Legislature(2019 - 2020)GRUENBERG 120

02/17/2020 01:00 PM JUDICIARY

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01:07:22 PM Start
01:08:01 PM HB201
01:49:20 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= HB 201 DEFENSE OF PUB. OFFICER: ETHICS COMPLAINT TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
        HB 201-DEFENSE OF PUB. OFFICER: ETHICS COMPLAINT                                                                    
                                                                                                                                
1:08:01 PM                                                                                                                    
                                                                                                                                
CHAIR CLAMAN announced  that the only order of  business would be                                                               
HOUSE BILL NO.  201, "An Act relating to  legal representation of                                                               
public officers in ethics complaints."                                                                                          
                                                                                                                                
1:08:14 PM                                                                                                                    
                                                                                                                                
CHAIR  CLAMAN  stated  that  in   the  previous  House  Judiciary                                                               
Standing Committee meeting, members had  asked for answers to two                                                               
specific questions in  the case of an ethics  complaint against a                                                               
judge:  First, what happens?  Second, who pays?                                                                                 
                                                                                                                                
1:08:54 PM                                                                                                                    
                                                                                                                                
NANCY  MEADE,  General  Counsel,  Office  of  the  Administrative                                                               
Director, Alaska  Court System, answered questions  pertaining to                                                               
HB  201.   She  stated  that the  Alaska  Commission on  Judicial                                                               
Conduct handles  ethics complaints  filed against a  judge, which                                                               
any  citizen can  file.   She explained  that the  commission has                                                               
three  attorneys, three  public  members, and  is  staffed by  an                                                               
executive director.   When  a complaint  is filed,  the executive                                                               
director  looks  at the  complaint  to  determine whether  it  is                                                               
frivolous and within the jurisdiction  of the commission, meaning                                                               
it  alleges an  ethical violation  and not  something else.   She                                                               
stated  that  the  executive director  will  either  dismiss  the                                                               
complaint  and notify  the individual  who  filed it  or start  a                                                               
preliminary investigation if it  is determined that the complaint                                                               
is  not frivolous.   Following  that,  the case  could either  be                                                               
dismissed  and the  complainant notified,  or more  investigation                                                               
could  be  undertaken  if  needed.     She  remarked  that  these                                                               
decisions by the executive director  go through the commission to                                                               
ensure  that  the process  is  being  undertaken properly.    She                                                               
explained that,  thereafter, the case  could be dismissed,  or it                                                               
could  go to  a formal  hearing  in which  a judge  is called  to                                                               
defend himself/herself  of the allegation(s).   In this situation                                                               
a judge is  entitled to hire an attorney at  any point; the judge                                                               
must  pay the  attorney's fees  himself/herself, as  there is  no                                                               
provision for any reimbursement.                                                                                                
                                                                                                                                
1:11:16 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX asked  at what point the  judge is notified                                                               
that a complaint has been filed against him/her.                                                                                
                                                                                                                                
1:11:38 PM                                                                                                                    
                                                                                                                                
MS.  MEADE  replied that  notification  would  happen during  the                                                               
third  stage,  which  happens  if   the  executive  director  and                                                               
commission  determine that  further  investigation is  necessary,                                                               
not  during the  preliminary determination  of frivolousness  and                                                               
jurisdiction, or  the preliminary investigation.   In response to                                                               
a follow  up question,  she clarified  that a  judge is  not even                                                               
aware that a  complaint has been filed against  him/her until the                                                               
process reaches the  third stage.  She added that  the reason for                                                               
this  is that  complaints  often come  from  litigants in  active                                                               
cases, and it  is a "better policy" that the  judge does not know                                                               
of a frivolous complaint brought against him/her in a live case.                                                                
                                                                                                                                
1:12:40 PM                                                                                                                    
                                                                                                                                
CHAIR  CLAMAN  asked whether  the  general  thinking around  this                                                               
policy is  that if a  litigant were  to make an  ethics violation                                                               
complaint  against a  judge, and  it  resulted in  getting a  new                                                               
judge for  that case, litigants  might start commonly  using this                                                               
as a means  to switch out a  judge that might be  perceived to be                                                               
unfavorable.                                                                                                                    
                                                                                                                                
1:13:08 PM                                                                                                                    
                                                                                                                                
MS. MEADE answered that this  is likely part of the consideration                                                               
for why the process occurs the way it does.                                                                                     
                                                                                                                                
CHAIR CLAMAN asked whether the  fees incurred by judges when they                                                               
retain counsel are disclosed to the Judicial Conduct Commission.                                                                
                                                                                                                                
MS. MEADE  replied that  she does  not think  the court  ever has                                                               
occasion  to  learn the  amount  of  money  someone spent  on  an                                                               
attorney to defend himself/herself against an ethics complaint.                                                                 
                                                                                                                                
1:13:44 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX  asked how often  a case is  dismissed once                                                               
it has made it past the first two stages of the process.                                                                        
                                                                                                                                
MS. MEADE  answered that she  thinks it  is extremely rare  for a                                                               
case to be dismissed once it has  made it to the point that it is                                                               
public knowledge.   She expressed that the  executive director on                                                               
the commission  has approximately 25  years of experience  in the                                                               
judicial field, and it is known  to be quite disruptive to have a                                                               
public  complaint  against a  judge.    She  stated that  once  a                                                               
complaint becomes public it has  been well examined and screened;                                                               
an exoneration is very rare after that has occurred.                                                                            
                                                                                                                                
1:14:53 PM                                                                                                                    
                                                                                                                                
CHAIR  CLAMAN asked  how often  judges have  retained counsel  to                                                               
represent them in  proceedings, once the process  has reached the                                                               
public complaint stage.                                                                                                         
                                                                                                                                
MS.  MEADE replied  that to  her knowledge  judges always  retain                                                               
counsel if  the process has  reached the public  complaint stage,                                                               
unless there  is a  case which she  has not heard  of in  which a                                                               
judge chose to  represent himself/herself.  She  added that these                                                               
proceedings are quite rare.                                                                                                     
                                                                                                                                
1:15:32 PM                                                                                                                    
                                                                                                                                
CHAIR CLAMAN  stated that there  are three main issues  he thinks                                                               
the  committee  should  discuss:    First,  should  the  proposed                                                               
provisions  apply to  legislators?   Second,  should  there be  a                                                               
standard exoneration  rate requirement for  the state to  pay the                                                               
fees,  as in  does the  accused public  official have  to be  the                                                               
prevailing party  in all  the allegations  or just  a percentage?                                                               
Third, should  the state advance  legal fees for  private counsel                                                               
and require the public official to  pay those fees back if he/she                                                               
is not exonerated  on the claim; should there  be a reimbursement                                                               
plan requiring public  officials to "pay to be  paid"; and should                                                               
there not  be fee  advancements unless  the official  has already                                                               
been exonerated?                                                                                                                
                                                                                                                                
1:17:13 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE STUTES remarked  that she does not  know why these                                                               
rules shouldn't apply  to legislators as well.  She  said that if                                                               
a rule  should apply  "across the board,  it should  apply across                                                               
the board."                                                                                                                     
                                                                                                                                
1:17:29 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE EASTMAN asked  whether Representative Stutes means                                                               
across the  board as  in covering  the judiciary  as well  as the                                                               
legislative and executive, or covering  only two out of the three                                                               
branches.                                                                                                                       
                                                                                                                                
1:17:45 PM                                                                                                                    
                                                                                                                                
CHAIR CLAMAN commented that he thinks  it would be two out of the                                                               
three branches.  Given the  testimony from Ms. Meade, the statute                                                               
structure,  and  the  function  of  the  Commission  on  Judicial                                                               
Conduct, the current proposed legislation  would address only the                                                               
executive branch and the legislative branch.                                                                                    
                                                                                                                                
1:18:05 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  EASTMAN asked  what limitations  executive branch                                                               
employees would  have to  contend with that  are parallel  to the                                                               
limitations put  on the legislative branch,  regarding acceptance                                                               
of legal services.                                                                                                              
                                                                                                                                
CHAIR CLAMAN  commented that the  committee had not  received any                                                               
additional  input on  that topic.   He  suggested that  Dan Wayne                                                               
might be able to address this question.                                                                                         
                                                                                                                                
1:18:45 PM                                                                                                                    
                                                                                                                                
DAN  WAYNE,  Attorney,  Legislative  Legal  Counsel,  Legislative                                                               
Affairs   Agency,    Alaska   State   Legislature,    asked   for                                                               
clarification on the question.                                                                                                  
                                                                                                                                
1:19:08 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  EASTMAN asked  what  limitations,  like the  $250                                                               
limitation  placed   on  legislators   when  accepting   gifts  -                                                               
including legal help  - are placed on  executive branch employees                                                               
such as the governor or lieutenant governor.                                                                                    
                                                                                                                                
MR. WAYNE, referencing AS 39.52.130,  stated that there was not a                                                               
stated limit  on gifts  for the executive  branch, just  that any                                                               
gift over  $150 must  be reported.   In response  to a  follow up                                                               
question from  Chair Claman,  he explained that  there is  a rule                                                               
under AS 39.52.130(a), which reads:                                                                                             
                                                                                                                                
     (a)  A  public  officer  may not  solicit,  accept,  or                                                                    
     receive,  directly or  indirectly, a  gift, whether  in                                                                    
     the   form    of   money,   service,    loan,   travel,                                                                    
     entertainment, hospitality, employment,  promise, or in                                                                    
     any  other form,  that is  a benefit  to the  officer's                                                                    
     personal  or financial  interests, under  circumstances                                                                    
     in which it could reasonably  be inferred that the gift                                                                    
     is intended  to influence  the performance  of official                                                                    
     duties,  actions, or  judgment.  A gift  from a  person                                                                    
     required to  register as a lobbyist  under AS 24.45.041                                                                    
     to  a public  officer or  a public  officer's immediate                                                                    
     family member  is presumed to be  intended to influence                                                                    
     the  performance   of  official  duties,   actions,  or                                                                    
     judgment  unless  the  giver  is  an  immediate  family                                                                    
     member of the person receiving the gift.                                                                                   
                                                                                                                                
MR. WAYNE stated  that this provision might apply  in some cases,                                                               
depending on the  facts involved, but otherwise he  said it looks                                                               
like there is only a reporting requirement.                                                                                     
                                                                                                                                
1:21:17 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE EASTMAN  commented that  this sounds  like another                                                               
way  of saying  "you're not  allowed to  bribe public  officials,                                                               
which I think we're all probably  okay with."  He stated that the                                                               
reference  to the  Legislative Ethics  Act is  different in  that                                                               
there  is no  nexus  to any  official or  public  action, just  a                                                               
clearly stated cap.  He expressed  that that is the difference he                                                               
sees  between  the  ethics provisions  for  the  legislative  and                                                               
executive branches.                                                                                                             
                                                                                                                                
MR.  WAYNE   commented  that  the   main  gift  section   of  the                                                               
Legislative Ethics Act,  under AS 24.60.080, is  much longer than                                                               
that of the  executive branch due to all  the exceptions outlined                                                               
under the  provision.  He explained  that there is a  hard $250 a                                                               
year aggregate limit on gifts  with several exceptions.  He added                                                               
that there  is another  rule that  prohibits accepting  any gifts                                                               
from  lobbyists, with  very narrow  exceptions,  which would  not                                                               
include a gift of legal services.                                                                                               
                                                                                                                                
1:22:58 PM                                                                                                                    
                                                                                                                                
CHAIR CLAMAN asked  whether this statute prohibits  a lawyer from                                                               
donating  legal services  to a  legislator accused  of an  ethics                                                               
violation over  $250, or  whether it  could be  allowed if  it is                                                               
disclosed.                                                                                                                      
                                                                                                                                
MR.  WAYNE  replied  that  AS  24.60.080(c)(8)  points  out  that                                                               
"notwithstanding (a)(1)  of this section,  it is not  a violation                                                               
of this section  for a person who is a  legislator or legislative                                                               
employee  to accept  a  gift of  legal services  in  a matter  of                                                               
legislative concern and  a gift of other services  related to the                                                               
provision of legal services in  a matter of legislative concern."                                                               
He  said  that the  question  comes  down  to  what a  matter  of                                                               
legislative concern is, which is  not defined.  He expressed that                                                               
beyond that he was  not sure what the answer is,  but he could do                                                               
some  research  and   find  out  if  the   ethics  committee  has                                                               
considered this question before.                                                                                                
                                                                                                                                
1:24:14 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX  asked whether a legal  defense fund exists                                                               
for legislators and, if so, what its role is in this situation.                                                                 
                                                                                                                                
1:24:26 PM                                                                                                                    
                                                                                                                                
MR. WAYNE  replied that he  does not  think there is  a provision                                                               
specifically  allowing  for  reimbursement of  complaint  related                                                               
legal fees to be  paid to legislators, or a legal  fund to be set                                                               
up for them.                                                                                                                    
                                                                                                                                
1:24:59 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LEDOUX commented  that she  recalled a  contested                                                               
election  in   the  Utqiagvik  area,   in  which   the  incumbent                                                               
legislator set up  a legal defense fund.  She  expressed that she                                                               
would like to  know how that came  to pass and its  place in this                                                               
scenario.                                                                                                                       
                                                                                                                                
MR. WAYNE responded that he  was not familiar with that scenario,                                                               
but  it could  be  related  to a  matter  of legislative  concern                                                               
instead of  an ethics complaint.   He expressed that he  has been                                                               
unable  to  find  any  authority  showing  that  there  has  been                                                               
reimbursement  of  legal fees  for  an  ethics complaint  to  any                                                               
legislator or legislative employee.                                                                                             
                                                                                                                                
1:26:06 PM                                                                                                                    
                                                                                                                                
CHAIR  CLAMAN commented  that a  legal  defense fund  might be  a                                                               
different question, because  if it is raising  money from members                                                               
of the  public to pay  for a  legal defense, then  presumably the                                                               
fees of the lawyer are payed by  the legal defense fund and it is                                                               
not a contribution from the lawyer.                                                                                             
                                                                                                                                
1:26:26 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX  stated that  it is her  understanding that                                                               
over  $250 a  person  can  be raised  for  a  legal defense  fund                                                               
without running  into an  ethical violation,  although it  is not                                                               
allowed to be raised from lobbyists.                                                                                            
                                                                                                                                
1:26:51 PM                                                                                                                    
                                                                                                                                
MR. WAYNE replied that the type  of fund being described does not                                                               
sound like an  ethics complaint fund, but rather  some other kind                                                               
of legal issue where  the money from the fund is  used to pay for                                                               
representation  in litigation  for that  issue, not  to reimburse                                                               
the  legislator  for   money  he/she  laid  out   for  an  ethics                                                               
complaint.                                                                                                                      
                                                                                                                                
1:27:30 PM                                                                                                                    
                                                                                                                                
CHAIR CLAMAN commented  that he agrees that this  sounds like the                                                               
case in  the example described  by Representative LeDoux,  but he                                                               
thinks  that there  was a  time  when Congressman  Don Young  was                                                               
facing  various ethics  and  other complaints,  and  he raised  a                                                               
significant amount  of money with  a legal defense fund  which he                                                               
used to  pay his legal  fees.  He  expressed that it  seems there                                                               
are examples  in Alaska  of people  raising legal  defense funds,                                                               
although it is not clear if these applied to state legislators.                                                                 
                                                                                                                                
MR.  WAYNE remarked  that  the Legislative  Ethics  Act does  not                                                               
apply to Congressman Don Young.                                                                                                 
                                                                                                                                
CHAIR CLAMAN  agreed with Mr.  Wayne that the  Legislative Ethics                                                               
Act does not apply to a congressman.                                                                                            
                                                                                                                                
MR. WAYNE  suggested that perhaps  Chair Claman was  referring to                                                               
Alaska Public Offices Commission  (APOC) regulations or statutes,                                                               
regarding the regulation of raising  money for a campaign of some                                                               
kind.                                                                                                                           
                                                                                                                                
1:28:25 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  EASTMAN commented  that  APOC  has published  the                                                               
opinion that campaign  funds may be used  for contesting election                                                               
results as  a part  of the election  process; however,  the funds                                                               
are  not  going to  the  individual  legislator, they  are  going                                                               
straight from the  campaign to the attorney.  He  stated that the                                                               
[U.S.] congressional  ethics rules regarding legal  defense funds                                                               
are well  established and  lengthy.  He  stated that  Alaska does                                                               
not  have any  rules like  that,  although some  people say  that                                                               
there  should be.   He  expressed that  his understanding  of the                                                               
Ethics  Committee's  interpretation  of   defense  in  an  ethics                                                               
complaint is  that it is  a private  concern, which means  that a                                                               
$250 limit  would apply  to any  legal help  being received.   He                                                               
expressed that  his understanding is  that there is  no situation                                                               
in which  a legislator can  accept any help over  $250; currently                                                               
there is no  reimbursement process laid out for  legislators.  He                                                               
expressed  that he  might be  sympathetic  to making  regulations                                                               
which apply to the executive  branch apply "across the board," as                                                               
there  are   occasions  when  a  complaint   made  could  justify                                                               
reimbursement.   He  suggested that  the rules  regarding a  $250                                                               
limit  should  be  investigated  to   ensure  that  they  do  not                                                               
interfere with a  legislator's ability to mount  a legal defense.                                                               
He summarized that  he would find it problematic  if a legislator                                                               
were to find himself/herself in  a situation where he/she did not                                                               
personally have the  funds to pay for a defense  and he/she could                                                               
not accept funds from any source.                                                                                               
                                                                                                                                
1:31:30 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX commented that  she thinks the reason these                                                               
rules should extend to the  legislative branch is that currently,                                                               
an informal process exists in  which the chair of the Legislative                                                               
Council  has the  authority to  reimburse legislators,  which has                                                               
happened in the past; however,  this process is "not written down                                                               
anyplace."  She suggested that  a specified standard should be in                                                               
place   so   that   all  legislators   would   have   access   to                                                               
reimbursements, as opposed  to the current process  in which only                                                               
legislators  who have  been informed  of the  process by  word of                                                               
mouth know about them.                                                                                                          
                                                                                                                                
1:32:40 PM                                                                                                                    
                                                                                                                                
CHAIR  CLAMAN commented  that  it  is one  thing  to  say that  a                                                               
legislator can't  except gifts, and another  to determine whether                                                               
the  fees  advanced  for  a  defense, in  an  allegation  that  a                                                               
legislator  has acted  outside the  scope  of his/her  authority,                                                               
should  be  reimbursed  if  that   legislator  is  exonerated  or                                                               
receives some degree  of exoneration.  He clarified  that this is                                                               
different from  receiving representation from a  lawyer that does                                                               
not charge.   He expressed that possibly  the determination might                                                               
be  that  "we"  are  comfortable  with that  level  of  pro  bono                                                               
representation.                                                                                                                 
                                                                                                                                
1:33:31 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX suggested that  the discussion on gifts may                                                               
not be important  in the context of HB 201,  if the determination                                                               
is that a  procedure should be in place that  a legislator or the                                                               
governor can be reimbursed for  expenses that he/she has laid out                                                               
or, in  the event  that he/she cannot  afford the  expenses, that                                                               
the state should  pay for an attorney with the  "proviso that the                                                               
funds be  repaid."  She stated  that the topic of  gifts might be                                                               
important in another discussion, but  she does not think it needs                                                               
to be resolved at this specific point in time.                                                                                  
                                                                                                                                
1:34:30 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE EASTMAN  commented that the concern  would be that                                                               
if an individual has to "come  up" with the money first, in order                                                               
to go  through the  process that  would allow  for him/her  to be                                                               
reimbursed, then  it could  create a  situation in  which someone                                                               
can  only be  reimbursed if  he/she has  a significant  amount of                                                               
money to  begin with.   He  remarked that he  does not  think "we                                                               
want to do that."                                                                                                               
                                                                                                                                
1:35:00 PM                                                                                                                    
                                                                                                                                
CHAIR CLAMAN offered that a  counter to the scenario suggested by                                                               
Representative  Eastman  would be  whether  the  state should  be                                                               
advancing money  when someone  is alleged  to have  acted outside                                                               
the scope  of his/her authority  and is  found to have,  in fact,                                                               
acted  outside  of his/her  authority.    He remarked  that  that                                                               
person  may  not  have  the   ability  to  pay  the  money  back,                                                               
regardless of whether  he/she is required to.   He suggested that                                                               
a stronger case  could be made for reimbursement when  a claim is                                                               
dismissed  than when  it is  found that  someone has  been acting                                                               
outside his/her authority.  He  summarized that the general sense                                                               
he is getting  from the committee is a reception  to modifying HB
201 to add  legislators to the people covered  under the proposed                                                               
legislation.                                                                                                                    
                                                                                                                                
1:35:57 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX pointed out  her understanding that current                                                               
regulations allow  the executive branch  to hire an  attorney and                                                               
for  there to  be a  reimbursement  prior to  a determination  of                                                               
guilt  or  innocence.    She  expressed that  she  would  not  be                                                               
inclined to  change this regarding  the executive branch,  as she                                                               
thinks that there  would be a multitude of  complaints against an                                                               
official regardless  of who he/she  is, that is just  "the nature                                                               
of  politics today."   She  summarized that  a person  should not                                                               
have  to  be  independently  wealthy  in order  to  be  a  public                                                               
servant.                                                                                                                        
                                                                                                                                
CHAIR CLAMAN  stated that the  next topic of discussion  would be                                                               
whether there  should be a standard  exoneration rate requirement                                                               
for  the state  to pay  an official's  fees, as  in:   Should the                                                               
accused public  official have to  be the prevailing party  on 100                                                               
percent, 90 percent, or 75 percent of the allegations?                                                                          
                                                                                                                                
1:37:52 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE EASTMAN  commented that  he thinks when  there are                                                               
multiple complaints  brought against an official,  each complaint                                                               
should  be treated  separately; an  exoneration should  allow for                                                               
reimbursement on that specific complaint only.                                                                                  
                                                                                                                                
1:38:25 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX asked how  reimbursements are determined in                                                               
public interest litigation.                                                                                                     
                                                                                                                                
1:38:38 PM                                                                                                                    
                                                                                                                                
CHAIR CLAMAN replied  that the committee had  not researched that                                                               
topic; however, he knows there  are cases about what a prevailing                                                               
party is  in public  interest litigation.   He commented  that he                                                               
had not looked  at any of these  cases for at least  20 years and                                                               
his  memory   on  them   was  unreliable.     He   remarked  that                                                               
Representative  Eastman's question  raised  an interesting  point                                                               
regarding  reimbursements   for  multiple  complaints.     As  an                                                               
example,  he  referenced  a hypothetical  situation  in  which  a                                                               
"Legislator Smith" had  a complaint filed against  him/her on the                                                               
first  of  January with  one  allegation,  and another  complaint                                                               
filed with  one allegation on  the first  of July.   He explained                                                               
that it  would be  easy to distinguish  between the  fees accrued                                                               
for each allegation; however, if  instead on the first of January                                                               
the complaint  contained six  different allegations,  the reality                                                               
is that  the lawyer  retained by Legislator  Smith would  look at                                                               
all six allegations collectively  and respond collectively.  This                                                               
would  make it  difficult  to distinguish  which  fees covered  a                                                               
specific allegation  for reimbursement  purposes.   He summarized                                                               
that  in some  instances  it  might be  easy  to distinguish  one                                                               
allegation from the next, but in others it would be muddled.                                                                    
                                                                                                                                
CHAIR CLAMAN remarked to Representative  LeDoux that his sense of                                                               
the committee is  that it would probably like to  know more about                                                               
public  interest attorney's  fees.   In response  to a  follow up                                                               
question from  Representative LeDoux, he asked  Mr. Wayne whether                                                               
he has  done research  into prevailing  party attorney's  fees in                                                               
public interest litigation.                                                                                                     
                                                                                                                                
1:41:00 PM                                                                                                                    
                                                                                                                                
MR.  WAYNE answered  that he  recalls reading  a statute  over 15                                                               
years ago on a court rule.   He added that he couldn't answer the                                                               
question currently but could try to find an answer.                                                                             
                                                                                                                                
1:41:26 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  EASTMAN   remarked  that  another   factor  worth                                                               
considering  is that  in some  public interest  cases, such  as a                                                               
constitutional rights case, a person  cannot be required to cover                                                               
the legal fees of the  opposing party, regardless of whether that                                                               
individual prevails on the case.                                                                                                
                                                                                                                                
1:42:02 PM                                                                                                                    
                                                                                                                                
CHAIR CLAMAN stated that the  third question before the committee                                                               
was  whether the  state  should advance  fees  regardless of  the                                                               
outcome  of the  case,  and  how it  should  be  dealt with  when                                                               
someone does  not prevail on a  claim filed against him/her.   He                                                               
commented that  Representative LeDoux  had expressed a  view that                                                               
the "fees should be advanced and  just see what happens" and then                                                               
"cross that  bridge" when  there is  a question  of reimbursement                                                               
and whether the individual can cover repayment.                                                                                 
                                                                                                                                
1:42:44 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LEDOUX responded  that she  thought that  the way                                                               
the process  works in the  executive branch is that  the official                                                               
can either ask  for reimbursement or, if he/she  doesn't have the                                                               
money,  he/she  can ask  for  the  state  to  pay, and  her  "gut                                                               
reaction" is to let that rule apply to the legislature as well.                                                                 
                                                                                                                                
1:43:19 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE STUTES remarked that she  does not think the state                                                               
should  advance fees.    She said  that she  thinks  it would  be                                                               
difficult to recover the fees and would be inappropriate.                                                                       
                                                                                                                                
1:43:51 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  EASTMAN recalled  a situation  from his  "part of                                                               
town," in which a legislator was  assessed some fees by the state                                                               
and a  payment plan was  put together.   He stated that  this has                                                               
happened at  least once or  twice, so he  could see how  it could                                                               
happen in a situation like this as well.                                                                                        
                                                                                                                                
1:44:15 PM                                                                                                                    
                                                                                                                                
CHAIR  CLAMAN  commented  that  it  sounded  like  Representative                                                               
Eastman  was  "in  Representative  LeDoux's camp"  and  would  be                                                               
comfortable  with the  state potentially  advancing fees,  and if                                                               
the accused individual  ends up not getting  an exoneration, then                                                               
he/she would either have  to pay back the fees or  come up with a                                                               
payment plan.                                                                                                                   
                                                                                                                                
1:44:28 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE EASTMAN  replied that he  thinks it would  be nice                                                               
to have  a standard across the  board, and he sees  a problematic                                                               
nature in the current system,  whereas sometimes a legislator can                                                               
receive  money  from  the  Legislative  Council,  other  times  a                                                               
legislator  may not  even  be  aware it  is  a  possibility.   He                                                               
summarized that he would like to see a more uniform system.                                                                     
                                                                                                                                
1:44:52 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX commented  that her intent with  HB 201 was                                                               
not to make  things more difficult for the  executive branch than                                                               
they  currently  are;  her  intent was  to  incorporate  the  old                                                               
regulations into  statute.   She added  that the  discussions the                                                               
committee  had  regarding  prevailing  parties  and  whether  the                                                               
proposed  legislation should  apply to  the legislature  leads to                                                               
the question of whether the standards  should be the same for the                                                               
legislative branch and executive branch.                                                                                        
                                                                                                                                
1:45:56 PM                                                                                                                    
                                                                                                                                
CHAIR  CLAMAN  suggested that  the  committee  go off  record  to                                                               
discuss a  reasonable timeline for  HB 201 moving forward,  as it                                                               
seemed  to him  that the  existing legislation  would need  to be                                                               
amended.                                                                                                                        
                                                                                                                                
1:46:30 PM                                                                                                                    
                                                                                                                                
The committee took an at-ease from 1:46 p.m. to 1:47 p.m.                                                                       
                                                                                                                                
1:47:54 PM                                                                                                                    
                                                                                                                                
CHAIR CLAMAN announced that HB 201 would be held over for                                                                       
further review.                                                                                                                 

Document Name Date/Time Subjects
HB 201 v. U 2.10.2020.PDF HJUD 2/10/2020 1:00:00 PM
HJUD 2/17/2020 1:00:00 PM
HJUD 2/24/2020 1:00:00 PM
HB 201
HB 201 Sponsor Statement 2.10.2020.pdf HJUD 2/10/2020 1:00:00 PM
HJUD 2/17/2020 1:00:00 PM
HJUD 2/24/2020 1:00:00 PM
HB 201
HB 201 Fiscal Note LAW-CIV 2.8.20.pdf HJUD 2/17/2020 1:00:00 PM
HJUD 2/24/2020 1:00:00 PM
HB 201