Legislature(1993 - 1994)

02/09/1994 01:15 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ 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.                                      
            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                         
  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                                                                
  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                                                                
  SPONSOR(S): REPRESENTATIVE(S)                                                
  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                                                                
  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,                   
  01/26/94      2157    (H)   NR:  OLBERG, VEZEY, SANDERS                      
  01/26/94      2157    (H)   -2 ZERO FISCAL NOTES (ADM,ADM)                   
  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                 
  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                    
  "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                       
  Number 217                                                                   
  REP. PORTER heard no objection, and Amendment No. 1 was so                   
  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
  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                       
  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                 
  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                    
  Hearing no objection, it was so moved.                                       
  CHAIRMAN PORTER adjourned the meeting at 2:30 p.m.                           

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