Legislature(2005 - 2006)

04/21/2005 04:07 PM House RLS

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04:07:14 PM Start
04:08:51 PM HB103
04:35:00 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 103-CLAIMS AGAINST THE STATE                                                                                               
4:08:51 PM                                                                                                                    
CHAIR ROKEBERG  announced that  the only  order of business  would                                                              
be  HOUSE BILL  NO. 103,  "An Act  requiring  an actionable  claim                                                              
against the state to be tried without a jury."                                                                                  
4:09:09 PM                                                                                                                    
REPRESENTATIVE  COGHILL  moved  to  adopt CSHB  103,  Version  24-                                                              
LS0403\F, Bullock, 4/19/05, as the working document.                                                                            
REPRESENTATIVE BERKOWITZ objected for discussion purposes.                                                                      
4:09:27 PM                                                                                                                    
HEATH HILYARD,  Staff to Representative  Mike Kelly,  Alaska State                                                              
Legislature,  explained that  an  amendment offered  in the  House                                                              
Finance  Committee  was, in  essence,  Version  F.   However,  the                                                              
structure  of   the  amendment  was  technically   incorrect,  and                                                              
therefore  a more  [technically]  correct version  [Version F]  is                                                              
being offered.                                                                                                                  
4:10:00 PM                                                                                                                    
REPRESENTATIVE  BERKOWITZ asked  if Mr. Hilyard  had run  [Version                                                              
F] by Representative Weyhrauch.                                                                                                 
MR. HILYARD replied no.                                                                                                         
4:10:22 PM                                                                                                                    
MR.   HILYARD  related   his   understanding   of  the   amendment                                                              
Representative Weyhrauch  offered and the sponsor  accepted in the                                                              
House  Finance Committee.    He  explained that  after  conferring                                                              
with  the drafter,  it was  concluded  that the  structure of  the                                                              
amendment, which the  language inserted :  "The  state may request                                                              
a  jury   trial  under   this  subsection.",  wasn't   technically                                                              
4:11:29 PM                                                                                                                    
REPRESENTATIVE  COGHILL surmised  then that  the language  "Unless                                                              
the  state requests  a  jury trial,"  in  subsection  (b) is  what                                                              
Representative Weyhrauch wanted to insert.                                                                                      
MR.  HILYARD stated  that  since  Version F  had  been drafted  he                                                              
hadn't  reviewed it  with  Representative  Weyhrauch, although  he                                                              
believes it's  consistent with Representative  Weyhrauch's intent,                                                              
given the nature of his testimony.                                                                                              
4:12:07 PM                                                                                                                    
REPRESENTATIVE KERTTULA  pointed out that under CSHB  103(FIN) the                                                              
language  "The  state   may  request  a  jury   trial  under  this                                                              
subsection."  doesn't intimate  that  the state  will receive  the                                                              
jury trial.  However,  Version F seems to intimate  that the state                                                              
will obtain  a jury trial.   Representative Kerttula asked  if, on                                                              
the record, there was any intent with that.                                                                                     
MR.  HILYARD   said  that   he  was   relying  on   Representative                                                              
Weyhrauch's amendment  as well as  his recollection of  the nature                                                              
of  the discussion  surrounding the  amendment.   He offered  that                                                              
the sponsor  would be happy to  allow the legislation to  stand as                                                              
originally  amended [in the  House Finance  Committee].   However,                                                              
upon conferring with  the drafter, the drafter  didn't believe the                                                              
language was consistent with Representative Weyhrauch's intent.                                                                 
CHAIR  ROKEBERG pointed  out  that  in CSHB  103(FIN)  the use  of                                                              
"may"  is  permissive  and  indicates   the  court  could  refuse.                                                              
However, Version  F seems to  mandate that  upon a request  [for a                                                              
jury trial], it  would be granted.  Therefore, the  question as to                                                              
Representative Weyhrauch's intent remains.                                                                                      
4:14:16 PM                                                                                                                    
REPRESENTATIVE  BERKOWITZ inquired  as to  the criteria  the state                                                              
would use  to make  the request  [for a jury  trial].   He related                                                              
his  understanding that  this legislation  is referred  to as  the                                                              
Bethel jury  legislation and  is in response  to the  concern with                                                              
Western Alaskan juries.                                                                                                         
MR.  HILYARD acknowledged  that some  do refer  to HB  103 as  the                                                              
Bethel  jury  legislation,  but   pointed  out  that  the  sponsor                                                              
doesn't refer to  it as such.  He noted that  the committee packet                                                              
should  include  a document  entitled  "Sample Jury  Awards"  from                                                              
throughout the state,  two of which are from Bethel.   Mr. Hilyard                                                              
noted  that  this list  was  prepared  by the  Attorney  General's                                                              
Office as a sample.                                                                                                             
4:15:08 PM                                                                                                                    
REPRESENTATIVE  BERKOWITZ inquired  as to  the sponsor's  sense of                                                              
what the  correct jury verdict would've  been in those  cases.  He                                                              
asked  if the  cases  [highlighted in  the  "Sample Jury  Awards"]                                                              
were  sent up  on  appeal  to the  Alaska  Supreme  Court and  the                                                              
initial awards reduced.                                                                                                         
MR. HILYARD  related his  understanding that  in two of  the cases                                                              
the judgments  were  reversed on  appeal and  for one case,  Lance                                                            
Miller v. State, there are still post-trial motions pending.                                                                  
REPRESENTATIVE  BERKOWITZ said  that he wasn't  referring  to when                                                              
the verdict is reversed but rather when the award was reduced.                                                                  
MR. HILYARD answered  that he doesn't know, and noted  that he has                                                              
been relying on counsel from the Attorney General's Office.                                                                     
4:16:40 PM                                                                                                                    
REPRESENTATIVE   BRUCE   WEYHRAUCH,  Alaska   State   Legislature,                                                              
recalled that  his amendment  in the  House Finance Committee  was                                                              
that the state may request a trial by jury.                                                                                     
CHAIR  ROKEBERG said  that  the  committee wanted  to  be sure  of                                                              
Representative  Weyhrauch's  intent   and  whether  Version  F  is                                                              
agreeable to him.                                                                                                               
REPRESENTATIVE  WEYHRAUCH related  his opinion  that the  language                                                              
in Version  F essentially  does  the same thing  as CSHB  103(FIN)                                                              
because the  state, and no one else,  can request a jury  trial if                                                              
the state  is a  defendant.   The intent  behind this  legislation                                                              
was  to  keep  large  jury  verdicts  from  occurring  in  Western                                                              
Alaska.   However,  data showed  that may of  these verdicts  were                                                              
reversed on  appeal/reduced or the  state wasn't  taking advantage                                                              
of remitter,  by which a  judge can be asked  for a decline.   The                                                              
purpose of the  amendment proposed in the House  Finance Committee                                                              
was  to allow  a jury  trial in  some  instances.   In some  ways,                                                              
giving  all the  authority  to the  state  seemed  to address  the                                                              
concern.   The  deal, he  explained,  was that  juries were  being                                                              
harmful to  the state,  and therefore  if the  state wants  a jury                                                              
trial, it could live by the consequences.                                                                                       
4:19:09 PM                                                                                                                    
REPRESENTATIVE  KERTTULA  asked  whether  a jury  trial  would  be                                                              
mandatory if the state requested it.                                                                                            
REPRESENTATIVE WEYHRAUCH  explained that currently  if a complaint                                                              
is filed  and an answer  is filed, then a  request for a  trial by                                                              
jury would  have to  occur within  five to ten  days.   Under this                                                              
legislation,  the state could  request a  trial by jury,  although                                                              
the nonstate entity could not.                                                                                                  
CHAIR  ROKEBERG   asked  if   Representative  Weyhrauch   believes                                                              
Version F fairly reflects the intention of his amendment.                                                                       
REPRESENTATIVE  WEYHRAUCH  commented  that  under  Version  F,  it                                                              
seems to present the corollary of [of his amendment].                                                                           
4:19:51 PM                                                                                                                    
CHAIR ROKEBERG reiterated  that the concern has been  that the use                                                              
of  "may" is  permissive  and  may allow  the  court  to deny  the                                                              
state's request for a trial by jury.                                                                                            
REPRESENTATIVE  WEYHRAUCH disagreed,  and emphasized  that if  the                                                              
state  requested a  trial by jury  under his  amendment, then  the                                                              
state received a trial by jury.                                                                                                 
4:20:50 PM                                                                                                                    
REPRESENTATIVE  BERKOWITZ withdrew  his  objection, and  therefore                                                              
Version F was adopted and placed before the committee.                                                                          
4:21:01 PM                                                                                                                    
REPRESENTATIVE  BERKOWITZ  opined that  HB  103 is  an  accusation                                                              
against   Western   Alaska   juries    without   any   foundation.                                                              
Representative  Berkowitz questioned  why the  state would  get to                                                              
choose and  the plaintiff  wouldn't.  He  also questioned  why one                                                              
would desire  taking away the jury's  right to review cases.   "It                                                              
seems to  me a bit  of sovereign arrogance  for us to  pursue this                                                              
course,"  he  said.   He  concluded  by  urging the  committee  to                                                              
reject this legislation soundly.                                                                                                
4:21:44 PM                                                                                                                    
REPRESENTATIVE  KERTTULA pointed  out nothing  in the  legislation                                                              
specifies why the  state would be allowed [the  ability to request                                                              
a trial by jury]  versus other defendants.  The  main reason given                                                              
for  allowing  the  aforementioned  was  in regard  to  juries  in                                                              
Western Alaska.                                                                                                                 
4:22:11 PM                                                                                                                    
CHAIR  ROKEBERG commented  that he  wasn't sure  that the  Western                                                              
Alaska reasoning is entirely accurate.                                                                                          
REPRESENTATIVE  KERTTULA agreed  that might not  be the  case, but                                                              
noted that was the reasoning provided.                                                                                          
4:23:04 PM                                                                                                                    
REPRESENTATIVE  BERKOWITZ related  his understanding  that of  the                                                              
four  sample  jury   awards,  two  verdicts  had   been  reversed.                                                              
Therefore,   the   question  as   to   whether   the  amount   was                                                              
satisfactory was  never addressed.   He noted that he  didn't know                                                              
the outcome of  the remaining two sample jury  awards.  Therefore,                                                              
basing a  large policy  change on  two cases, without  considering                                                              
the  totality  of  evidence,  seems to  be  fairly  arbitrary,  he                                                              
opined.    Representative  Berkowitz related  that  the  anecdotal                                                              
evidence he has  heard is that judge-tried cases tend  to break in                                                              
favor of the plaintiff  more often.  This, taking  power away from                                                              
jury and  giving it to the  judge only, seems  particularly ironic                                                              
when the conservative  movement in America is screaming  about the                                                              
power of judges.   Therefore, Representative Berkowitz  didn't see                                                              
any intellectual  consistency with this or any  practical need for                                                              
it, or  any evidence supporting  a charge  that juries are  out of                                                              
control anywhere.                                                                                                               
4:24:39 PM                                                                                                                    
REPRESENTATIVE  HARRIS  asked  if  the  Department  of  Law  (DOL)                                                              
requested that this legislation be brought forward.                                                                             
MR. HILYARD  specified that  although DOL  has been very  involved                                                              
with  the preparation  of  the  legislation, no  specific  request                                                              
came from  DOL.  As  has been stated  by the sponsor,  the primary                                                              
motivation  for the introduction  of HB  103 was  that it  was the                                                              
request  of a retired  attorney  in Fairbanks  and was related  to                                                              
the sponsor's  personal disposition on  the matter.   Although DOL                                                              
and the Alaska Court  System have been willing to  assist with the                                                              
legislation, they have never offered a position on it.                                                                          
4:25:59 PM                                                                                                                    
REPRESENTATIVE  HARRIS asked  if  this legislation  refers to  any                                                              
type of actionable item against the state.                                                                                      
MR. HILYARD related  his understanding that this  legislation only                                                              
refers  to  civil  torts.    He   pointed  out  that  there  is  a                                                              
distinction in the  Alaska Constitution in Article  1, Section 16,                                                              
which  provides for  jury  trials in  civil  cases.   Furthermore,                                                              
Article  2,   Section  21,   specifies,  "The  legislature   shall                                                              
establish procedures for suits against the State."                                                                              
4:27:01 PM                                                                                                                    
MR. HILYARD  explained that the  process [proposed in HB  103] was                                                              
the  process by  which  actionable claims  were  handled prior  to                                                              
1975,  when  a  relatively  arbitrary   change  was  made  by  the                                                              
legislature in  response to a  controversy with the  University of                                                              
4:27:59 PM                                                                                                                    
REPRESENTATIVE  BERKOWITZ  inquired  as  to  how  many  actionable                                                              
claims against the state would be impacted by this legislation.                                                                 
MR. HILYARD  related his understanding  that on average  somewhere                                                              
between five  to ten such cases go  to trial.  He noted  that it's                                                              
difficult  to track  these cases.   He  related his  understanding                                                              
that the  Alaska Court  System based  its fiscal  note on  roughly                                                              
five  cases.    According  to  DOL,  there  are  approximately  75                                                              
applications  [requesting actionable  claims  against the  state],                                                              
of which 10 percent or less go to trial.                                                                                        
REPRESENTATIVE BERKOWITZ  inquired as to  how many the  state wins                                                              
of the five to ten cases.                                                                                                       
MR. HILYARD  said that  DOL or  the Alaska  Court System  couldn't                                                              
provide concrete  information regarding the amount  of the average                                                              
jury award  and how many cases  [the state] actually  wins because                                                              
of the difficulty in gathering such data.                                                                                       
REPRESENTATIVE  BERKOWITZ said  that he found  it incredible  that                                                              
DOL couldn't  obtain such information  on five  to ten cases.   He                                                              
opined that the  legislature doesn't know what it's  doing nor the                                                              
consequences of enacting HB 103.                                                                                                
4:30:13 PM                                                                                                                    
CHAIR  ROKEBERG expressed  the need  for  such statistics  because                                                              
the legislature  will have to  appropriate the judgment  awards on                                                              
an  annualized basis.    Chair Rokeberg  noted  that  many of  the                                                              
committee members  have other  commitments at  4:30 p.m.  and thus                                                              
he  expressed  his   interest  in  bringing  the   legislation  to                                                              
4:30:43 PM                                                                                                                    
REPRESENTATIVE  BERKOWITZ  moved to  table  CSHB  103, Version  F,                                                              
until the aforementioned information was obtained.                                                                              
CHAIR ROKEBERG objected.                                                                                                        
A  roll  call  vote was  taken.    Representatives  Berkowitz  and                                                              
Kerttula  voted   in  favor  of  tabling  CSHB   103,  Version  F.                                                              
Representatives  Harris,  Coghill,  Kohring,  and  Rokeberg  voted                                                              
against it.  Therefore, the motion failed by a vote of 2-4.                                                                     
4:31:37 PM                                                                                                                    
REPRESENTATIVE  COGHILL  moved to  report  CSHB 103,  Version  24-                                                              
LS0403\F,  Bullock,  4/19/05,  out of  committee  with  individual                                                              
recommendations and the accompanying fiscal notes.                                                                              
CHAIR ROKEBERG  objected, and requested  that the  sponsor provide                                                              
the  earlier  requested  information before  this  legislation  is                                                              
MR. HILYARD said that he would do his best.                                                                                     
CHAIR ROKEBERG withdrew his objection.                                                                                          
4:32:12 PM                                                                                                                    
REPRESENTATIVE HARRIS  objected, and opined that he  would like to                                                              
speak with  the sponsor  on this  a bit more  in depth  before the                                                              
legislation moves  from committee.   He commented that  this could                                                              
be a serious matter.                                                                                                            
4:32:54 PM                                                                                                                    
CHAIR ROKEBERG said  that he wasn't sure that  the committee would                                                              
have time to take up this legislation again.                                                                                    
REPRESENTATIVE  HARRIS withdrew his  objection, but  indicated the                                                              
need  to  speak  with  the  sponsor   before  the  legislation  is                                                              
4:33:36 PM                                                                                                                    
REPRESENTATIVE BERKOWITZ objected.                                                                                              
4:33:48 PM                                                                                                                    
A roll  call  vote was  taken.   Representatives Harris,  Coghill,                                                              
Kohring,  and  Rokeberg voted  in  favor  of reporting  CSHB  103,                                                              
Version   24-LS0403\F,    Bullock,   4/19/05,    from   committee.                                                              
Representatives   Kerttula  and   Berkowitz   voted  against   it.                                                              
Therefore,  CSHB 103(RLS)  was  reported out  of  the House  Rules                                                              
Standing Committee by a vote of 4-2.                                                                                            
4:34:18 PM                                                                                                                    
MR.  HILYARD  noted  that  he  has  been  pursuing  the  requested                                                              
information quite seriously, but has not be able to obtain it.                                                                  
4:34:42 PM                                                                                                                    
REPRESENTATIVE BERKOWITZ  said that he wasn't  questioning whether                                                              
Mr. Hilyard  was trying to  obtain the information,  and suggested                                                              
that perhaps DOL is setting him up.                                                                                             

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