Legislature(2009 - 2010)CAPITOL 106
02/24/2010 12:00 PM House EDUCATION
| Audio | Topic |
|---|---|
| Start | |
| Overview: Legislative Intent: What Does It Mean to the Courts, and How Do We Make It Clear? | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE EDUCATION STANDING COMMITTEE
February 24, 2010
12:14 p.m.
MEMBERS PRESENT
Representative Paul Seaton, Chair
Representative Wes Keller
MEMBERS ABSENT
Representative Cathy Engstrom Munoz, Vice Chair
Representative Bryce Edgmon
Representative Peggy Wilson
Representative Robert L. "Bob" Buch
Representative Berta Gardner
OTHER LEGISLATORS PRESENT
Representative Tammie Wilson
Representative Max Gruenberg
Representative Neal Foster
Senator Bill Wielechowski
Senator Joe Paskvan
COMMITTEE CALENDAR
OVERVIEW: LEGISLATIVE INTENT: WHAT DOES IT MEAN TO THE COURTS~
AND HOW DO WE MAKE IT CLEAR?
- HEARD
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
WALTER L. CARPENETI, Chief Justice
Alaska Supreme Court
Alaska Court System (ACS)
Juneau, Alaska
POSITION STATEMENT: Provided his perspective on legislative
intent and the process of adjudication.
LAEL HARRISON, Attorney
Faulkner Banfield, PC
Juneau, Alaska
POSITION STATEMENT: Responded to questions during the overview.
DON BULLOCK, Attorney
Legislative Legal Counsel
Legislative Affairs Agency
Juneau, Alaska
POSITION STATEMENT: Asked a question during the overview.
SUSAN COX, Senior Assistant Attorney General
Torts and Worker's Compensation Section
Department of Law
Juneau, Alaska
POSITION STATEMENT: Responded to questions during the overview.
ACTION NARRATIVE
12:14:05 PM
CHAIR PAUL SEATON called the House Education Standing Committee
meeting to order at 12:14 p.m. Representatives Seaton and
Keller were present at the call to order. Senators Wielechowski
and Paskvan, and Representatives Foster, T. Wilson, and
Gruenberg were also in attendance.
12:14:15 PM
^OVERVIEW: Legislative intent: What does it Mean to the
Courts, and How do We Make it Clear?
OVERVIEW: Legislative intent: What does it Mean to the Courts,
and How do We Make it Clear?
12:14:34 PM
CHAIR SEATON announced that the only order of business would be
an educational interactive discussion on Legislative Intent:
What does it Mean to the Courts, and How do We Make it Clear?
12:17:37 PM
WALTER L. CARPENETI, Chief Justice, Alaska Supreme Court, Alaska
Court System (ACS), indicated he was speaking for himself and
was not representing members of the Alaska Supreme Court. Also,
he clarified that he may not be able to answer every question,
as traditionally members of the court do not issue advisory
opinions. Chief Justice Carpeneti introduced Susan Cox and Lael
Harrison.
12:20:05 PM
CHAIR SEATON pointed out that legislative attorneys were also in
attendance and available to answer questions.
12:21:14 PM
CHIEF JUSTICE CARPENETI gave the definition of legislative
intent provided in Black's Law Dictionary: The design or plan
that the legislature had at the time of enacting a statute.
Although this is a simple definition, he cautioned that there is
a potential for problems. In response to the question of what
the court can and should look at to determine the intention of
the legislature, there is a broad sweep of opinion. However, he
opined, "Looking to anything ... besides the words of the
statute, is essentially a fool's errand," because once the court
goes beyond that boundary, there is the risk of coming to a
conclusion that the legislature did not enact and the governor
did not sign. For example, there may be a case where a
legislator may attempt to expand the meaning of a statute to
salvage a lost cause. However, it is appropriate for the court
to look at legislative history, such as a sponsor's statement,
the governor's letter of transmittal, or other written
documentation.
12:24:35 PM
CHIEF JUSTICE CARPENETI advised that other states have a variety
of views on this question; in fact, some give little or no
weight to legislative history. In Alaska, the court looks first
to the words of the statute and then applies the following
sliding scale: The greater the ambiguity, the more the court
will look at legislative history in order to determine the
intent; the less ambiguity, the less the court will look at
legislative history. He cited illustrative cases.
12:26:31 PM
CHIEF JUSTICE CARPENETI restated that legislative intent means
to the courts, "finding out what the legislature is trying to do
with legislation...." The court's effort includes finding the
proper documentation, which leads to the second question of how
the legislature can make clear its intent. First and foremost,
the legislature must express, on the record and in the minutes,
what it is trying to accomplish. Chief Justice Carpeneti
praised the Alaska legislature for its efforts to improve
recordkeeping; in fact, Alaska's legislative records are more
reliable than those of the U.S. Congress. Poor recordkeeping
may be the reason U.S. Supreme Court justices do not apply a
great deal of weight to legislative history. Conversely, since
the early 1980s, Alaska legislative minutes are prepared for all
committee hearings in good fashion, tapes for floor debates are
available, reference librarians are dedicated, and through these
records intent can be established by the courts.
12:30:12 PM
CHIEF JUSTICE CARPENETI opined intent is further clarified
through the sponsor statement, the governor's letter of
transmittal, and materials included in the committee packet; in
fact, these materials should be updated during the legislative
process. He said, "It's not uncommon for us to find, when we're
looking at legislative history, a sponsor statement that remains
the same all the way through, even though the bill goes through
substantial amendments ..." Chief Justice Carpeneti urged bill
sponsors to be diligent and work with staff so that statements
and committee reports are timely and carry weight.
12:31:37 PM
CHIEF JUSTICE CARPENETI pointed out that extensive committee
debate on the intent of legislation indicates that the reviewing
court will also see ambiguity. He then referred Chokwak v.
Worley, a court case that raised the question whether AS
04.21.020 grants civil immunity to social hosts who provide
liquor to minors. He read from the statute and phrases from the
decision to illustrate how the statute, the sponsor statement,
the sectional analysis, and the legislative history of the
legislation were used by the court during its review.
12:35:55 PM
CHIEF JUSTICE CARPENETI advised that the courts want to carry
out the intent of the legislature, and to justly and fairly
decide the cases presented to them. Legislators can help the
courts by drafting legislation that is clear initially, and by
creating a clear legislative history for those cases that are
brought to the court to be decided.
12:37:21 PM
CHAIR SEATON observed legislators should provide as much clarity
as possible and sufficient written guidance. He recalled that
at one time legislative intent was included in a special section
of each bill. Chair Seaton asked whether the inclusion of
legislative intent in the bill is more helpful to the court than
the sponsor statement or sectional analysis.
12:38:59 PM
CHIEF JUSTICE CARPENETI said his personal belief is that a
statement of legislative intent should be helpful; however,
there is a risk that aspects of the statement of intent may
conflict with the provisions in the statute. In that case, the
statement is weakened.
12:40:50 PM
LAEL HARRISON, Attorney, Faulkner Banfield, PC, opined
statements of intent can be less precise than the statute; in
fact, statements of legislative intent can have "a much more
broad sweep that may cover situations that aren't covered in the
statute itself."
REPRESENTATIVE KELLER asked whether weight is put on the
sponsor's intent if there are substantive changes to the bill
that do not reflect the sponsor's intent.
12:42:53 PM
CHIEF JUSTICE CARPENETI advised that a sponsor statement that is
not updated when the bill is amended creates difficulties. He
noted that sponsor statements remain persuasive when they are
changed to reflect amendments to the bill.
12:44:09 PM
REPRESENTATIVE KELLER assumed legislative intent would be
"worthless" if in conflict with statute.
12:45:41 PM
MS. HARRISON responded that in the case of a direct conflict
legislative intent would be subordinate to the text of the
statute; however, the statement of legislative intent is not
thrown out, and may be considered at a later date for a
different purpose.
12:46:46 PM
SENATOR PASKVAN commented on the zeal of two lawyers
representing their clients at the level of the Alaska Supreme
Court.
12:48:11 PM
CHAIR SEATON asked whether the court would have an adverse
interpretation of legislative intent that is not adopted by both
bodies of the legislature.
12:49:38 PM
CHIEF JUSTICE CARPENETI stated that generally courts do not
ascribe meaning to the lack of action on the part of a
legislative body, except in fairly rare circumstances. He then
referred to Schiel v. Union Oil and related in that case the
court looked at statements made by legislators during the
consideration of amendments, to identify legislative and statute
objectives. Clearly, the court must look at various aspects of
what is said about the legislation as it proceeds through the
legislative process.
12:53:05 PM
CHIEF JUSTICE CARPENETI informed the Senators and
Representatives present that members of the court were concerned
about the subject of his presentation. He asked whether
legislators have been suspicious about floor debate that may
have been intentionally submitted into the record as a basis for
future review.
12:54:36 PM
REPRESENTATIVE KELLER agreed that legislators are making policy
and intent comes into the floor debate on one side or another.
12:55:31 PM
CHIEF JUSTICE CARPENETI asked whether legislators have a
responsibility to respond to debate that is clearly incorrect.
12:55:58 PM
REPRESENTATIVE KELLER opined there is accountability during the
debate process on the floor.
12:56:54 PM
REPRESENTATIVE GRUENBERG observed that in committee, and on the
floor, it is impossible to rebut every statement that one knows
to be incorrect. Furthermore, there is not time to legislate
with concern about a future court interpretation of legislative
history. On occasion, a letter of intent accompanies a bill.
In Congress, sectional analyses become a part of the committee
report and are signed by members, thus becoming a primary source
of legislative history. He suggested the legislature should
begin recording subcommittee hearings in addition to committee
hearings. Representative Gruenberg stressed that a member's
views expressed on the floor are especially troubling in regard
to initiatives, which have no legislative history, and in
certain constitutional amendments, which are broadly written.
1:00:54 PM
REPRESENTATIVE GRUENBERG asked whether there are any states that
have passed statutes or rules as to how legislative history
should be interpreted within the state. He pointed out that a
change in the membership of the Alaska Supreme Court could
affect the method of its interpretation of legislative history.
1:01:55 PM
CHIEF JUSTICE CARPENETI said he was unsure.
1:02:00 PM
SENATOR PASKVAN stated that the responsibility to defend the
intent of the bill on the floor falls to the sponsor.
1:02:45 PM
CHIEF JUSTICE CARPENETI added that debate may not be an attempt
to stop or slow down legislation, but to instill a misleading
statement of legislative intent. This action is an illegitimate
use of the legislative system.
SENATOR PASKVAN indicated that this does happen.
1:03:32 PM
CHAIR SEATON also agreed, and related that members are only to
speak once on a bill, except for the sponsor who may answer
questions. During a long debate, members may not take the time
to correct a statement made by another. He said this
presentation has pointed out the importance of establishing
accurate legislative intent.
1:05:19 PM
CHAIR SEATON requested questions from the legislative staff or
the audience.
1:05:58 PM
DON BULLOCK, Attorney, Legislative Legal Counsel, Legislative
Affairs Agency, observed that generally bills do not include
findings of intent, with the exception of legislation related to
constitutional issues in which there is a public purpose issue.
He asked whether the court found this helpful.
1:06:28 PM
CHIEF JUSTICE CARPENETI deferred to Susan Cox.
1:06:58 PM
SUSAN COX, Senior Assistant Attorney General, Torts and Worker's
Compensation Section, Department of Law, said in her experience
in litigating the constitutionality of a statute, the department
made a serious effort to ensure that positions were supported in
the legislative process and debate, thus this information was
ultimately available to the court.
1:07:48 PM
CHIEF JUSTICE CARPENETI agreed the above procedure was
effective.
1:08:07 PM
CHAIR SEATON reminded members that a bill is generally amended,
and it is difficult to say that the intent of one committee is
more significant than another. In fact, some sponsor statements
are intentionally unclear. He summarized that legislators must
be as clear as possible in the wording of the statute, and
ambiguities should be addressed and clarified during committee
discussion. Further, legislative intent that is voted on is the
most helpful.
1:10:46 PM
REPRESENTATIVE GRUENBERG acknowledged that legislative history
is very tricky from the point of view of the judiciary. Alaska
has not had sufficient time for a second generation of "fix it"
legislation to pass. In addition, testimony on a bill during
committee hearings may not fully represent both sides. This is
particularly a problem now because certain agencies do not
testify on proposed legislation, thus only one side of the story
is represented.
1:13:06 PM
CHAIR SEATON pointed out that committee hearings have full
public notice and most bills have two hearings. Furthermore,
committee members have the opportunity and responsibility to ask
pertinent questions.
1:14:07 PM
CHAIR SEATON thanked the participants.
1:14:43 PM
CHIEF JUSTICE CARPENETI said he appreciated the opportunity to
present.
1:14:53 PM
ADJOURNMENT
There being no further business before the committee, the House
Education Standing Committee meeting was adjourned at 1:15 p.m.
| Document Name | Date/Time | Subjects |
|---|