Legislature(1999 - 2000)
05/04/1999 08:45 AM House FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE FINANCE COMMITTEE
May 4, 1999
8:45 A.M.
TAPE HFC 99 - 116, Side 1
TAPE HFC 99 - 116, Side 2
CALL TO ORDER
Co-Chair Therriault called the House Finance Committee
meeting to order at 8:45 a.m.
PRESENT
Co-Chair Therriault Representative Foster
Co-Chair Mulder Representative Grussendorf
Vice-Chair Bunde Representative Kohring
Representative J. Davies Representative Moses
Representative G. Davis Representative Williams
Representative Austerman was absent from the meeting.
ALSO PRESENT
Representative Jeannette James; Bill Parker, Department of
Corrections; Michael Stark, Assistant Attorney General,
Department of Law; Brett Fried, Economist, Department of
Revenue; Tim Benintendi, Staff, Representative Moses;
SUMMARY
HB 214 "An Act relating to litigation involving
correctional facilities; and amending Rules 59(f),
60(b), 62, and 65, Alaska Rules of Civil
Procedure."
CSHB 214 (JUD) was REPORTED out of Committee with
a "do pass" recommendation and with a fiscal
impact note by the Department of Corrections dated
5/3/99.
HB 217 "An Act relating to obligations and payments to
the state under fishery cooperative contracts; and
providing for an effective date."
HB 217 was REPORTED out of Committee with a "do
pass" recommendation and with a fiscal impact note
by the Department of Revenue.
HCR 5 Relating to extension of the James Dalton Highway
to the Arctic Ocean.
CSHCR 5 (TRA) was REPORTED out of Committee with a
"do pass" recommendation and with a zero fiscal
note by the Department of Transportation and
Public Facilities dated 4/23/99.
HOUSE BILL NO. 217
"An Act relating to obligations and payments to the
state under fishery cooperative contracts; and
providing for an effective date."
TIM BENINTENDI, STAFF, REPRESENTATIVE MOSES spoke in support
of HB 217. He maintained that HB 217 is needed to authorize
the Department of Revenue to collect payments in lieu of
fisheries landing taxes. "These payments were established in
the federal American Fisheries Act of 1998, and are part of
the fisheries cooperative contracts existing among those
active in the pollock fishery. The basic provision is for
payments to be made in lieu of taxes on product, which is
not landed, for processing in Alaska. The payments are
justified in that, like the landing taxes, they help
reimburse coastal communities for basic services rendered to
the offshore fleet during the fishing seasons. Because the
American Fisheries Act changed the competitive nature and
fast pace of the fishery, some boats might well find it in
their best interest to return to places like Seattle to
refuel, take on supplies, and change crews. In this event,
they would take loads of pollock with them, foregoing
landing in Alaska. Since the extent of these changes will
not be known until at least next year, we can only speculate
on the impact on the fisheries landing tax. In the support
material to the fiscal note, it is estimated that the
potential loss of landing tax revenue would be between
$256,000 to $512,000. It may likely be higher."
Mr. Benintendi stated that "HB 217 would clearly authorize
the Department of Revenue to collect these payments, and
process them as though they were regular landing taxes. It
is necessary to achieve passage of this legislation this
year in order that it be in place for next season."
BRETT FRIED, ECONOMIST, DEPARTMENT OF REVENUE stated that
the Department of Revenue supports the legislation.
In response to a question by Representative J. Davies, Co-
Chair Therriault pointed out that the legislation allows the
state to collect money that it could not otherwise collect.
Vice-Chair Bunde agreed and added that it is new money that
the state was not previously able to collect under the
fisheries tax. He noted that the state has not had the
benefit of collection on resources going to Seattle.
In response to a question by Representative Kohring, Co-
Chair Therriault explained that the state charges a tax on
fish that are landing in the state of Alaska. Offshore
factory ships go to Seattle without unloading in Alaska. The
federal provision allows the current state tax to be
collected on the fish resources that are taken to Seattle.
It allows the state to collect the tax that is already in
place on the total resource that is fished in the state of
Alaska.
Co-Chair Mulder MOVED to report HB 217 out of Committee with
the accompanying fiscal note. There being NO OBJECTION, it
was so ordered.
HB 217 was REPORTED out of Committee with a "do pass"
recommendation and with a fiscal impact note by the
Department of Revenue.
HOUSE BILL NO. 214
"An Act relating to litigation involving correctional
facilities; and amending Rules 59(f), 60(b), 62, and
65, Alaska Rules of Civil Procedure."
CO-CHAIR MULDER, SPONSOR, spoke in support of HB 214. He
noted that the legislation is an attempt to hold down
spiraling costs in the Department of Corrections. He
observed that the Department of Law indicated that it might
be time for the legislature to go forward with its own
version of the Prisoner Litigation Reform Act, similar to
the one that passed the federal government several years
ago. He observed that the legislature passed a resolution
requesting the Department of Law to petition the court,
under rule 60(b), for the termination of the Cleary decree.
The Department of Law felt that the case was not strong
enough under rule 60(b). The Department of Law helped to
draft HB 214. House Bill 214 places a definite timeline on
consent decrees and court orders. He noted that the state is
living under the Cleary Consent Decree, which was initiated
in the early 1980's.
Co-Chair Mulder explained that under the legislation,
consent decrees or court orders would be held for two years.
After two years the plaintiffs would have to prove that a
constitutional violation remained in order to maintain the
consent decree or court order. He stressed that the
Department of Law could still enter into a consent decree.
The legislation only provides a mechanism by which the
department can petition the court for the termination of a
decree or court order.
Co-Chair Mulder maintained that Cleary drives a lot of the
state's correctional costs. The Legislature appropriated an
additional $10 million dollars in FY 99 in order to bring
the state into compliance with the Cleary settlement. He
pointed out that in a time of declining state revenues that
the correctional system should not be held to a higher
standard than other needs of the state. He maintained that
the court monitor determines if the state is in compliance
and how much money should be spent. He emphasized that the
courts are indirectly utilizing their power to affect
appropriations.
Representative J. Davies questioned if the legislation
limits the ability of the court to impose a decision. Co-
Chair Mulder noted that if a violation to a constitutional
right exists the court could put in place an order. After
two years if the department has taken corrective action the
department can petition the court to discontinue the order.
Then it would be incumbent on the plaintiff to prove the
fact that the violation still exists.
Representative J. Davies stated that the plaintiffs would
have to keep proving their case over and over again. Co-
Chair Mulder asked if that would be wrong in relation to
prison conditions, when corrective steps have been taken.
Representative J. Davies stressed that the court has found
that the state has not fulfilled the terms of the Cleary
agreement. He pointed out that the agreement was outside of
the court. The state agreed to provide certain conditions.
He noted that if the state does not fulfill its obligations
the plaintiffs would have to prove again that they are owed
by the state.
Co-Chair Mulder argued that the Department of Law signed
onto the Cleary settlement. The Legislature has made it
clear that it does not agree with the conditions and terms
of the Cleary settlement. He pointed out that at the time of
the settlement there were no constitutional violations. The
lower Court found that, while the state of Alaska had some
of the safest prisons in the United States, that the
conditions that existed had a potential to create a problem
in the future. He maintained that not all of the components
of the Cleary court decree speak to constitutional
protections. He gave the example of the degree to which food
should be heated.
Representative J. Davies stressed that representatives of
the state found it in the state of Alaska's interest to
agree to the stipulations, even if they did not rise out of
a constitutional right. He noted that it might be in the
state's interest to agree to a lesser standard to avoid a
greater cost. He asked if the legislation would take away
the possibility of a similar consideration in the future.
Co-Chair Mulder reiterated that the court could still find
in favor of prisoners if there is a constitutional
violation. The court can still impose the sanction and the
remedy to the department. He asserted that the Cleary
settlement acts as law in relationship to the Department of
Corrections and drives the department's cost. Representative
J. Davies disagreed that the settlement is in effect law. He
argued that it is no different from any other state
contract. He asserted that the affect of the legislation is
that "the state doesn't want to be bound to a contract, this
specific kind of contract, for more than two years."
Co-Chair Therriault questioned if the provisions only apply
to consent decrees in the Department of Corrections.
MICHAEL STARK, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF LAW
explained that the legislation is patterned after the
federal Prison Litigation Reform Act, which was adopted in
response to consent decrees and court orders that were
imposed in litigation cases. He noted that the consent
decrees and court orders assumed a life of the own. They
went on in many cases for 10 or 20 years. They addressed
problems that were real at the time when the orders were
first entered. Once federal problems were addressed the
states found themselves unable to get out from under the
court orders. He maintained that the hands of the executive
branches and legislatures were tied in terms of
appropriations and flexibility in managing prisons. He
asserted that the court systems end up, in one degree or
another, managing the prison systems. The legislation is
directed at litigation involving conditions in correctional
facilities or actions of government officers that affect
prisoners' lives. It does not affect the right to sue in any
other area. If there is a violation of a state statute,
state constitutional provision, federal constitutional
provision or federal statute the court has authority to
impose orders. If the state feels that the problems have
been addressed it can go to the court and move to terminate
the order. If plaintiffs demonstrate that the rights are
still being violated then the court has the authority to
continue the order. The legislation only allows the state to
move on with its duties when the problems are fixed.
Mr. Stark reviewed the Cleary case. He noted that the case
was filed in 1980. At that time there were very few resource
being devoted to the state's correctional system. In 19983
the Division of Corrections entered into a settlement
agreement that addressed many of the issues. The big-ticket
items were left for trial. There was a trial in 1984. The
court found that Alaska's system was one of the safest and
most humane in the country. It also found that while it was
not presently overcrowded, it would shortly be overcrowd,
based on statistics developed in the trial. The court
imposed population caps. The state appealed the court's
decision since there was not violation. It took several
years for the case to come to the Supreme Court. In the
meantime the prison population had grown. The state decided
that they could get more mileage from the plaintiffs than
from the courts, so they settled. The state's hands were
partially tied because of the partial settlement. He noted
that most of the problems have been corrected. He
acknowledged that there are still problems with
overcrowding. He emphasized that prison population drives
the correctional costs.
Co-Chair Therriault asked if there are limitations on the
length of contracts. Mr. Stark noted that all contracts are
dependent on legislative appropriation. If the legislature
decides not to fund a contract, the contract becomes null
and void. He further explained that the legislation would
not affect the award of damages. The legislation only
affects prospective relief.
In response to a question by Co-Chair Therriault, Mr. Stark
stated that the department supports the legislation. He
discussed the chance of a constitutional challenge. He noted
that the federal legislation has been supported in the
courts. It has not been challenged in the Supreme Court.
Representative J. Davies expressed concern with the
legislation. He stated that the state could delay actions to
address a court order. Plaintiffs would then be forced to
prove the case again. He maintained that the state should
have the burden of demonstrating that the issues have been
addressed. Mr. Stark pointed out that a violation of
constitutional protections or state statutes were not proven
in the Cleary decision. Representative J. Davies emphasized
that the irrelevant issue is that the state entered into a
contract. He maintained that the state would have lost the
court case.
Co-Chair Mulder asked if state should be able to get out
from under Cleary.
Mr. Stark stated that the Department of Corrections has
shown that it can operate at higher capacities, for periods
of time, than were established by Cleary without violating
the Constitution. He stressed that the Department of
Corrections is not interested in having prisoners stacked
up, but emphasized that the state is entitled to the
flexibility to manage. He maintained that the court should
not dictate to the executive branch and legislature how
operate the prison system unless a law is being violated.
Co-Chair Therriault questioned if the settlement rose out of
the state's ability to pay the settlement at the time. Mr.
Stark stated that the settlement was entered into because
the state did not think that the prison population would
increase to the extent that it did.
Representative J. Davies asked why the burden would be
placed on the plaintiff. He felt that the burden should be
on the defendant. He used a child support case as an
example. He stressed that the burden should be on the party
trying to change the contract.
Mr. Stark stressed that it is not a monetary contract. He
emphasized that it is a policy choice. He spoke in support
of placing the burden on the plaintiff, to allow the state
the maximum flexibility to manage the prison system.
Co-Chair Therriault stressed that plaintiffs can push for an
actual court judgement. Mr. Stark reiterated that at the end
of two years, if the state felt that it was no longer in
violation of the law, it could move to terminate or modify
the order. The burden would be on the plaintiff to
demonstrate that there is a continuing, current violation in
order for the order to continue.
Representative Grussendorf pointed out that the courts
cannot force the legislature to appropriate money to address
problems identified by the court. He pointed out that the
Department of Corrections has been able to use Cleary to
leverage more funding. He stated that it should be up to the
plaintiffs to prove that the state has not corrected the
deficiencies.
Mr. Stark maintained that the state of Alaska's correctional
system is a safe system. He asserted that it is one of the
best in the country. He noted that the Department of
Corrections and the Department of Law would be leery if the
legislature looked at the legislation as a green light to
slash funding for corrections.
Representative J. Davies questioned how the legislation
would limit decent decrees or the ability of court decisions
to be based on anything other than a right defined in the
legislation.
Mr. Stark stated that it limits the ability of courts to
order prospective relief to any litigation involving prison
conditions to situations where the plaintiffs have shown
there is a violation of a federal or state right. If the
plaintiff can demonstrated that the state has violated a
statute and an inmate or class of inmates have been injured
by the action, then the court has the authority to order
corrective measures.
Mr. Stark pointed out that subsection (e) page 4, line 8
allows the court to approve a consent decree for up to two
years. At that time that plaintiff would have to demonstrate
that some right is being violated that was addressed in the
initial lawsuit. The federal law does not allow consent
decrees. The federal act only allows the court to order
relief when there has been a demonstrated violation of a
right. He observed that the intent is to allow flexibility
to accommodate concerns. Damages have to be paid by the
state, subject to appropriation by the legislature.
Representative J. Davies asked how class action claims would
be limited. Mr. Stark referred to page 2, line 24 When a
court finds multiple violations of a state or federal right,
when multiple remedies are ordered by the prospective
relief, or when prospective relief applies to multiple
correctional facilities, the findings required by this
subsection shall be made as to each violation, each remedy,
and each facility, as appropriate. In a civil action with
respect to correctional facility conditions that has been
certified as a class action, prospective relief applicable
to the class may only be ordered after the court makes the
findings required by this subsection and finds that the
violation of a state or federal right is applicable to the
entire class." The relief ordered must be the least
intrusive means necessary to correct the violation. The
court has to find that the violation of the state or federal
right is applicable to the entire class. This is consistent
with federal litigation. The court has the right to order
relief for individuals, but cannot order sytem wide releif
unless it is demonstrated that the entire class is affected.
Representative Grussendorf pointed out that under Cleary the
state paid the fines to its own General Fund.
BILL PARKER, DEPUTY COMMISSIONER, DEPARTMENT OF CORRECTIONS
stated that the department supports the legislation. He
pointed out that it has been 19 years since the case was
filed. The settlement has been in place for 9 years. The
main issue is overcrowding. All of the institutions are on
or below their Cleary cap except for the Cook Inlet Pretrial
facility, which cannot be addressed until the new Anchorage
jail is built. He stated that the major issues have been
addressed and the department is capable of carrying on
without constant court oversight.
Representative J. Davies asked if the court oversight was
helpful in making arguments to the legislature that
appropriations were necessary for additional beds. Mr.
Parker stressed that the increase in prison population was
the main influence on the department's budget. There were
approximately 770 prisoners in 1980. There are currently
approximately 4,300 prisoners. He pointed out that there
would be some savings if Cleary were lifted. The department
has additional administrative cost associated with the
settlement. He noted that the department pays the court
monitor's fees.
Representative Foster MOVED to report CSHB 214 (JUD) out of
Committee with the accompanying fiscal note. There being NO
OBJECTION, it was so ordered.
CSHB 214 (JUD) was REPORTED out of Committee with a "do
pass" recommendation and with a fiscal impact note by the
Department of Corrections dated 5/3/99.
HOUSE CONCURRENT RESOLUTION NO. 5
Relating to extension of the James Dalton Highway to
the Arctic Ocean.
REPRESENTATIVE JEANETTE JAMES sponsor spoke in support of
HCR5. She explained that the goal of the resolution is to
complete the opening of the Dalton Highway from the Yukon
River to the Arctic Ocean, before the beginning of the
summer's tourism season. She noted that it is possible to
walk to the Arctic Ocean. The Dalton Highway was open to the
public until the installation of two oil company checkpoints
that are approximately eight miles from the Arctic Ocean.
Visitors must pay $20 dollars per-person for a tour bus ride
past this point. She noted that this is a point of
contention for many people. She observed that statutes
relating to the Dalton Highway refer to a road from the
Yukon River to the Arctic Ocean. She stressed that the
public has a right to access the Arctic Ocean.
Co-Chair Therriault asked what would be done to protect the
security of the oil companies operating in the area.
Representative James stated that the resolution did not
address security measures. She emphasized that the
department would need to settle the issue.
Representative Grussendorf asked if the road would compete
for federal funds. He noted that it is a service road. He
stated that he would support the resolution, but anticipated
that RV parks would result.
Co-Chair Therriault asked if there is currently a route to
the end of the road. Representative James pointed out that
there is a private road to the ocean. She stated that people
that drive from Fairbanks should have access to the Arctic
Ocean.
Co-Chair Therriault asked if there is land under state
control that would allow facilities to be built at the
ocean. Representative James did not know. She reiterated
that the state should not restrict access to public water
bodies.
Representative G. Davis estimated that all of the land to
the beach is under private lease. He questioned if the point
is to provide free access. He stressed the need for
cooperation. He stated that he did not object to the
resolution, but estimated that the ability of the state to
control access would be limited.
Representative Foster MOVED to report CSHCR 5 (TRA) out of
Committee with the accompanying fiscal note. There being NO
OBJECTION, it was so ordered.
CSHCR 5 (TRA) was REPORTED out of Committee with a "do pass"
recommendation and with a zero fiscal note by the Department
of Transportation and Public Facilities dated 4/23/99.
ADJOURNMENT
The meeting adjourned at 9:50 a.m.
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