Legislature(1995 - 1996)

03/26/1996 08:10 AM Senate FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
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  CS FOR HOUSE BILL NO. 468(FIN) am                                            
                                                                               
       An Act making supplemental  appropriations for the                      
       expenses  of  state  government  and  making   and                      
       amending appropriations;  ratifying certain  state                      
       expenditures; and providing for an effective date.                      
                                                                               
  Co-chairman  Frank  directed  that the  FY  96  supplemental                 
                                                                               
                                                                               
  budget  be  brought   on  for  discussion  and   asked  that                 
  representatives of  the administration  speak to  department                 
  requests.                                                                    
                                                                               
  Dept. of Law                                                                 
                                                                               
  BARBARA RITCHIE,  Deputy Attorney  General, Civil  Division,                 
  Dept. of Law, came before committee.  She explained that the                 
  $369.3 request under Sec. 9(a)  would fund various judgments                 
  and claims against the state that accumulated over the year.                 
  NANCY  SLAGLE,   Director  of  Budget   Review,  Office   of                 
  Management and Budget, noted that the $369.3 includes $144.0                 
  in  judgments  plus   $225.3  for  a  settlement   from  the                 
  international  airport  revenue  fund,  relating  to  safety                 
  officers at the Anchorage International Airport.                             
                                                                               
  Mrs. Ritchie  next described  the class  action against  the                 
  City of Kodiak and  the state over conditions at  the Kodiak                 
  Jail--a community jail  under contract to  the state.   This                 
  case,  which  has  been ongoing  over  five  years, involves                 
  complicated questions of  confinement.  Additional questions                 
  related to state  liability for  a city-operated jail  under                 
  contract to hold state  prisoners.  The state won  a partial                 
  summary judgment clarifying  that the  Cleary case does  not                 
  apply to community jails.  In the settlement, the state paid                 
  25 percent of awarded attorney fees of $104.0 and $2.0.  The                 
  City of Kodiak paid the remaining 75 percent.                                
                                                                               
  Senator Sharp asked  if Alaska Legal Services  was funded by                 
  the state.    Mrs. Ritchie  explained that  it is  primarily                 
  funded  by   federal  appropriations.     However,   it  has                 
  historically received some state funding via grants  through                 
  community  and regional  affairs.   Senator Sharp  suggested                 
  that the $27.0 award  for attorney fees be removed  from the                 
  supplemental.                                                                
                                                                               
  Mrs. Ritchie explained that the State v. Meyer case involved                 
  a  sexual discrimination  appeal  filed  against the  Alaska                 
  Dept.  of  Fish  and  Game  and  the   Alaska  Human  Rights                 
  Commission in March of 1987.   Both the superior and supreme                 
  courts ruled in  favor of Ms.  Meyer and ordered that  court                 
  costs and attorney fees of $1,148.25 be paid by the state.                   
                                                                               
  LAURIE  OTTO, Deputy  Attorney  General, Criminal  Division,                 
  Dept.  of Law, explained that Durham v. Kincheloe relates to                 
  Cleary.  The  plaintiff sued saying it  was unconstitutional                 
  under a U.S. Supreme  Court case to require that  the inmate                 
  take psychotropic medication.  The  state argued that Cleary                 
  provisions were controlling.  The  court disagreed and found                 
  that   state   procedures  for   administering  psychotropic                 
  medicines against an  inmate's will did not  comply with the                 
  U.S. Supreme Court  mandate.  The state  voluntarily rewrote                 
  its policies  and procedures to  comply.   It was,  however,                 
  required to pay the plaintiff's attorney fees for litigating                 
                                                                               
                                                                               
  the issue.                                                                   
                                                                               
  Discussion followed regarding the function of the disability                 
  law center.   Ms.  Otto noted  that in the  Durham case  the                 
  inmate had  a severe mental illness.  Senator Randy Phillips                 
  asked that  the  department  determine  whether  the  center                 
  receives state appropriations.                                               
                                                                               
  Senator Rieger  voiced  his understanding  that  the  Cleary                 
  settlement  was in conflict with  the U.S. Constitution.  He                 
  then asked if the  department has the ability to  revise the                 
  settlement  without a separate  court order.   Ms. Otto said                 
  the  final  order  in  Cleary  spells  out  a  procedure for                 
  administering  psychotropic  medicines  against an  inmate's                 
  will.    The U.S.  Supreme  Court  issued an  opinion  which                 
  conflicts  with  Cleary.    The  U.S.   Constitution  always                 
  controls over an  order of a lower court.  It is possible to                 
  litigate whether  or not  certain provisions  of the  Cleary                 
  final  order are unconstitutional.   It is more difficult to                 
  re-litigate  other portions of it, although re-litigation is                 
  possible.   The fact  that a  portion of  the settlement  is                 
  found to be deficient does not negate the remainder.                         
                                                                               
  In  response to  a  question from  Senator  Sharp, Ms.  Otto                 
  explained  that  an  employee of  the  Dept.  of Corrections                 
  (Kincheloe)  was  sued  in  his  official  capacity  as  the                 
  superintendent of  the  institution  where  the  drugs  were                 
  administered.  The  original request  for attorney fees  was                 
  $65.0.  The department was able  to negotiate a reduction to                 
  $45.0.  The fees will accrue to the disability law center.                   
                                                                               
  Attorney fees in  the amount of  $1,219.0 in CSED v.  Allsop                 
  reflect  an  Alaska  Supreme  Court  award.    Mrs.  Ritchie                 
  explained that as a result of statutory changes, these types                 
  of  cases will disappear.  The  instant case involved CSED's                 
  role in dis-establishment of paternity.  Statutory revisions                 
  now   allow   the   division   to  dis-establish   paternity                 
  administratively.   Discussion  of particulars  of the  case                 
  followed.                                                                    
                                                                               
  Senator Rieger noted indications that attorney fees had been                 
  reduced by 80 percent and asked  who would bear that portion                 
  of the cost.  Mrs. Ritchie replied  that it would have to be                 
  paid by Mr. Allsop.  Senator  Rieger stated his concern that                 
  it appears the  defendant will be made  to bear the cost  of                 
  setting the record straight.  Mrs. Ritchie stressed that one                 
  reason the case  was pursued was  to clarify CSED's role  in                 
  these cases and  obtain a  definitive ruling.   The law  has                 
  since been corrected.   Co-chairman  Halford concurred  that                 
  the individual  should not be  made to  pay the cost  of "an                 
  impossible case where the state was wrong."                                  
                                                                               
  Mrs. Ritchie explained that in the case of City of Fairbanks                 
  v.  State   Dept.  of  Labor  (Workers'   Compensation)  the                 
                                                                               
                                                                               
  $2,838.62 in  attorney fees  and costs  of $525.17 would  be                 
  paid  to the office of the  city attorney in Fairbanks.  The                 
  case involves the Workers' Compensation  Board denial of the                 
  city's  application  for  self-insurance.    When  the  city                 
  appealed, the  superior court  reversed the  board decision.                 
  The city moved for  full attorney fees and was  granted half                 
  by the court.  The Dept. of Law has subsequently worked with                 
  the   Workers'   Compensation   Board  regarding   different                 
  regulatory   requirements,   between   public  and   private                 
  entities, for determining eligibility requirements for self-                 
  insurance.                                                                   
                                                                               
  The $42,855.00 payable  to Trustees for  Alaska in the  suit                 
  against the Dept. of Natural  Resources involves a challenge                 
  to state best interest findings for a particular oil and gas                 
  lease sale on behalf of the  trustees, the city of Kaktovik,                 
  and  numerous environmental  organizations.     The  supreme                 
  court remanded  best interest  findings to  DNR for  further                 
  findings.    As  the  prevailing  party, the  trustees  were                 
  granted attorney  fees in both  the superior court  case and                 
  the supreme  court appeal.   Fees  in the  appeal have  been                 
  paid.  This claim is for  superior court fees.  The trustees                 
  charged that  DNR did not give adequate consideration to the                 
  environmental risks  of transporting oil from  the off-shore                 
  lease area to  market.   Litigation has  helped clarify  the                 
  scope of  best interest findings  and the required  depth of                 
  analysis to  support findings  in future lease  sales.   The                 
  state prevailed  on all  issues before  the superior  court.                 
  The trustees prevailed on two issues upon appeal.  The state                 
  objected  to attorney fees  and costs at  both court levels,                 
  arguing that fees should be reduced  to reflect only work on                 
  the two issues  on which the trustees  ultimately prevailed.                 
  Both courts awarded  the trustees  substantially all of  the                 
  fees   they  requested.     Senator  Sharp   suggested  that                 
  deductions be made in the court  budget to cover the awarded                 
  fees.                                                                        
                                                                               
  The $11,829.76 payable to the disability law center in Weiss                 
  v. State  represents interim  costs and  fees following  the                 
  1985 supreme court decision in the mental health trust lands                 
  case.  The court found that the state breached the  trust by                 
  redesignating  trust  lands.   On  remand the  court awarded                 
  these interim costs and fees to  the plaintiff.  Co-chairman                 
  Frank asked for a breakdown of all attorney fees paid in the                 
  case and who the  payments were to.  Senator Sharp  asked if                 
  the  state expects continuing expenses  from the case.  Mrs.                 
  Ritchie  noted that  the merits  case on  the mental  health                 
  trust  appeal  is  pending  before  the  supreme court.    A                 
  briefing schedule was recently issued.   Briefing will occur                 
  through  summer  and into  fall.   There  are 180  points on                 
  appeal.  Mrs.  Ritchie said she would  provided a memorandum                 
  updating the status of litigation.                                           
                                                                               
  Senator  Rieger  inquired   concerning  particulars  of  the                 
                                                                               
                                                                               
  $261.00 payable  in CSED  v. Bond.   Mrs. Ritchie  explained                 
  that the award of attorney fees  stems from a paternity suit                 
  which questioned whether Rule 82  fees should apply to  CSED                 
  paternity cases.  The court  ruled affirmatively and limited                 
  the  fees to the Rule 82 amount.   The defendant sought full                 
  fees.                                                                        
                                                                               
  Senator  Rieger  noted  that  a  review of  judgment  awards                 
  indicates that private  individuals who  sue the state  "get                 
  pennies"  compared to agencies in  the business of suing the                 
  state.    The pattern  in  award  of attorney  fees  appears                 
  backward.  Mrs. Ritchie suggested that greater fees indicate                 
  greater  complexity  and substantially  more  attorney time.                 
  CSED cases tend to  be single issue.  Mrs.  Ritchie stressed                 
  that awards depend upon a number of factors.  The department                 
  consistently attempts to  reduce awards as much  as possible                 
  and requires opposing parties to justify attorney fees.                      
                                                                               
  Senator Zharoff inquired regarding the  effect of not paying                 
  judgments.    Mrs. Ritchie  said she  was  not aware  of any                 
  judgments  against  the  state  that  have  not  been  paid.                 
  Referencing  the judgment  for Alaska  Legal  Services, Mrs.                 
  Ritchie explained that the agency  could be awarded attorney                 
  fees just  as any  private lawyer or  law firm.   That  is a                 
  separate matter  from the  Dept. of  Community and  Regional                 
  Affairs grant to the agency.                                                 
                                                                               
  Ms. Otto suggested that failure to pay court judgments would                 
  trigger more litigation,  place the  state in contempt,  and                 
  lead   to  additional  liability   for  attorney   fees  for                 
  litigation of non-payment of fees, plus interest.    Senator                 
  Randy Phillips asked if the court has the power to force the                 
  Legislature to appropriate funding.  Does the court have the                 
  power of appropriation?   Ms. Otto  said the issue has  been                 
  researched within the context of Cleary fines.  She declined                 
  to  answer  the  question "in  this  setting."   Co-chairman                 
  Halford   remarked   that   the    question   represents   a                 
  constitutional standoff.  He cited incidences wherein courts                 
  have used mandamus to force appropriations.   The other side                 
  of the coin is the fact that the Legislature has the court's                 
  budget.  He noted  that whether justified or not,  judgments                 
  against the  state have eventually  been paid.   He remarked                 
  that the one that "stands out  as a little bit ridicules  is                 
  the  fine . .  . to  the general fund  of the state  for the                 
  Cleary case because it's an absolute circle."                                
                                                                               
  Senator Zharoff asked the  department to provide information                 
  on original requests  versus the  amount of each  negotiated                 
  judgment.                                                                    
                                                                               
  Referencing the $1,285,000.00 for Toksook  Bay v. State, Co-                 
  chairman Halford explained  that the request from  last year                 
  totals  approximately the same as this  year.  However, last                 
  year, the  feeling was  that the  state was  walking into  a                 
                                                                               
                                                                               
  precedent  that  would hold  the  state liable  under strict                 
  liability  for  things  it  had no  control  over  and  that                 
  occurred under  both federal ownership and  state ownership.                 
  That  was  not the  intent  of  strict liability  law.   The                 
  Legislature decided to deal with the issue only if there was                 
  a solution to  the strict  liability question.   Co-chairman                 
  Halford  said  he  would  support  the request  if  a  House                 
  amendment  to SB 69 becomes law,  because new language would                 
  limit strict liability as it applies to the state.                           
                                                                               
  Co-chairman  Frank  next  referenced  the  $225.0   judgment                 
  against the  Dept. of  Transportation and  Public Facilities                 
  for  wrongful  termination  at  the Anchorage  International                 
  Airport.                                                                     
                                                                               
  END:      SFC-96, #51, Side 1                                                
  BEGIN:    SFC-96, #51, Side 2                                                
                                                                               
  Mrs.  Ritchie explained  that  the  Alaska Police  Standards                 
  Council denied certification to two long-term airport safety                 
  officers  when  new legislation  required that  the officers                 
  have  certification.    The superior  court  found  that the                 
  council  abused its discretion  in denying certification and                 
  directed that  the officers  be certified.  In the  interim,                 
  DOTPF   terminated   the  employees   because   they  lacked                 
  certification.   The judgment  compensates the  two officers                 
  for  lost  pay.    The  case  involved  application  of  new                 
  standards to existing  long-term employees.  The  court held                 
  it was  unfair to terminate  employees who had  proven their                 
  ability to do  the job.   The case also  involved a  dispute                 
  between the  council, which regulates and  certifies certain                 
  state  employees,  and  the  department  that  employs them.                 
  DOTPF had no alternative but  to terminate the officers when                 
  the council  denied certification,  even  if the  department                 
  disagreed with the denial.                                                   
                                                                               
  Co-chairman Frank asked why the council was not sued and the                 
  officers allowed to  keep their jobs pending  outcome of the                 
  case.    He voiced  frustration  over repeated  instances in                 
  which  employees  have been  terminated  and the  state must                 
  provide  back pay  for the  time cases progress  through the                 
  courts.   He suggested  that employees  be kept  on the  job                 
  pending a determination.  Ms. Otto stressed that the statute                 
  contains "an absolute prohibition on  being employed in that                 
  capacity  unless  you  are certified  by  the  Alaska Police                 
  Standards Council."   Once certification  was denied,  DOTPF                 
  would have been breaking the law in continuing to employ the                 
  officers.    Co-chairman  Frank  noted  that  the  officers'                 
  individual  rights  were violated  by  wrongful termination.                 
  Ms. Otto  noted that  future problems  could  be avoided  if                 
  legislation effecting new standards  contains grandfathering                 
  provisions.    That  was discussed  when  the  new standards                 
  legislation was pending,  but the  Legislature chose not  to                 
  include the provision.                                                       
                                                                               
                                                                               
  Further discussion  of  vision requirements  giving rise  to                 
  denial of  certification followed.   The  court reached  the                 
  conclusion that because  the officers had been  employed and                 
  carried  weapons  for  many  years,  the regulation,  as  it                 
  applied  to them,  was  not valid.    Further discussion  of                 
  regulatory standards of  the council followed.   Co-chairman                 
  Frank asked that  the Dept. of  Law determine the number  of                 
  employees  terminated each year,  how many  terminations are                 
  appealed  through the grievance process,  and how many go to                 
  court.    Mrs.   Ritchie  remarked  that  the   numbers  are                 
  significant, and she agreed to provide statistics.                           
                                                                               
                             RECESS                                            
                                                                               
  At  this  time, Co-chairman  Frank  announced that  he would                 
  recess  review of  supplemental  requests  until 8:00  a.m.,                 
  Friday,  March  29,  1996, at  which  time  discussion would                 
  commence with Berger v. State.   The meeting was recessed at                 
  9:05 a.m.                                                                    
                                                                               
                            RECONVENE                                          
                                                                               
  Co-chairman Halford reconvened  the meeting at approximately                 
  9:13 a.m. and  announced that  the committee would  consider                 
  legislation in the order listed on the agenda.                               
                                                                               

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