Legislature(2005 - 2006)CAPITOL 106
05/05/2005 08:00 AM House STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| HB28 | |
| SB172 | |
| HB176 | |
| HB273 | |
| SB132 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 28 | TELECONFERENCED | |
| + | SB 172 | TELECONFERENCED | |
| += | HB 176 | TELECONFERENCED | |
| *+ | HB 273 | TELECONFERENCED | |
| += | SB 132 | TELECONFERENCED | |
SB 132-HUMAN RIGHTS COMMISSION 9:50:00 AM CHAIR SEATON announced that the last order of business was SENATE BILL NO. 132(efd fld), "An Act relating to complaints filed with, investigations, hearings, and orders of, and the interest rate on awards of the State Commission for Human Rights; and making conforming amendments." 9:50:02 AM SCOTT J. NORDSTRAND, Deputy Attorney General, Civil Division, Office of the Attorney General, Department of Law (DOL), referred to a prior hearing on SB 132 and stated: The last change that was made here to ... existing law was to provide clarification as to the remedies available to those folks that bring complaints to the Human Rights Commission. ... You may recall ... last year there was some concern that we had removed the term "any appropriate relief" from the bill and then specified certain remedies. There was some concern by the commission and others that that limited the kinds of remedies they could ... make and that ultimately there might be some kind of remedy we hadn't anticipated and put in the bill. What we did was we put "any appropriate relief" back in, and then we listed things. ... We tried to be as comprehensive as possible about the kinds of remedies that courts had allowed, so that folks who come and look at the law can actually have an idea of the kinds of things that they could seek - reinstatements, seniority, back pay, front pay with limits, ... [for example] - because a lot of these folks don't have a lawyer representing them, and this would be helpful to them. MR. NORDSTRAND offered to answer questions from the committee. 9:51:38 AM REPRESENTATIVE GARDNER stated it seems the bill is really attempting to address the fact that the agency doesn't have adequate funding to really do what it is mandated to do in terms of human rights investigations. She stated her concern that this gives the executive director a lot of power once decisions are made and "everything really kind of funnels right there." 9:52:46 AM MR. NORDSTRAND said it is a question of prosecutorial discretion. He mentioned the [Department of Fish & Game v. Meyer] case, which resulted in the supreme court's taking away the prosecutorial discretion of the commission. He read a response of the court as follows: We are sympathetic to the commission's claim of lack of resources .... We recognize that it might be highly desirable for the commission staff to have the power to administratively dismiss cases which have individual merit but no widespread impact. MR. NORDSTRAND added, "But they found that the law didn't allow that." He continued: And what we're saying is: "There is a solid public policy in support of giving the commission that kind of resource." The commission, in that case, basically argued that they had become ... "a complaint-taking agency"; that they didn't have the power to say what was a good complaint, what was a bad complaint, what's worth the time and resources of the state to pursue and what isn't. And in the face of a system that allows the individual to take cases - whatever the merit - to court on their own, it was decided that no matter how many resources you give to this agency, there's going to be a case that's just silly to go forward with. But there's that nub of a fact that would compel under the current law that it go forward. And so, this is a balance. It's no different than, for example, the attorney general's power to decide which crimes are prosecuted in this state. Same idea. ... Not all circumstances that might be prosecuted as crimes are, for various reasons. ... Plea bargains are a function of resource issues, to some degree. And so, this is recognizing that fact. And it's also consistent with, for example, what the [U.S. Equal Employment Opportunity Commission (EEOC)] does. They don't have to take every case. In fact, they take a small number of the cases that are brought to them. So, ... it will allow the commission to spend the time actually actively routing out discrimination, as opposed to becoming, as they argued in the Meyer case, a complaint-taking agency. 9:55:07 AM REPRESENTATIVE GATTO observed that without some sort of limitation, [the commission] would have to accept all complaints. 9:55:43 AM MR. NORDSTRAND said the law does require "some measure of evidence." He added, "But remember the standard is it has to be completely lacking in merit." 9:55:49 AM CHAIR SEATON clarified that Mr. Nordstrand is talking about the current law, "and this would change that so there would be some..." 9:57:21 AM GRACE MERKES, Vice Chair, Alaska Human Rights Commission, said the commission supports [SB 132]. She added that the commission has some concern about Section 4, regarding the review process, but is willing to work with the committee. In response to Representative Gruenberg, she explained that the commission's main concern is [there is no firm guideline as to] "when, or why, or how come we have to review cases." 9:59:38 AM MR. NORDSTRAND, in response to Chair Seaton and Representative Gruenberg, noted that the discretionary language in Section 4 [begins on line 27] and read: The commission, in its discretion, may review the executive director's order of dismissal and may affirm the order, remand the complaint for further investigation, or refer the complaint for conference, conciliation, and persuasion as provided in AS 18.80.110 if it concludes that substantial evidence supports the complaint of an unlawful discriminatory practice. 10:01:39 AM REPRESENTATIVE GRUENBERG suggested the language could read, "may come up with but is not required to". He asked if that would increase Ms. Merkes' comfort level. 10:02:01 AM MS. MERKES said she thinks that would mean the same thing; however, she remarked that it might help the public [perception]. 10:02:06 AM MR. NORDSTRAND proffered that "may" means exactly what Representative Gruenberg has suggested. 10:02:30 AM REPRESENTATIVE GRUENBERG said he is certain that Legislative Legal and Research Services would not have a problem with that language being added and he wants "people to feel comfortable with that." 10:02:58 AM MR. NORDSTRAND, in response to a question from Chair Seaton, said he has no objection to [Representative Gruenberg's] concept. 10:03:05 AM REPRESENTATIVE GRUENBERG moved to adopt Conceptual Amendment 1, as follows: Page 2, line 28: Between "may review" and "the executive director's" Insert ", but is not required to," 10:03:34 AM REPRESENTATIVE GATTO objected to Conceptual Amendment 1. He said he thinks the language is "fairly conclusive the way it is." A roll call vote was taken. Representatives Gruenberg, Elkins, Lynn, and Seaton voted in favor of Amendment 1. Representative Gatto voted against it. Therefore, Amendment 1 passed by a vote of 4-1. 10:05:07 AM REPRESENTATIVE GRUENBERG moved Amendment 2, as follows: Page 2, line 26: Delete "shall" Insert "may" REPRESENTATIVE GRUENBERG explained that he wants to give the executive director discretion. 10:07:26 AM MR. NORDSTRAND said the department would oppose [Amendment 2]. He explained, "Essentially this is the gate keeping function of the act." He said all that is necessary to pursue a case through to hearing is to have a finding of substantial evidence by the executive director. He continued: So, what this would permit is: the executive director found there was not substantial evidence of discrimination, but nonetheless said, "Let's go forward anyway." That would seem to be a difficult policy to (indisc. - overlapping voices). 10:08:00 AM CHAIR SEATON objected to Amendment 2. 10:08:18 AM REPRESENTATIVE GRUENBERG responded, "That's not what the language says." He clarified that the language is "fails to discover", and he explained that "discover" is a term of art. He said, "This is before the discovery stage has begun." 10:08:37 AM MR. NORDSTRAND said the investigation process is a thorough one in which the executive director's agent interviews the complaining party and the lawyer, and receives evidence from the employer and any other party involved. He said, "In fact, there is a delivery of evidence, though it's not tested under oath, and it's not done in deposition." 10:09:21 AM REPRESENTATIVE GRUENBERG, in response to a remark by Chair Seaton, directed attention to page 3, line 31, which he said gives the complainant the right to appear, "with or without counsel". He revealed that he has sat as a hearing examiner before the Human Rights Commission. He said in many cases the agency staff may not have the resources to do the investigation, but the complainant is allowed to participate with or without counsel and can conduct independent discovery, "and this would prevent them from doing that." 10:10:01 AM REPRESENTATIVE ELKINS suggested that the committee hold the bill so Representative Gruenberg can meet with Legislative Legal and Research Services. 10:10:33 AM CHAIR SEATON asked Representative Gruenberg if any of the issues he is raising are substantive House State Affairs Standing Committee issues that couldn't be addressed by the House Judiciary Standing Committee. REPRESENTATIVE GRUENBERG answered no. REPRESENTATIVE LYNN moved to report SB 132, [as amended], out of committee with individual recommendations and the accompanying fiscal notes. [In response to the committee secretary, Chair Seaton clarified that the pending Amendment 2 was now withdrawn]. 10:11:38 AM CHAIR SEATON asked if there was any objection to the motion to move SB 132, as amended, out of committee with individual recommendations and the accompanying fiscal notes. There being none, HCS SB 132(STA) was reported out of the House State Affairs Standing Committee.
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