this bill forward and
supporting it. He opined that his first impression is the
information is very valuable and offered concern that the lack
of information to the legislature is due to non-compliance.
MS. DIPIETRO responded in the affirmative, that the AJC has only
received 18 percent with a lot of information outstanding. "As
a representative of the AJC, I'm not really taking a position
one way or the other," she said, and that she is testifying to
advise of the difficulties, and for the committee to direct the
AJC.
1:19:00 PM
CHAIR LEDOUX clarified that this bill was not put forth through
the Alaska Judicial Council but was suggested to her by a number
of individuals from the private bar. She questioned the amount
of money would be necessary to put teeth into the law requiring
parties to report.
1:19:48 PM
MS. DIPIETRO responded that she could work something up, and
reiterated that the 2001 report required quite a bit of time and
effort in collecting the data.
1:20:17 PM
CHAIR LEDOUX surmised that the AJC went through the records [in
order to prepare the 2001 report] because attorneys were not
submitting the data. She questioned what it would take in the
way of law, or a budget, to enforce the attorneys to submit
data. She also questioned who would be in charge of
[enforcement].
1:20:42 PM
MS. DIPIETRO, in response to Chair LeDoux, stated an issue is
that there is no enforcement mechanism in the law. She
indicated she did not know what an enforcement mechanism could
be, and reiterated that when the AJC sent letters and reminders
it only achieved a 50 percent compliance rate.
1:21:11 PM
VICE CHAIR KELLER questioned whether the AJC would be able to
devise some incentive ideas and actually make money instead of
cost money and indicated there was no enforcement suggestion,
but rather a suggestion to change the law.
1:21:44 PM
REPRESENTATIVE CLAMAN questioned what the data would show
regarding the impact of the tort reform legislation.
MS. DIPIETRO responded that the AJC performed a study of tort
jury verdicts (appendix to the [2001] report) and subsequent to
realizing there were not many large tort jury verdicts, it
shifted its focus to the idea of settlement. She explained that
the hypothesis being that because there are large settlements
paid out by insurance companies, this impacts the cost of
insurance and causes the cost of insurance to go up and the
availability of insurance to go down. The Department of
Commerce, Community, and Economic Development, Division of
Insurance, and the AJC attempted to answer what effect, if any,
the settlement of civil cases is having on the availability and
cost of insurance.
1:23:41 PM
REPRESENTATIVE CLAMAN asked what the studies revealed.
MS. DIPIETRO offered that the Division of Insurance issued a
couple of reports in its effort to comply with that request and
was unable to conclude one way or the other.
REPRESENTATIVE CLAMAN surmised that the theory of tort reform
was that there were jury verdicts in the millions of dollars
driving up insurance costs, but the studies of jury verdicts in
Alaska actually showed there were not huge jury verdicts.
MS. DIPIETRO answered "that is correct, in the memo and the
report, yes."
1:24:26 PM
REPRESENTATIVE CLAMAN further questioned what the research
performed in the years following tort reform revealed regarding
settlements.
MS. DIPIETRO explained that the 2001 report contains the most
complete information on settlements which revealed "not all that
many large settlements."
REPRESENTATIVE CLAMAN asked whether settlements were higher or
lower than jury verdicts.
MS. DIPIETRO responded that she could not recall, and reiterated
that the data was only 50 percent of the cases.
1:25:33 PM
VICE CHAIR KELLER noted that the description of the settlement
or judgment is only one aspect of the information to be
reported. He related that the other things erased, should the
law be repealed, is information regarding the court civil
justice processes, case processing information, and
characteristics of the litigation and parties. For example, he
said he would be interested in how many civil cases were
frivolous, how much court time is taken up in civil litigation,
what percentage, and what the information is based upon without
the [other 50 percent] data.
1:26:31 PM
REPRESENTATIVE GRUENBERG moved to adopt proposed committee
substitute (CS) for HB 83, Version 29-LS0414\H, Wallace, 2/5/15,
as the working document. There being no objection, Version H
was before the committee for discussion.
REPRESENTATIVE GRUENBERG surmised that the enforcement mechanism
could be grounds for discipline such as an individual violating
a civil rule in statute.
MS. DIPIETRO clarified that it would be discipline for the
attorneys through the Alaska Bar Association, but this law also
applies to unrepresented litigants.
1:28:14 PM
REPRESENTATIVE GRUENBERG, in reference to the Mr. Jacobus
supporting letter in each member's packet, said it reads that
this law costs attorney time and that most plaintiff lawyers
work on a contingency basis. The defense bar is generally on an
hourly basis, so the clock would run for the clients in
preparation of these reports, he remarked.
MS. DIPIETRO replied "correct."
1:28:43 PM
REPRESENTATIVE GRUENBERG requested an estimate of the amount of
time spent filling out a report with the hourly rate.
MS. DIPIETRO replied that the form was streamlined to make it as
easy as possible in order to evaluate the minimum amount of
information in the best manner possible. She offered that she
had received an email from a law firm suggesting it was a
burden.
REPRESENTATIVE GRUENBERG pointed out that the bill repeals
certain rules of court. He opined the protocol in matters of
comity ... when dealing with a change of a court rule would be
to request the court system to repeal its rule.
MS. DIPIETRO advised she could not respond to the protocol, but
the rules require an attorney to certify they submitted the
information to the AJC, or promulgated as a way to implement the
statute. She deferred the response to Ms. Nancy Meade.
1:31:08 PM
CHAIR LEDOUX asked whether the law requiring reporting was
enacted after tort reform legislation.
MS. DIPIETRO responded "that is correct."
CHAIR LEDOUX questioned how a study would be performed when the
information is available after [the law was enacted].
1:31:50 PM
MS. DIPIETRO articulated that the AJC does not have base line
data so it could not determine whether prior to tort reform
settlements were a certain amount or after tort reform
settlements were a certain amount. She said the thought was
that the AJC could report that immediately after tort reform
things were a certain way, and five years later had changed, and
ten years later had changed again. She remarked it would not be
the type of analysis to prove a causation as it would just be a
correlation.
1:32:30 PM
VICE CHAIR KELLER said that part of the AJC's responsibility is
offering recommendations to judges, and he asked whether any of
the non-compliant attorneys became judges and asked Ms. DiPietro
to report back.
MS. DIPIETRO replied "I actually do not know the answer to that
question."
1:33:03 PM
REPRESENTATIVE CLAMAN noted that part of the rule was amending
either the court rules or attorney rules relating to attorney
client privilege and whether or not disclosing this information
violated the attorney client privilege, particularly relating to
settlements. He asked whether anyone tested that question in
court, whether lawyers were unwilling to report because they
believe it is an attorney-client violation.
MS. DIPIETRO responded that her knowledge no one has ever
challenged that issue in court. She said she has heard that
some attorneys object to the idea of disclosing the information
on that ground, but described her statement as hearsay.
1:34:25 PM
REPRESENTATIVE CLAMAN referred to Representative Keller's
question of sitting judges who, when in practice, had complied
every time, sometimes, or never.
MS. DIPIETRO advised the AJC would have to go back to the court
and obtain the list of cases that had been dismissed or settled
and determine who the attorneys were and whether a report was
submitted. "That would be quite the tricky research project."
VICE CHAIR KELLER advised Representative Claman that he could
work it out whether he wanted the information, but his question
was "rhetorical" because he believes it was ignored.
REPRESENTATIVE GRUENBERG called the committee's attention to AS
09.68.130(b), which is the statute that will be repealed under
the bill, which read:
(b) The information received by the council under (a)
of this section is confidential. This restriction does
not prevent the disclosure of summaries and statistics
in a manner that does not allow the identification of
particular cases or parties.
REPRESENTATIVE GRUENBERG offered that many settled civil cases
are confidential, but are not confidential as to statistics.
1:36:50 PM
NANCY MEADE, General Counsel, Central Office, Office of the
Administrative Director, Alaska Court System, responded to
Representative Gruenberg that the legislature does have the
right to change court rules of practice and procedure
constitutionally, and that it takes place several times per
session. She opined it is an appropriate exercise of the
legislature's authority, and in this instance, those rules are
in the Alaska Rules of Court solely due to the passage of the
statute. In the event the statute and court rules are repealed
it would not be problematic from the court's point of view to
also repeal the court rules, she explained.
REPRESENTATIVE GRUENBERG opined that if the legislature changed
it to a request of court, it would not be a rule change and
would not require two-thirds vote.
MS. MEADE responded that Legislative Legal and Research
Services, who deals with statutory changes, always checks to
determine whether there would at least be an indirect rule
amendment, if not a direct one. She stated it is their call as
to whether statutory changes do impact rules.
VICE CHAIR KELLER opened public testimony.
1:39:24 PM
BREWSTER JAMIESON, Attorney, Lane Powell LLC, said he has been
practicing civil litigation for 31 years in Alaska and noted
that the law does not accomplish much in the way of useful
information, but it does place a burden on practitioners. In
terms of settlement information, the data is of cases in the
court system, not cases that are settled before they go to
court. He opined that tort reform accomplished much of what it
set out to accomplish and has had a significant impact on his
practice in terms of the certainty it brought in areas that were
uncertain before passage. He said that tort reform made it
easier to resolve and settle cases and predict outcomes. He
highlighted that there are factors determining the dollar amount
cases settle for, and what juries award in the way of verdicts.
It is expensive and difficult to collect data that doesn't tell
much about the cases, or whether tort reform was or was not
good, should or should not continue, or is fair or unfair, he
explained. He remarked he fully supports the repeal of this
provision and the bill.
1:45:20 PM
KEN JACOBUS, Attorney, Law Offices of Kenneth P. Jacobus,
paraphrased the following statement [original punctuation
provided]:
As Chairman of the Judiciary Committee, you should be
able to do something about this abomination that
continues to exist in the Alaska Statutes. I have
enclosed the most recent Resolution of the Anchorage
Bar Association directed at this matter. Every year
since 2003 through 2010, similar resolutions were
adopted by the Anchorage Bar Association and the
Alaska Bar Association. The Legislature has continued
to ignore this request, so we finally gave up.
The enclosed resolution lists a lot of the reasons
that the statute is bad. At the present time, these
reports must be made. Many of the attorneys do not
follow this law. I think that a lot of them don't even
know about it. Those that do bill their clients or
absorb the cost as an administrative cost. Nothing is
done with the reports by the State because it has no
need of the information.
I have enclosed some additional information. In 2001,
the Judicial Council itself recommended the
elimination of the automatic reporting requirement. It
desired to retain the right to collect information if
it needed to do so in the future. It prepared a draft
of a bill that would accomplish this result. Copies of
the relevant information is enclosed.
My personal preference would be to repeal AS 09.68.130
completely. However, if the Judicial Council wants to
retain the right to collect information, I have no
real problem. While it has collected information for
15 years since it published its only report, I do not
assume that it will collect information in the future
unless there is a real purpose in doing so.
Repealing this statute would lessen a useless and
major burden on Alaskan attorneys and clients If the
State wants to collect information in the future, it
is free to do so.
MR. JACOBUS advised that prior to tort reform there was an
assumption that verdicts were too high, and attorneys were paid
too much. The AJC study showed there are not a number of large
jury verdicts in Alaska, or large settlements, and attorneys are
not being paid huge amounts of money. He referred to page 1,
lines 6-9, AS 09.68.130(a), which read:
(a) Except as provided in (c) of this section, the
Alaska Judicial Council shall periodically collect and
evaluate information relating to the resolution of
civil litigation ...
MR. JACOBUS suggested the word "shall" mandatory, should be
changed to "may" discretionary.
VICE CHAIR KELLER referred to Version H, and explained that it
deletes that entire section as the language now reads "AS
09.68.130 is repealed."
1:50:12 PM
REPRESENTATIVE CLAMAN noted the committee substitute (CS) does
away with the authority to collect any information at all and
asked whether Mr. Jacobus was in favor of the CS.
MR. JACOBUS advised he is in support of the CS and does not
believe the Alaska Bar Association would be very happy being the
enforcement mechanism. "It can't deal with thousands of
disciplinary complaints because attorneys do not file their
required reports," he expressed.
1:51:26 PM
SARAH BADTEN, Attorney, Groh, Eggers, LLC, stated she
wholeheartedly supports repealing the statute as her practice is
in contract law and contract principle where she sues over a
lien foreclosure or payment of money. She emphasized that
individuals pay the money that is owed and the case is dismissed
so it is not reflective of any useful information to the AJC or
the legislature. She remarked that she deals with costs that
are transferred back to the borrower or owner. She attempts to
keep costs down, but it is part of her time and she charges her
clients who then pass that cost through to the owner. She said
she would like to see the statute repealed as it is archaic and
costs unnecessary time and money.
VICE CHAIR KELLER closed public testimony after ascertaining no
one further wished to testify.
1:54:28 PM
The committee took a brief at ease.
VICE CHAIR KELLER passed the gavel to Chair LeDoux and the bill
was held in committee.