Legislature(1993 - 1994)
02/09/1994 01:15 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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.