Legislature(1993 - 1994)
02/09/1994 01:15 PM House JUD
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
February 9, 1994
1:15 p.m.
MEMBERS PRESENT
Rep. Brian Porter, Chairman
Rep. Jeannette James, Vice-Chair arrived 1:35 p.m.
Rep. Pete Kott arrived 1:33 p.m.
Rep. Gail Phillips arrived 1:33 p.m.
Rep. Joe Green
Rep. Cliff Davidson arrived 1:45 p.m.
Rep. Jim Nordlund arrived 2:10 p.m.
COMMITTEE CALENDAR
*HCR 24: Supporting the governor's decision to authorize a
suit against the United States government for
violating the Alaska Statehood Act.
PASSED OUT OF COMMITTEE UNANIMOUSLY WITH
INDIVIDUAL RECOMMENDATIONS
*HCR 28: Relating to requesting the Governor to direct the
Attorney General to undertake all available means
to have the partial settlements agreed to by the
state in Cleary v. Smith and the court orders
issued in that case that impose required
conditions of confinement and continued monitoring
and oversight of the correctional system by the
courts dissolved or modified.
HEARD AND HELD OVER FOR EXECUTIVE SESSION MONDAY,
FEBRUARY 14, 1994
HB 277: "An Act relating to public employers defending and
indemnifying public employees and former public
employees with respect to claims arising out of
conduct that is within the scope of employment."
CSHB 277(JUD) WAS PASSED OUT OF COMMITTEE WITH
INDIVIDUAL RECOMMENDATIONS AND ZERO FISCAL
NOTES
WITNESS REGISTER
MELVA KROGSENG
Legislative Aide
Representative Ramona Barnes
Alaska State Legislature
Capitol Building, Room 208
Juneau, Alaska 99811
Phone: 465-3438
POSITION STATEMENT: Testified on behalf of the Prime
Sponsor on HCR 24 and HCR 28
CHERI L. JACOBUS, Chief
Assistant Attorney General
General Civil Section
Department of Law
1031 W. 4th Avenue, Suite 200
Anchorage, Alaska 99501
Phone: 269-5100
POSITION STATEMENT: Testified in support of HCR 24
JERRY LUCKHAUPT
Legislative Legal Counsel
Legislative Affairs Agency
130 Seward Street
Juneau, Alaska 99801
Phone: 465-2450
POSITION STATEMENT: Answered questions regarding HCR 28
SUSAN COX, Supervisor
Special Litigation Section
Assistant Attorney General
Department of Law
P.O. Box 110300
Juneau, Alaska 99811
Phone: 465-3603
POSITION STATEMENT: Answered questions regarding HB 277
TERRY CRAMER
Legislative Legal Counsel
Legislative Affairs Agency
130 Seward Street
Juneau, Alaska 99801
Phone: 465-2450
POSITION STATEMENT: Drafter of HB 277
PREVIOUS ACTION
BILL: HCR 24
SHORT TITLE: SUPPORT SUIT AGAINST FEDERAL GOVERNMENT
SPONSOR(S): REPRESENTATIVE(S) BARNES,Phillips,Hudson,Green
JRN-DATE JRN-PG ACTION
01/10/94 2005 (H) READ THE FIRST TIME/REFERRAL(S)
01/10/94 2005 (H) JUDICIARY
01/14/94 2082 (H) COSPONSOR(S): GREEN
02/09/94 (H) JUD AT 01:15 PM CAPITOL 120
BILL: HCR 28
SHORT TITLE: GET CLEARY ORDERS DISSOLVED OR CHANGED
SPONSOR(S): REPRESENTATIVE(S)
BARNES,Phillips,Williams,Toohey,
Vezey,James,Martin,Foster,Porter,Mulder,Olberg,Green,Bunde,
Sanders,Hudson,Larson,Kott,MacLean,Hanley
JRN-DATE JRN-PG ACTION
01/19/94 2108 (H) READ THE FIRST TIME/REFERRAL(S)
01/19/94 2108 (H) JUDICIARY
01/26/94 2159 (H) COSPONSOR(S): HANLEY
02/09/94 (H) JUD AT 01:15 PM CAPITOL 120
BILL: HB 277
SHORT TITLE: INDEMNIFICATION OF PUBLIC EMPLOYEES
SPONSOR(S): REPRESENTATIVE(S) PORTER
JRN-DATE JRN-PG ACTION
04/07/93 1070 (H) READ THE FIRST TIME/REFERRAL(S)
04/07/93 1070 (H) STATE AFFAIRS,JUDICIARY,FINANCE
01/18/94 (H) STA AT 08:00 AM CAPITOL 102
01/18/94 (H) MINUTE(STA)
01/25/94 (H) STA AT 08:00 AM CAPITOL 102
01/25/94 (H) MINUTE(STA)
01/26/94 2157 (H) STA RPT CS(STA) 4DP 3NR
01/26/94 2157 (H) DP: KOTT, G. DAVIS, B. DAVIS,
ULMER
01/26/94 2157 (H) NR: OLBERG, VEZEY, SANDERS
01/26/94 2157 (H) -2 ZERO FISCAL NOTES (ADM,ADM)
1/26/94
02/02/94 (H) JUD AT 01:15 PM CAPITOL 120
02/02/94 (H) MINUTE(JUD)
02/09/94 (H) JUD AT 01:15 PM CAPITOL 120
ACTION NARRATIVE
TAPE 94-20, SIDE A
Number 000
The House Judiciary Standing Committee was called to order
at 1:32 p.m. on February 9, 1994. A quorum was present with
the arrival of Reps. Kott and Phillips at 1:33 p.m.
Chairman Porter announced the committee would address HCR 24
first.
HCR 24 - SUPPORT SUIT AGAINST FEDERAL GOVERNMENT
Number 027
MELVA KROGSENG testified on behalf of Representative Ramona
Barnes, Prime Sponsor of HCR 24. She read the following
position statement:
"HCR 24 supports the Governor's decision to authorize a suit
against the United States government for violating the
Alaska Statehood Act. When the Alaska Statehood Act was
crafted, Congress guaranteed all attributes of sovereignty
that were granted to all other states under the U.S.
Constitution. However, over the past few years, the terms
of the Alaska Statehood Act have been violated by the
Congress. These violations include withdrawal from
development of nearly 80 percent of the federal land from
which Alaska was to derive mineral royalties. Alaska is
also the only state not allowed to sell her oil resources
abroad.
"Alaska is a sovereign state and we must not let our
sovereignty be violated. The Statehood Act was an agreement
between Congress and the People of Alaska and it cannot
unilaterally be changed. We must stand up for our rights
now and in the future."
MS.KROGSENG distributed a pamphlet from the Governor's
office entitled "Defending Alaska's Statehood Compact."
Number 077
CHERI L. JACOBUS, Assistant Attorney General, Department of
Law, testified in support of HCR 24. She said the reason
the Department of Law (DOL) so strongly supported this was
several fold. Ms. Jacobus said that Alaska became a state a
little over 35 years ago, and two things happened when we
became a state: the first being we were to be admitted on
equal footing with all other states, which means certain
sovereign rights were guaranteed to us as a state. Ms.
Jacobus described a number of those rights that have been
infringed upon, including the oil export ban.
MS. JACOBUS continued, saying we entered into a statehood
compact, and that a compact is a contract, is legally
enforceable, and as a contract it has been enforced by the
U.S. Supreme Court on many occasions. She added that it is
not unusual for a state to ask the courts to enforce the
terms of that contract. She said, in addition, for the past
thirty-five years several terms of that contract have been
violated by the federal government, and there is only one
way at this point for us to regain what we have lost over
the past thirty-five years, and that is in the court, which
is why Governor Hickel has authorized and insisted upon
certain pieces of litigation being brought against the
federal government in federal court.
MS. JACOBUS pointed out that regardless of the outcome of
any of these lawsuits, it is important for the people of the
state of Alaska to know exactly what it is it got at
statehood. She said for thirty-five years we've seen those
statehood rights infringed upon and eroded, and it is now
time for us to find out what this means.
MS. JACOBUS concluded that it should be pointed out that the
compact is unlike other legislation that was issued by the
United States Congress, that it is not simply a form of
legislation, it did not become self-enacting, rather, it
only became effective after the people of the state of
Alaska specifically voted on all attributes of that compact,
including all the terms, and agreeing to accept all the
responsibilities and burdens and expense of statehood.
Number 163
REP. PHILLIPS commented that HCR 24 is a very good
resolution, and referred Ms. Jacobus to the first whereas,
where it differentiates between the statehood compact and
the statehood act. She then discussed the last page, which
specifies violating the statehood act, and asked if the
committee should add language on the statehood compact.
Number 165
MS. JACOBUS replied that she thinks that is important to add
the words.
Number 176
REP. PHILLIPS moved to amend the "be it resolved" portion of
HCR 24, adding the words "Alaska Statehood Compact."
REP. GREEN moved the amendment and asked for unanimous
consent.
Number 217
REP. PORTER heard no objection, and Amendment No. 1 was so
moved.
Hearing a motion to move CS HCR 24(JUD) with individual
recommendations, and hearing no objection, CS HCR 24(JUD)
was moved out of committee.
CHAIRMAN PORTER announced the next order of business was HCR
28.
HCR 28 - GET CLEARY ORDERS DISSOLVED OR CHANGED
Number 278
JERRY LUCKHAUPT, Legislative Counsel, Legislative Affairs
Agency, drafter of HCR 28, testified regarding the
resolution. Mr. Luckhaupt explained the resolution
basically instructs the Governor to instruct the Attorney
General to try to get the state out of the consent decree
that the state entered into in the Cleary case. He told the
committee that Cleary was an institutional prison reform
litigation instigated by an inmate by the name of Cleary and
other inmates in the late 1970's, and the state settled the
litigation in the early 1980's. Mr. Luckhaupt discussed the
difficulties in getting out of consent decrees; however, he
said, the federal government has loosened its rules, and
enforcing consent decrees on local governments can be quite
taxing and burdensome, and when government officials entered
into consent decrees, they didn't necessarily have the
interest of the state 20 years in the future.
MR. LUCKHAUPT said the state can't afford the Cleary consent
decree anymore, and although the Alaska Supreme Court
doesn't have to follow the U.S. Supreme Court's lead, it
goes to follow that if directed to do so by the
administration and legislature, they would.
Number 398
REP. GREEN asked if the perception of Alaska being a rich
state would affect the argument that the state could no
longer afford Cleary.
Number 413
MR. LUCKHAUPT answered that since state judges signed the
consent decree, any action would be heard in Alaska courts.
Number 443
REP. PORTER recognized Commissioner Frank Prewitt,
Department of Corrections.
REP. PORTER told the committee that he was not going to move
HCR 28 out of committee at the present time as Dean Guaneli
of the Attorney General's Office had requested an executive
session to discuss HCR 28, which would take place on Monday,
February 14, 1994.
Number 483
REP. PORTER said the next order of business was HB 277.
HB 277 - INDEMNIFICATION OF PUBLIC EMPLOYEES
Number 490
REP. PORTER informed the committee that the Department of
Law had rewritten HB 277 basically with the same content,
but so it makes better sense. He said the definition of
public employer means the state or quasi public
corporations, but excludes University of Alaska, municipal
school districts or Rural Education Attendance Area, and the
reason is there is existing state law that already provides
this benefit, indemnification, for those employees.
REP. PHILLIPS addressed the definition and said she was
concerned the committee was setting a precedent in statute,
and that definition can be used for any case.
REP. PORTER explained that the definition is for the
purposes of this act.
Number 547
SUSAN COX, Supervisor, Special Litigation Section,
Department of Law, testified that HB 277 had been reworked
from the one the committee saw a week ago, broken down into
several statutes, and made into a chapter to make the
legislation more manageable. She highlighted a few things:
one being to address the concern that employees would be
terminated to avoid having to indemnify or defend them, a
provision has been added to make it clear that former
employees are covered the same as current employees if they
are sued about something that pertains to their former
employment.
Number 575
MS. COX then addressed a new section that discusses when an
employee is paying the tab fully for defense and
indemnification, they can settle a case without the
employee's consent as long as they settle all the claims
against the employee.
Number 584
REP. DAVIDSON indicated he still had a concern about some
settlements that leaves questions about the reputation of an
employee.
Number 592
MS. COX replied there are two things: one, the common
practice of including a provision that says nothing in this
settlement is an admission of guilt, or responsibility or
liability; and two, if the employee feels maligned by
litigation, he or she can bring a counter-claim against the
individual. She added that the state doesn't pay costs in
this case.
Number 620
REP. DAVIDSON asked, what if there was just cause to
counter-claim, how do you ensure that the suit doesn't
create a bad situation for that person?
Number 633
MS. COX responded that the employee could strongly object
and an agreement could be made by the state, and the
employee can go on and continue to litigate, but at his or
her own expense.
Number 655
REP. DAVIDSON expressed concern that the resolution is money
versus whether someone was right or wrong.
Number 661
REP. PORTER observed that he had been in the employee's
position personally and tried to address it, but all of
this, for these kinds of employees, is just policy. He
continued, saying to try to balance the rights of an
individual versus the rights of the employer is basically
the direction HB 277 went, and he agrees that the employer
cannot, by settlement, sign away the rights of the employee
to take further action if he or she chooses to do so.
Number 676
REP. GREEN asked if the litigation record could have an
adverse effect if the employee pursued the case.
Number 688
MS. COX indicated she couldn't conceive of circumstances
where that would be the case. She said the claim you may
have against someone else, i.e., defamation, would arise
from certain facts, and so it wouldn't matter what was
developed in the first lawsuit in terms of what's on the
record, so the issue is going to be what happened, and will
most likely have nothing to do with the lawsuit.
MS. COX added that many attorneys don't put an individual's
name on the suit, usually it is the employer who is fully
engaged, but not the individual.
Number 743
REP. PHILLIPS returned to the subject of the definition of
public employer and said it needs to be clarified that it
only applies to this act.
Number 750
The committee discussed various ways of handling Rep.
Phillips' concerns.
Number 796
REP. PORTER introduced Amendment No. 1, which would add that
written notice must be given to the employee if it is the
employer's intention not to provide defense, and the notice
must be given within 60 days in writing after receiving a
request for legal defense.
Number 854
REP. GREEN moved Amendment No. 1. Hearing no objection,
Amendment No. 1 was adopted.
Number 861
REP. PHILLIPS introduced Amendment No. 2, which would
address the definition of public employer and state that it
is "for the purposes of this act only."
TAPE 94-20, SIDE B
Number 000
The committee discussed Amendment No. 2 and asked for
Legal's interpretation of the amendment.
Number 083
TERRY CRAMER, Legislative Legal Counsel, Legislative Affairs
Agency, drafter of HB 277, told the committee that it was
contrary to drafting procedures to include that type of
definition. She said HB 277 would become statute, and the
amendment implies that it's not a chapter.
The committee discussed Ms. Cramer's interpretation and Rep.
Phillips asked that Amendment No. 2 be withdrawn.
Number 165
REP. GREEN made a motion to move CS HB 277(JUD) out of
committee with individual recommendations and zero fiscal
notes.
Hearing no objection, it was so moved.
ADJOURNMENT
CHAIRMAN PORTER adjourned the meeting at 2:30 p.m.
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