Legislature(2005 - 2006)CAPITOL 120

03/09/2005 01:00 PM House JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Heard & Held
Heard & Held
Heard & Held
Bills Previously Heard/Scheduled
Moved CSHB 149(JUD) Out of Committee
HB 103 - CLAIMS AGAINST THE STATE                                                                                             
1:16:00 PM                                                                                                                    
CHAIR McGUIRE  announced that the  first order of  business would                                                               
be  HOUSE BILL  NO. 103,  "An Act  requiring an  actionable claim                                                               
against the state to be tried without a jury."                                                                                  
1:16:22 PM                                                                                                                    
HEATH HILYARD,  Staff to Representative Mike  Kelly, Alaska State                                                               
Legislature,  sponsor, said  on  behalf  of Representative  Kelly                                                               
that HB  103 provides for a  simple change to the  existing [law]                                                               
that says  claims against  the state  shall be  tried by  a jury;                                                               
with the  change proposed by HB  103, such claims shall  be tried                                                               
by a  judge without  a jury.   He pointed  out that  the proposed                                                               
change would return the state to  the same procedure it had prior                                                               
to  1975,  when  Senator John  Butrovich  introduced  legislation                                                               
providing for  the current procedure.   He also pointed  out that                                                               
in  1975, the  state  was  a party  in  University  of Alaska  v.                                                             
National  Aircraft leasing,  Ltd., 536  P.2d 121,  128-29 (Alaska                                                             
1975),  and relayed  that according  to  information he  received                                                               
from a member of the 1975  University of Alaska Board of Regents,                                                               
Senator  Butrovich introduced  the aforementioned  legislation in                                                               
response  to   that  case.     Mr.  Hilyard  said  that   he  and                                                               
Representative  Kelly  have spoken  to  general  counsel for  the                                                               
University of Alaska, who indicated  that she has no problem with                                                               
the  proposed  change.   In  addition,  he  relayed, he  and  the                                                               
sponsor were told  by the Alaska Academy of  Trial Lawyers (AATL)                                                               
that it remains neutral on the issue.                                                                                           
CHAIR  McGUIRE, after  ascertaining that  no one  else wished  to                                                               
testify, closed public testimony on HB 103.                                                                                     
1:18:57 PM                                                                                                                    
REPRESENTATIVE  GARA  relayed  that  he has  a  lot  of  concerns                                                               
regarding HB  103 and would  like to  have more discussion  on it                                                               
with all committee members present.                                                                                             
CHAIR  McGUIRE  noted  that  the members  who  were  absent  have                                                               
requested  that the  bill be  heard  another time  when they  can                                                               
attend.  She  suggested that today, members that  are present can                                                               
provide  the sponsor's  staff with  a list  of items  they'd like                                                               
more information on for the bill's next hearing.                                                                                
REPRESENTATIVE GRUENBERG  mentioned that HB 103  was discussed in                                                               
the House State Affairs Standing  Committee; that he has concerns                                                               
with the  bill; and that  when the bill  was reported out  of the                                                               
House State Affairs  Standing Committee, he voted  "do not pass."                                                               
He said he  would like to have testimony reopened  [when the bill                                                               
is heard next].                                                                                                                 
CHAIR McGUIRE relayed that she would do so.                                                                                     
REPRESENTATIVE  GRUENBERG  opined  that   juries  tend  to  favor                                                               
defendants,   and  offered   his   understanding   that  in   the                                                               
aforementioned case,  it was  the University  of Alaska  that had                                                               
asked for a trial by jury.                                                                                                      
[Chair McGuire turned the gavel to over to Representative Kott.]                                                                
REPRESENTATIVE  KOTT asked  Representative  Gara  to explain  his                                                               
1:22:11 PM                                                                                                                    
REPRESENTATIVE GARA  Opined that  there's more  chance of  a jury                                                               
getting a case  right than there is of a  judge getting it right.                                                               
He added:                                                                                                                       
     What happens  in the  dynamic of a  jury trial  is that                                                                    
     certain people miss certain evidence,  and they all get                                                                    
     in the  room and  then one will  say, "Do  you remember                                                                    
     this  part,"  and  then  another   will  say,  "Do  you                                                                    
     remember  this part."   And  I  think when  you put  12                                                                    
     heads  together -  or  6  heads, I  think,  ... [in]  a                                                                    
     district court case - ... you  have more of a chance of                                                                    
     getting  it exactly  right than  you do  if you're  one                                                                    
     person.  So  I think jury trials are  better than judge                                                                    
     trials  -  that's my  personal  belief.   I  think  the                                                                    
     constitutional  framework  is  that people  get  to  be                                                                    
     judged by  their peers,  and I think  the value  of the                                                                    
     jury system is incredible, in my view.                                                                                     
     And  so I  don't  like  taking away  the  right of  the                                                                    
     community  to come  in  and judge  the  conduct of  the                                                                    
     state, judge the conduct of  the plaintiff. ... I would                                                                    
     be  more scared,  as a  litigant,  of a  decision by  a                                                                    
     judge than I would [be of] a  decision by a jury.  So I                                                                    
     think the  jury process  is much stronger  than letting                                                                    
     just a  judge decide a case.   It's also faster.   What                                                                    
     happens is,  judges, when they  decide cases,  like any                                                                    
     sort  of person  who's overwhelmed  with work,  they'll                                                                    
     sit on a case during  the trial and they feel compelled                                                                    
     to ... [provide] a written  decision, and it can be six                                                                    
     months  or longer  to get  a  decision out  of a  judge                                                                    
     after  the  trial is  over.    [In comparison]  a  jury                                                                    
     returns the verdict pretty quickly. ...                                                                                    
REPRESENTATIVE GARA  concluded by saying  that he likes  the jury                                                               
REPRESENTATIVE  GRUENBERG offered  his  belief that  with a  jury                                                               
verdict  -  unless  there  is  something  very  unusual,  or  the                                                               
evidence could  not possibly  support the  factual decision  of a                                                               
jury, or  the jury instructions are  erroneous - it is  very hard                                                               
to overturn a judgment by jury.   On the other hand, he remarked,                                                               
judges  enter  factual  findings  and conclusions  of  law,  "and                                                               
deference is  given to them,"  but a decision  by a judge  can be                                                               
picked  apart  on appeal  much  more  easily  than can  a  jury's                                                               
REPRESENTATIVE  KOTT noted  that the  committee would  be holding                                                               
the bill over.                                                                                                                  
[Representative Kott returned the gavel to Chair McGuire.]                                                                      
REPRESENTATIVE GARA said  he doesn't find it useful  to hear only                                                               
one side of a  story and then make a decision  based only on that                                                               
one side.   So although  members' packets contain a  detailing of                                                               
four  cases  against  the  state, the  information  is  from  the                                                               
state's perspective,  and so  he is disinclined  to rely  on that                                                               
information  without  hearing the  cases  from  the other  side's                                                               
perspective.   He acknowledged, however,  that although  he would                                                               
like to hear both  sides of the story for each  of the four cases                                                               
used as  examples, the committee,  as a practical  matter, cannot                                                               
conduct  "four  trials  on  these cases";  instead,  he  is  just                                                               
pointing  out  that  anecdotal   information  from  one  side  in                                                               
litigated cases is often not that useful.                                                                                       
CHAIR McGUIRE suggested that members  or other interested parties                                                               
have a  bit more time to  present information from both  sides of                                                               
the aforementioned cases.   She stated that HB 103  would be held                                                               
REPRESENTATIVE GARA  asked Mr.  Hilyard how  the bill  relates to                                                               
the [Alaska State] Constitution.                                                                                                
MR. HILYARD  relayed that  Article I, Section  16, of  the Alaska                                                               
State Constitution says:                                                                                                        
     Civil Suits; Trial  by Jury.  In civil  cases where the                                                                  
     amount  in   controversy  exceeds  two   hundred  fifty                                                                    
     dollars,  the right  of trial  by a  jury of  twelve is                                                                    
     preserved to  the same extent  as it existed  at common                                                                    
     law.  The legislature may  make provision for a verdict                                                                    
     by  not less  than three-fourths  of the  jury and,  in                                                                    
     courts not  of record,  may provide for  a jury  of not                                                                    
     less than six or more than twelve.                                                                                         
MR.  HILYARD also  relayed that  Article II,  Section 21,  of the                                                               
Alaska State Constitution says:                                                                                                 
     Suits  Against  the  State.     The  legislature  shall                                                                  
     establish procedures for suits against the State.                                                                          
MR. HILYARD  suggested that the  language of Article  II, Section                                                               
21,  can be  interpreted to  mean  that the  legislature has  the                                                               
discretion  to determine  how claims  against the  state will  be                                                               
[HB 103 was held over.]                                                                                                         

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