Legislature(2003 - 2004)
03/30/2004 08:03 AM House STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 132-AG INTERVENE IN NATURAL RESOURCES ACTIONS Number 0360 CHAIR WEYHRAUCH announced that the last order of business was HOUSE BILL NO. 132, "An Act relating to the duties of the attorney general; requiring the attorney general to participate in all actions affecting the management and jurisdiction of the natural resources of the state; amending Rule 24(c), Alaska Rules of Civil Procedure; and amending Rule 514, Alaska Rules of Appellate Procedure." Number 0348 REPRESENTATIVE SEATON moved to adopt the committee substitute (CS) for HB 132, Version 23-LS0541\H, Luckhaupt, 3/25/04, as a work draft. CHAIR WEYHRAUCH objected for discussion purposes. He noted that Version H included changes suggested by the testifiers from the Office of the Attorney General at the prior hearing of HB 132 [on 3/24/04]. Chair Weyhrauch indicated that paragraph (10), under the old bill, was moved [in part] under paragraph (7), and a new [subparagraph (C)] was created so that the legislature would know about these cases. He continued as follows: And then there's both a substantive discussion that took place or a political debate that could take place between the ... executive branch and the legislative branch, to get the attorney general to involve itself in these cases if the legislature felt it was important enough to do so, either [through] a political process, discussions with the attorney general or the executive branch, or through passage of a resolution. CHAIR WEYHRAUCH asked a representative of the Office of the Attorney General what the department's position might be regarding Version H. Number 0225 DAVID W. MARQUEZ, Chief Assistant Attorney General, Legislation & Regulations Section, Office of the Attorney General, Department of Law, in response to a question from Chair Weyhrauch, stated that the department has no objection to the bill as restructured in [Version H]. CHAIR WEYHRAUCH revealed that he had asked the Alaska Bar Association to look at "this provision," and they did not perceive any problem with it, either ethically or substantively. He told the committee members that they would find a copy of the e-mailed response from Steve Van Goor of the [Alaska Bar] Association in the committee packets. Number 0176 REPRESENTATIVE SEATON turned attention to the language added to the bottom of page 2, beginning on line 31, and continuing to page 3, line 1, which read as follows: , or (2) the state's management or jurisdiction of the natural resources of the state may be affected, REPRESENTATIVE SEATON asked if that would include all "fish and game-related cases." He clarified that he meant cases where there's any challenge to the management. He said he doesn't think that's the intent of the bill, but he just wants to make sure. CHAIR WEYHRAUCH responded that there are many issues related to the business end of a fishing activity, which result in a management decision but have to do more with a contractual issue related to the harvest. He stated that disputes related to fishermen or other practical applications of a fishery would not be the kind of disputes "this amendment envisions." He said, "Instead, it would be whether the state - the actual management or jurisdiction of the resource, which is a plenary function of the state under our constitution - would be an issue." TAPE 04-51, SIDE A Number 0048 MR. MARQUEZ, in response to a question from Representative Seaton regarding the aforementioned language added in Section 2, explained that litigants will be the ones creating the notice, so it's possible that more notices would be filed and given to the attorney general. He stated that the Office of the Attorney General has limited resources and there may be a lot of notices given that won't present the right facts or will be about a different type of dispute. He noted that the office has very rarely gotten into disputes of private litigants. He stated that he is not too worried about the wording of [Section 2], because the office will still have discretion [over] which suits it will (indisc.). Number 0112 CHAIR WEYHRAUCH told Representative Seaton that Version H added the word "state's" from the original bill to make it clear that it was the state's management and jurisdiction that was an issue. He continued as follows: Also, when you have an allocation dispute or a decision by the Board of Fisheries that's subject to litigation, the State of Alaska, the Board of [Fisheries], or the commissioner is always named as a party. So, the state - as a matter of law - ... would have notice of that case. So, any time there's any conservation, or development, or management dispute involving a Board of [Fisheries] action, it is the state at issue, and the state would absolutely have to give notice or have to be joined as the real party and interest in the case. Number 0166 REPRESENTATIVE GRUENBERG noted that "this sentence" is hidden in the Civil Rule, and very few practitioners are aware of that. He brought attention to Rule 24(C), and he offered his understanding that it is in regard to intervention. Number 0300 REPRESENTATIVE GRUENBERG moved to adopt Amendment 1, which read as follows [original punctuation provided]: Page 2, line 31: Between the words "interest" and "is" insert "or the constitutionality of a regulation or executive order affecting the public interest" CHAIR WEYHRAUCH objected for discussion purposes. Number 0330 MR. MARQUEZ, in response to a question from Representative Gruenberg, said that he thinks that Amendment 1 would be helpful and would bring notice to the Department of Law, "not only the constitutionality of a statute, but also the constitutionality of a regulation of executive order." He said the current committee substitute would not impose a burden on the attorney general; the state wouldn't necessarily have to intervene as a party. He added, "But it would provide additional notice." He continued as follows: Of course, at some point, it's difficult to tell what the volume would be, and at some point one could get overwhelmed by data. ... The original legislation certainly seemed to be targeted at natural resources issues, so I'll leave to the committee - the target. But we would have no objection to the amendment. Number 0398 CHAIR WEYHRAUCH restated his objection to [Amendment 1]. He said [Amendment 1] is so broad, which would create a much more cumbersome process, as opposed to the narrow requirement. CHAIR WEYHRAUCH referred to Representative Gruenberg's previous statement regarding a part of law that few practitioners know about. Conversely, he stated, "It's an area of law that many practitioners know about who regularly intervene in cases affecting fisheries." He offered examples. He stated that intervention is a powerful tool to use in many procedures. He noted that it's not used much in context with family law. However, in the area of natural resource law, any time there is a private party versus a public entity, all kinds of interests are affected potentially, "and they jump into that case through the intervention process if ... their interests are not being represented by existing litigants." He noted that Representative Gruenberg had, during a previous hearing, discussed amending "the title of the rule in (C)," under procedure and management and jurisdiction of resources. He indicated that that would be preferable to [Amendment 1]. REPRESENTATIVE GRUENBERG explained that the reason he didn't "put that one first" is because he wanted to see what the title should say. He reiterated that he thinks many practitioners are not aware that they have to notify the attorney general. He said [Amendment 1] is not complex, but simply would be a notice to the court for a request to notify the attorney general. He said it's important because, without it, unless the court is sharp enough to "pick it up," which it might not do until the briefing is almost completed on an issue, it may delay the litigation. REPRESENTATIVE GRUENBERG said, "I put everything in this amendment I could think of." He clarified there are two issues: executive orders, which he said are probably seldom litigated between private parties, and regulations. He said there are not too many regulations in the field of family law, but there are in other areas of law. He added, "The question of their legality and constitutionality, I think, comes up occasionally." He stated, "I think it's kind of important that the attorney general be notified in these cases." Number 0685 REPRESENTATIVE SEATON said he could understand if the constitutionality of an executive order or regulation was being challenged, but [Amendment 1] also includes the legality of a regulation or executive order. He stated that means if a regulation is challenged as violating a statute, "then we have to challenge it as well." He said it seems to him that the scope is being broadened tremendously. REPRESENTATIVE GRUENBERG suggested that the amendment could say "at least the constitutionality of a regulation". Number 0768 CHAIR WEYHRAUCH responded that he has a problem with that, because "it's already in there when the constitutionality of a state statute affecting the public interest is in question." He clarified that there's always an agent of the state that's generally named in these kinds of cases. He stated, "So, I think your amendment is subsumed in the rule already." Number 0817 REPRESENTATIVE GRUENBERG withdrew Amendment 1. REPRESENTATIVE GRUENBERG moved to adopt Conceptual Amendment 2 on page 3, lines 9-11, to "break that final sentence out into a new subsection with a new title." Number 0872 REPRESENTATIVE HOLM brought attention to page 1, [lines 7-9], which read as follows: (b) The attorney general shall (1) defend the Constitution of the State of Alaska and the Constitution of the United States of America; REPRESENTATIVE HOLM stated his opinion that the attorney general has a duty to the State of Alaska first, and the Constitution of the United States second, because of sovereignty. He said he wondered if, by putting the two on the same line, that would result in an untenable situation. He said it seems to him that in the past there have been instances where the attorney general has chosen not to pursue sovereignty issues within the state and the legislature has not been given standing. He questioned where the allegiances should be and whether or not the legislature, through this type of demand of the attorney general's office, isn't trying to exercise a requirement for the attorney general's office to intercede on behalf of the people of the state. He said, "I think the appeal process, when that went forward, that said that the legislature did not have standing, is erroneous, ... and that somehow we have to have the opportunity as a state to demand that our administrative component ... have a ... first duty to protecting the state's sovereignty and a second duty to the United States constitution." Number 1004 CHAIR WEYHRAUCH said there is a conflict between the policies of the state and the U.S. government, and generally the courts have deemed that the executive branch speaks for the state in enforcing the law in bringing litigation and making litigation decisions on behalf of the state. He noted that that has frustrated legislatures in the past when they have attempted to intervene or gain standing on cases it thinks is important, but that the executive branch thinks is not. Number 1048 REPRESENTATIVE COGHILL said he would like to pass the bill "as is." He suggested that the House Judiciary Standing Committee could deal with matters regarding the history of the court rules. Number 1071 CHAIR WEYHRAUCH indicated that he would prefer that [the bill be moved without Conceptual Amendment 2]. Number 1080 REPRESENTATIVE GRUENBERG said, "All right." [Conceptual Amendment 2 was treated as withdrawn.] Number 1090 REPRESENTATIVE COGHILL moved to report CSHB 132, Version 23- LS0541\H, Luckhaupt, 3/25/04, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 132(STA) was reported out of the House State Affairs Standing Committee.
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