Legislature(2003 - 2004)
05/05/2004 09:03 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
SB 354-HUMAN RIGHTS COMMISSION PROCEDURES Number 1588 CHAIR WEYHRAUCH announced that the next order of business was CS FOR SENATE BILL NO. 354(STA) am(efd fld), "An Act relating to complaints filed with, and investigations, hearings, and orders of, the State Commission for Human Rights; and making conforming amendments." Number 1600 LISA FITZPATRICK, Chair, Human Rights Commission, Office of the Governor, testifying on behalf of the commission, stated that the commission opposes the language of Section 6 - the provision that provides the remedies that the commission can order when a legal discrimination has occurred - because it would take away the tools the commission needs to do its job. MS. FITZPATRICK mentioned a recent celebration of the 40 years that the commission has been in existence. She noted that discrimination is just as alive today as it was 40 years ago. She gave examples of discrimination and said there is a continuing need to eliminate discrimination in Alaska. She opined that the bill would encroach on the commission's ability to do its job. MS. FITZPATRICK noted that, under current law, the commission has the authority to order any appropriate relief when discrimination has occurred. She clarified that appropriate relief isn't extraordinary relief, doesn't include punitive damages, and doesn't include compensating the person for his/her pain and suffering. She stated, "The whole premise of human rights laws is simply: Let the individual back in the situation they would have been in had the illegal discrimination not occurred." She noted that the majority of the cases handled by the commission are regarding discrimination in the workplace; therefore, the remedies that are relevant to workplace discrimination are particularly important. MS. FITZPATRICK noted that the bill would allow the commission to order "training of the employer for discriminatory practices" and for the reinstatement or upgrading of an individual who has been discriminated. It would authorize the award of front pay for one year. She said the bill doesn't take into account so many types of relief that the commission - and commissions around that country - have been historically empowered to award. She offered examples. Number 1800 MS. FITZPATRICK explained that back pay compensates an individual for the loss of pay, retrospectively, while front pay - which is rarely awarded - pays an employee prospectively when, for whatever reason, it's not possible to restore the discrimination by restoring the individual to the situation that he/she would have been in before the discrimination. She offered examples. She noted that the bill would [allow for] an award for a period of one year's front pay. She stated that the commission opposes the one-year limitation and would prefer a bill with no limitation on it, because "every situation where it's used is unique." She noted that there has never been a complaint that the commission has abused its discretion in this regard, and she questioned the reason for the change. Number 1883 MS. FITZPATRICK said she has heard the argument made at previous committee hearings that it's important that individuals know the scope of relief that can be awarded against them. She stated the fact is that people do [know]. She reiterated that the idea is to put the individual back in the position he/she would have been in without the discrimination. She said, "Because this can be so fact-dependent, it's extremely difficult to create an all- purpose list. But, if you have an individual and you have not given them a raise as a result of their being a black person, ... a woman, or disabled, then you can reasonably anticipate exactly what kind of relief ... could potentially be ordered against you." MS. FITZPATRICK noted that a second argument heard is that victims of discrimination could just take their cases to court. She explained that that is not a realistic alternative for people. She indicated that she doesn't know why it would be preferable to ship the people over to the court's calendar when there is an agency [to deal with these issues]. Furthermore, she stated that it is not practical to send people to the courts. She explained that the average value where the commission has found that there's substantial evidence to proceed is $5,800. She said there is no economic incentive for a lawyer to take the case and proceed to court with it. She said, "Individuals cannot go to small claims court, because, by statute, the original jurisdiction for these cases lies in the superior court. And that is a world apart from both the commission and from the small claims court forum." MS. FITZPATRICK estimated 450 cases are processed, and the vast majority of those cases "settle out." She said most of the cases are small dollar settlements; however, in the "cases of higher value," probably only about 20 percent of the employers are represented by attorneys. She said that "this is a very informal sort of a process," which gives people relief. She stated that it doesn't give people anything beyond their restoration to their position before the discrimination, but it serves an incredibly valuable function - both society as a whole and individuals. She said it pains her to consider that a bill has been introduced which could turn back the hands of time on discrimination law by taking away the tools the commission needs to do its job and to protect the public. Number 2038 REPRESENTATIVE BERKOWITZ noted that the legislative intent section [in current statute] regarding the Human Rights Commission says that the statutory scheme is "to seek out and eradicate discrimination in employment, in credit and financing practices, in places of public accommodations and in the sale, lease or rental of real property." He asked if SB 354 would compromise the ability of the Human Rights Commission to carry out the legislative intent. MS. FITZPATRICK answered yes. Number 2080 REPRESENTATIVE BERKOWITZ moved to adopt Amendment 1, which read as follows [original punctuation provided]: Page 2, line 26 Delete "in the executive director's discretion" Insert: "with the concurrence of the commission" REPRESENTATIVE LYNN objected. REPRESENTATIVE BERKOWITZ said Amendment 1 would ensure that there are some checks and balances involved in the process. He said it would make sure that if an executive director is going to get rid of a case, it is done with the commission's concurrence. CHAIR WEYHRAUCH suggested that the executive director could send letters to the commission members to which they could reply. There wouldn't necessarily have to be an affirmative concurrence of the commission by a vote, for example. He asked Representative Berkowitz if he agrees that "this is sort of broad to allow the commission to do its business in lots of different respects." REPRESENTATIVE BERKOWITZ agreed. He explained that if it's not particularly onerous for the director, he would actually prefer that one person not have the authority to dismiss cases, without the concurrence of others. Number 2143 REPRESENTATIVE SEATON commented that "that's in line with testimony that we had the other day." REPRESENTATIVE COGHILL said he would like to hear from the department. Number 2158 SCOTT J. NORDSTRAND, Deputy Attorney General, Civil Division, Office of the Attorney General, Department of Law, said the department drafted the bill to allow the discretion in the executive director. He offered his understanding that the commission supports "the current text." He said [Amendment 1] would require the commission to "do concurrence," and he said he understands that the commission does not support [Amendment 1]. He noted that Ms. Fitzpatrick had indicated that [the commission] prosecutes Human Rights Act violations for the state. He said that in the context of a criminal case, [the department] gives the district attorney's office - and ultimately the attorney general - the authority to decide which cases to bring, based upon the needs of the office and the evidence that's available. He emphasized that [the department] does not ask for the concurrence of the court, at that point. He compared asking for concurrence of the commission to asking for concurrence of the court. Number 2215 REPRESENTATIVE BERKOWITZ stated that it's not absolutely the case that prosecutors have absolute discretion to "not charge." He said there are some profound policy requirements [to meet] before cases can be dismissed. He noted that there's a great body of law that has to do with prosecutorial discretion and the abuse of prosecutorial discretion. He said the courts and the executive branch do intrude on how prosecutors charge. He concluded, "And that analogy, I think, is a propos in this case, because we're saying if we don't want a single individual with absolute discretion over whether to pursue or not pursue cases." Number 2247 MR. NORDSTRAND responded that the whole process of the Human Rights Commission charges the executive director with the responsibility for investigating the cases. He said: This person has the sole authority to determine whether there is 'substantial evidence,' which is the gate that opens that allows someone to even get to the commission. So, to somehow say that the executive director would have too much power with this, when in fact they are the ones themselves to make the determinations without the commission on whether or not there's a substantial evidence finding that would allow anyone to even ever get to a hearing - it seems to me it's six to one or half dozen of another. Number 2273 REPRESENTATIVE COGHILL indicated that the concern that is being addressed is that in the process of making a complaint, a complainant may be left without some recourse or "some due process beyond this." He asked Mr. Nordstrand if he could give him some comfort that if [Amendment 1] fails that that [would not happen]. MR. NORDSTRAND responded that if the executive director chooses not to pursue a case, the recourse for the person is to go to court; however, the recourse in the Human Rights Commission would end. He clarified that the process of providing a free attorney to represent the person to go forward through a hearing process and, ultimately, to a decision by the commission would end. REPRESENTATIVE COGHILL said he wonders if having the commission "review these things" doesn't give the complainant at least some comfort that he/she will be heard. He asked, "Can you give me some reason that that shouldn't happen?" MR. NORDSTRAND answered, "It certainly could happen. We believe that it's ... more appropriate for the executive director to make that decision, because the executive director has the information necessary to make that decision. He said he thinks people may be under the assumption that the Human Rights Commission actually hears cases as a body that listens to testimony. He said that's not the fact. He said, "What happens is these cases are heard before ... contract hearing officers that are hired - lawyers that are hired for $100 an hour to hear the case. They hear all the evidence; they evaluate all the evidence; they write the decisions; they send a recommended decision to the commission; the commission then considers it." He said to ask volunteer member of the commission board to substantively evaluate every dismissal that's made is a big challenge. He said, "We have to ask whether a voluntary commission can do that." REPRESENTATIVE COGHILL asked if the executive director is held to a protocol. TAPE 04-79, SIDE B Number 2382 REPRESENTATIVE COGHILL explained that the reason he is pursuing this line of questioning is because the issue of having significant power vested in the executive director "begins the whole argument of the remaining amendments." CHAIR WEYHRAUCH asked if Representative Coghill is maintaining his objection. REPRESENTATIVE COGHILL said he still wants an answer regarding a protocol or body of law that would compel the executive director or hold the executive accountable, such as a district attorney might be. Number 2345 MR. NORDSTRAND responded that the statute that is being proposed in Section 4 provides that the executive director may dismiss cases in accordance with a list of criteria at the executive director's discretion. He explained that would mean that that decision would be subject to review in the courts for an abuse of that discretion. So, if someone could establish that the director had, for some inappropriate reason, dismissed the case and had not done it meaningfully, accurately, and correctly pursuant to the list of criteria, then the court could reverse the decision and it would be an abuse of discretion situation. Number 2322 REPRESENTATIVE GRUENBERG mentioned Wagstaff v. Superior Court. In that case, he noted, the superior court said it could not review a decision whether or not to prosecute a case, because that was a violation regarding separation of powers. He stated that there may be "internal things that govern whether a case can be reviewed or not." The question of judicial review is highly circumscribed by the separation of powers doctrine in that case. He offered his understanding that there are other cases, as well. Number 2282 MR. NORDSTRAND replied that that may be the case, although he is not a criminal lawyer and does not profess to be one. He said: But, in the case of administrative law, which is what we're talking about here, where a ... representative of an administrative agency takes an action that would violate in some way the statute, and thereby abuse the discretion given under the statute, I would argue that, in fact, the courts do have the power to address whether that ... discretion were abused. REPRESENTATIVE GRUENBERG said he thinks Mr. Nordstrand should "really check that out," because he does not think it would be an abuse of discretion standard, but is a constitutional separation of powers standard. He emphasized that that's an important difference. Number 2233 A roll call vote was taken. Representatives Berkowitz, Gruenberg, Seaton, and Weyhrauch voted in favor of Amendment 1. Representatives Lynn, Holm, and Coghill voted against it. Therefore, Amendment 1 was adopted by a vote of 4-3. Number 2210 REPRESENTATIVE BERKOWITZ moved to adopt Amendment 2, which would delete paragraphs (4), (6), (8), and (9), on page 3, lines 2, 5, 7, and 8, and renumber accordingly. [Amendment 2, as submitted to the committee read "subsections" where it should read "paragraphs".] REPRESENTATIVE HOLM objected. REPRESENTATIVE BERKOWITZ explained that the criteria by which the executive director "in now the commission" would dismiss complaints is overbroad and, in some ways, is a deprivation of due process. He said one of the criteria he wants eliminated is from paragraph (4), which would allow a determination by the executive director that "a hearing will not benefit the complainant". He said that is paternalistic and he doesn't know what that means. Paragraph (6) would be deleted by Amendment 2; it pertains to a determination by the executive director that "a hearing will not represent the best use of commission resources". Representative Berkowitz remarked, "Well, under that criteria, ever the most deserving of cases - if they might tax the resources overmuch to the exclusion of, for example, other cases - could be thrown out because they don't want to take the hard cases that, in fact, might be most in need of attention." REPRESENTATIVE BERKOWITZ turned to paragraphs (8) and (9), the last two paragraphs which he proposed to delete through Amendment 2. Paragraph (8) would allow a determination by the executive director that "the probability of success of the complaint on the merits is low", while paragraph (9) would allow a determination by the executive director that "proceeding to a hearing will not serve the public interest". Regarding paragraph (8), Representative Berkowitz said, "If you believe that everyone deserves their day in court, then you shouldn't be in a position where the court looks at you and says, "We're tossing you out before we get you, because we don't think you're going to prevail. That's prejudging the evidence, and I think that is ... an unfair way for any branch of the justice system to work. We do not prejudge evidence." Regarding paragraph (9), he said the public interest is determined in AS 18.80.200, and [paragraph (9)] is "an overbroad description and gives too much authority." He added that it frankly is an intrusion on the legislative authority that is enshrined in statute. Number 2124 MR. NORDSTRAND stated that the department thinks that the four provisions [that would be deleted by Amendment 2] give latitude to the executive director to do what the federal Equal Employment Opportunity Commission (EEOC) does. He explained that the EEOC has similar jurisdiction and "remedies available," and it proceeds with cases that "it chooses to believe are the most important, the most egregious, [and the most] significant." He said that, unlike the Human Rights Commission, if the EEOC wants to bring a complaint, it has to "go downtown to the federal courthouse and file a complaint in federal court and proceed forward, with a few exceptions." He stated, "We're trying to describe discretion here and ... obviously it's ... intended to be an inclusive list." He offered the example of the issue of resources, which he said is a serious issue for the commission. He continued as follows: The way the thing is set up now - with the substantial evidence test and the low standard for a substantial finding of a discrimination, combined with the fact that there's no process to ... end claims for summary judgment or any other summary proceeding prior to hearing - essentially, if you have the merest smidgeon of evidence of discrimination, you get a hearing. And that has essentially brought the system ... -- they're certainly working more quickly than they have, but year's past it took years to get to a hearing, because of all the cases that were stacked up. And so, we think that the merits (indisc.) is a good standard. I mean, ... any good lawyer would look at a case and say, "Are we going to win, or is this a waste of time? Is there really enough evidence here to win this case?" And if that's not the case, then government resources need not be used to pursue the case. Again, all of these folks will have the same remedy everyone else does to go to the courts, should they choose to, with any other kind of claim. But it's just these specialized discrimination claims that have access to the Human Right Commission. That's a good thing - that should be there - but we ... I think as a policy matter ought to be able to say which cases are the most significant to take to hearing, and which are not. And this gives them that power. Number 2023 REPRESENTATIVE BERKOWITZ responded that he is troubled by what Mr. Nordstrand said, because the purpose of alternative ways of pursuing justice is to make justice more affordable and available. He said, "If you're saying that, because we don't want to pay for it at the administrative level people now have to shell out money to go to court, what you're doing is you're putting more of a burden on the court system. You're making it harder for individuals to seek regress in a nonconfrontational way ..., and I just reject that." He said "this" would add costs to the court system if done incorrectly and would deprive people of the chance to pursue the justice they think they need. Number 1999 REPRESENTATIVE HOLM stated, "I think that flies in the face of what the courts ought to be doing, and that is making decisions about frivolous law suits and frivolous circumstances." He asked Mr. Nordstrand to discuss the balance that should be exist between accusation and justice when someone has truly been [discriminated against]. He said it seems to him that that's where the balance is and the assumption would be made that an [executive] director would "get the information at hand" to decide whether [a case] should go forward to some causation. He said it's easy to "spout out" and say that the intent is to look for justice, but he pointed out that the accused deserved justice as well. He stated, "I'm trying to find that middle ground and I think I tend to err on the side of having somebody oversee it first, just to make that decision." MR. NORDSTRAND said the department's view of the system is that it's designed to provide a fair outcome to all of the parties that appear before it. He confirmed that there are lots of cases that sometimes are brought repetitively by the same people who have grievances that they want to play out in the Human Rights Commission "or other forum like this." He said, "Now, that's not to say there aren't lots and lots of very deserving cases that need the commission's support ... [and action]." He clarified, "What we're saying is, if they can focus better their resources and their efforts on those cases, then I think that we will have a better system overall." Regarding the process, he asked the committee to remember that there's a cost associated with taking every case to hearing. The commission doesn't want to do that. The Department of Law represents the commission in cases where the executive director finds no substantial evidence and the case gets appealed. He said, "Well, the superior court - now based upon the decision we've talked about ... - they reverse it and tell the commission, 'Sorry, you've got to go to hearing on this case.'" He clarified that he is talking about cases that did not even make the substantial evidence test which are being required to be heard. He said that's just not a good use of resources and he thinks the commission would agree with that entirely. REPRESENTATIVE BERKOWITZ asked if the committee could hear from a representative of the commission. Number 1865 MS. FITZPATRICK said the commission is under tremendous monetary pressure due to a backlog in processing cases, and there are cases that the commission believes should be dismissed. She said [the commission] went from a staff of 22 to a staff of 15, within the last several years, and she estimated that the current backlog is 80 cases - a number that is growing. She noted that the backlog was down to zero a couple of years ago because of additional funding, but now that the funding is gone, the commission is struggling once again to keep up with the caseload. MS. FITZPATRICK offered an example of a case that might be dismissed under [paragraph (4)]: She said there was a case where an individual was offered by his/her employer all of the relief that he/she would be entitled to at the hearing, but the individual somehow wanted something more. Under those circumstances where the commission views that the individual has received all of the benefits that would make them whole, it believes it has to push its resources on to other cases. Because of the fiscal problems the commission faces, it cannot simply prioritize cases, because then people's cases just languish if they're not top priority. She concluded, "So, we believe that this language would actually benefit the commission." Number 1765 REPRESENTATIVE SEATON asked if the case to which Ms. Fitzpatrick referred wouldn't have been covered under [paragraph (1), on page 2, lines 27-28, which read as follows]: "(1) the complainant's objection to a proposed conciliation agreement is unreasonable;". CHAIR WEYHRAUCH announced his intent to hold SB 354, return to SB 231, recess to a call of the chair, and address SB 354 when the committee reconvenes. MS. FITZPATRICK offered to speak to "staff" [regarding Representative Seaton's question] during the recess. [SB 354 was heard and held. The motion to adopt Amendment 2 was left pending.]
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