Legislature(1999 - 2000)

04/05/2000 01:19 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
         HOUSE JUDICIARY STANDING COMMITTEE                                                                                     
                   April 5, 2000                                                                                                
                     1:19 p.m.                                                                                                  
MEMBERS PRESENT                                                                                                                 
Representative Pete Kott, Chairman                                                                                              
Representative Joe Green                                                                                                        
Representative Norman Rokeberg                                                                                                  
Representative Jeannette James                                                                                                  
Representative Lisa Murkowski                                                                                                   
Representative Eric Croft                                                                                                       
Representative Beth Kerttula                                                                                                    
MEMBERS ABSENT                                                                                                                  
All members present                                                                                                             
COMMITTEE CALENDAR                                                                                                              
CONFIRMATION HEARINGS                                                                                                           
Commission on Judicial Conduct                                                                                                  
     Sharon Nahorney - Anchorage                                                                                                
     - CONFIRMATION ADVANCED                                                                                                    
Alaska Judicial Council                                                                                                         
     Gigi Pilcher - Ketchikan                                                                                                   
     - CONFIRMATION ADVANCED                                                                                                    
Board of Governors of the Alaska Bar                                                                                            
     Anastasia Cooke Hoffman - Bethel                                                                                           
     - CONFIRMATION ADVANCED                                                                                                    
Select Committee on Legislative Ethics                                                                                          
     Shirley McCoy - Juneau                                                                                                     
     - CONFIRMATION ADVANCED                                                                                                    
CS FOR SENATE BILL NO. 193(FIN)                                                                                                 
"An Act relating to the payment of wages and claims for the payment                                                             
of wages."                                                                                                                      
     - HEARD AND HELD                                                                                                           
HOUSE BILL NO. 182                                                                                                              
"An Act relating to charitable gaming and to gaming on state                                                                    
ferries; and providing for an effective date."                                                                                  
     - ASSIGNED TO SUBCOMMITTEE                                                                                                 
CS FOR SENATE BILL NO. 123(FIN)                                                                                                 
"An Act relating to public interest litigants and to attorney fees;                                                             
and amending Rule 82, Alaska Rules of Civil Procedure."                                                                         
     - HEARD AND HELD; ASSIGNED TO SUBCOMMITTEE                                                                                 
HOUSE BILL NO. 425                                                                                                              
"An Act relating to misrepresentation and false claims made against                                                             
the state or a municipality; and providing for an effective date."                                                              
     - SCHEDULED BUT NOT HEARD                                                                                                  
PREVIOUS ACTION                                                                                                                 
BILL: SB 193                                                                                                                    
SHORT TITLE: COLLECTION OF UNPAID WAGES/WAGE PAYMENTS                                                                           
Jrn-Date    Jrn-Page           Action                                                                                           
 1/14/00      1977     (S)  READ THE FIRST TIME - REFERRALS                                                                     
 1/14/00      1977     (S)  L&C, FIN                                                                                            
 2/08/00               (S)  L&C AT  1:30 PM BELTZ 211                                                                           
 2/08/00               (S)  -- Rescheduled to 2/10/00 --                                                                        
 2/10/00               (S)  L&C AT  1:30 PM BELTZ 211                                                                           
 2/10/00               (S)  Moved CS(L&C) Out of Committee                                                                      
 2/10/00               (S)  MINUTE(L&C)                                                                                         
 2/11/00      2272     (S)  L&C RPT CS  4DP  SAME TITLE                                                                         
 2/11/00      2272     (S)  DP: MACKIE, TIM KELLY, DONLEY, LEMAN                                                                
 2/11/00      2272     (S)  ZERO FISCAL NOTE (LABOR)                                                                            
 2/22/00               (S)  FIN AT  9:00 AM SENATE FINANCE 532                                                                  
 2/22/00               (S)  Heard & Held                                                                                        
 3/06/00               (S)  FIN AT  9:00 AM SENATE FINANCE 532                                                                  
 3/06/00               (S)  Moved CS(Fin) Out of Committee                                                                      
 3/06/00      2529     (S)  FIN RPT CS 7DP 1NR  SAME TITLE                                                                      
 3/06/00      2530     (S)  DP: TORGERSON, PARNELL, PHILLIPS,                                                                   
 3/06/00      2530     (S)  GREEN, PETE KELLY, LEMAN, WILKEN,                                                                   
 3/06/00      2530     (S)  NR: ADAMS                                                                                           
 3/06/00      2530     (S)  PREVIOUS ZERO FN (LABOR)                                                                            
 3/07/00               (S)  RLS AT 12:00 PM FAHRENKAMP 203                                                                      
 3/07/00               (S)  MINUTE(RLS)                                                                                         
 3/08/00      2562     (S)  RLS TO CALENDAR  03/08/00                                                                           
 3/08/00      2567     (S)  READ THE SECOND TIME                                                                                
 3/08/00      2567     (S)  MOVE TO BOTTOM OF CALENDAR                                                                          
 3/08/00      2576     (S)  FIN CS ADOPTED UNAN CONSENT                                                                         
 3/08/00      2576     (S)  ADVANCED TO THIRD READING                                                                           
                            UNAN CONSENT                                                                                        
 3/08/00      2576     (S)  READ THE THIRD TIME  CSSB 193(FIN)                                                                  
 3/08/00      2577     (S)  PASSED Y19 N- E1                                                                                    
 3/08/00      2577     (S)  TORGERSON NOTICE OF RECONSIDERATION                                                                 
 3/15/00      2614     (S)  RECONSIDERATION NOT TAKEN UP                                                                        
 3/15/00      2615     (S)  TRANSMITTED TO (H)                                                                                  
 3/15/00      2481     (H)  READ THE FIRST TIME - REFERRALS                                                                     
 3/15/00      2481     (H)  L&C, JUD                                                                                            
 3/29/00               (H)  L&C AT  3:15 PM CAPITOL 17                                                                          
 3/29/00               (H)  Moved CSSB 193(FIN) Out of Committee                                                                
 3/29/00               (H)  MINUTE(L&C)                                                                                         
 3/30/00      2786     (H)  L&C RPT 6DP 1NR                                                                                     
 3/30/00      2786     (H)  DP: HARRIS, CISSNA, BRICE, SANDERS,                                                                 
 3/30/00      2786     (H)  HALCRO, ROKEBERG; NR: MURKOWSKI                                                                     
 3/30/00      2786     (H)  SENATE ZERO FISCAL NOTE                                                                             
                            (LABOR) 2/11/00                                                                                     
 4/05/00               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
BILL: HB 182                                                                                                                    
SHORT TITLE: CHARITABLE GAMING & GAMING ON FERRIES                                                                              
Jrn-Date    Jrn-Page           Action                                                                                           
 4/08/99       690     (H)  READ THE FIRST TIME - REFERRAL(S)                                                                   
 4/08/99       690     (H)  TRA, JUD, FIN                                                                                       
 2/01/00               (H)  TRA AT  1:00 PM CAPITOL 17                                                                          
 2/01/00               (H)  Heard & Held                                                                                        
 2/01/00               (H)  MINUTE(TRA)                                                                                         
 2/15/00               (H)  TRA AT  1:00 PM CAPITOL 17                                                                          
 2/15/00               (H)  Meeting Postponed to Thurs 2/17/00                                                                  
 2/17/00               (H)  TRA AT  1:00 PM CAPITOL 17                                                                          
 2/17/00               (H)  Failed To Move Out Of Committee                                                                     
 2/17/00               (H)  MINUTE(TRA)                                                                                         
 2/24/00               (H)  TRA AT  1:00 PM CAPITOL 17                                                                          
 2/24/00               (H)  Heard & Held                                                                                        
 2/24/00               (H)  MINUTE(TRA)                                                                                         
 3/02/00               (H)  TRA AT  1:00 PM CAPITOL 17                                                                          
 3/02/00               (H)  Moved CSHB 182(TRA) Out of Committee                                                                
 3/02/00               (H)  MINUTE(TRA)                                                                                         
BILL: SB 123                                                                                                                    
SHORT TITLE: ATTY FEES:APPORTIONMT/PUBLIC INT.LITIGANT                                                                          
Jrn-Date    Jrn-Page           Action                                                                                           
 3/26/99       700     (S)  READ THE FIRST TIME - REFERRAL(S)                                                                   
 3/26/99       701     (S)  JUD, FIN                                                                                            
 4/09/99               (S)  JUD AT  1:30 PM BELTZ 211                                                                           
 4/09/99               (S)  MOVED OUT OF COMMITTEE                                                                              
 4/09/99               (S)  MINUTE(JUD)                                                                                         
 4/12/99       875     (S)  JUD RPT  2DP 1NR                                                                                    
 4/12/99       875     (S)  NR: TAYLOR; DP: DONLEY, HALFORD                                                                     
 4/12/99       875     (S)  ZERO FISCAL NOTE (COURT)                                                                            
 4/21/99               (S)  FIN AT  8:00 AM SENATE FINANCE 532                                                                  
 4/21/99               (S)  SCHEDULED BUT NOT HEARD                                                                             
 4/27/99               (S)  FIN AT  9:00 AM SENATE FINANCE 532                                                                  
 4/27/99               (S)  SCHEDULED BUT NOT HEARD                                                                             
 2/02/00               (S)  FIN AT  9:00 AM SENATE FINANCE 532                                                                  
 2/02/00               (S)  <Bill Postponed>                                                                                    
 2/10/00               (S)  FIN AT  9:00 AM SENATE FINANCE 532                                                                  
 2/10/00               (S)  Scheduled But Not Heard                                                                             
 2/17/00               (S)  FIN AT  9:00 AM SENATE FINANCE 532                                                                  
 2/17/00               (S)  Heard & Held                                                                                        
 2/22/00               (S)  FIN AT  9:00 AM SENATE FINANCE 532                                                                  
 2/22/00               (S)  Moved CS(Fin) Out of Committee                                                                      
 2/22/00      2376     (S)  FIN RPT CS  6DP 2NR SAME TITLE                                                                      
 2/22/00      2377     (S)  DP: TORGERSON, PARNELL, PHILLIPS,                                                                   
 2/22/00      2377     (S)  PETE KELLY, DONLEY; NR: ADAMS, WILKEN                                                               
 2/22/00      2377     (S)  ZERO FISCAL NOTE (COURT)                                                                            
 2/23/00               (S)  RLS AT 12:00 PM FAHRENKAMP 203                                                                      
 2/23/00               (S)  MINUTE(RLS)                                                                                         
 2/25/00      2425     (S)  RLS TO CALENDAR AND 1 OR 02/25/00                                                                   
 2/25/00      2426     (S)  READ THE SECOND TIME                                                                                
 2/25/00      2426     (S)  FIN CS ADOPTED UNAN CONSENT                                                                         
 2/25/00      2426     (S)  ADVANCED TO THIRD READING                                                                           
                            2/28 CALENDAR                                                                                       
 2/28/00      2451     (S)  READ THE THIRD TIME CSSB 123(FIN)                                                                   
 2/28/00      2451     (S)  HELD IN THIRD READING TO                                                                            
                            2/29 CALENDAR                                                                                       
 2/29/00      2464     (S)  BEFORE THE SENATE IN 3RD READING                                                                    
 2/29/00      2465     (S)  PASSED Y15 N4 E1                                                                                    
 2/29/00      2465     (S)  COURT RULE(S) Y15 N4 E1                                                                             
 2/29/00      2465     (S)  ELLIS NOTICE OF RECONSIDERATION                                                                     
 3/01/00      2478     (S)  RECON TAKEN UP - IN THIRD READING                                                                   
 3/01/00      2479     (S)  PASSED ON RECONSIDERATION Y14 N5 A1                                                                 
 3/01/00      2479     (S)  COURT RULE(S) SAME AS PASSAGE                                                                       
 3/01/00      2480     (S)  TRANSMITTED TO (H)                                                                                  
 3/03/00      2382     (H)  READ THE FIRST TIME - REFERRALS                                                                     
 3/03/00      2382     (H)  JUD, FIN                                                                                            
 3/03/00      2382     (H)  REFERRED TO JUDICIARY                                                                               
 4/05/00               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
WITNESS REGISTER                                                                                                                
KRISTOPHER KNAUSS, Staff                                                                                                        
   to Senator Drue Pearce                                                                                                       
Alaska State Legislature                                                                                                        
Capitol Building, Room 111                                                                                                      
Juneau, Alaska  99801                                                                                                           
POSITION STATEMENT:  Presented SB 193 on behalf of sponsor.                                                                     
J.R. "RANDY" CARR, Chief/Labor Standards & Safety                                                                               
Wage & Hour                                                                                                                     
Division of Labor Standards & Safety                                                                                            
Department of Labor & Workforce Development                                                                                     
P.O. Box 107021                                                                                                                 
Anchorage, Alaska 99510-7021                                                                                                    
POSITION STATEMENT:  Testified on SB 193.                                                                                       
AL DWYER, Director                                                                                                              
Central Office                                                                                                                  
Division of Labor Standards & Safety                                                                                            
Department of Labor & Workforce Development                                                                                     
P.O. Box 21149                                                                                                                  
Juneau, Alaska 99802-1149                                                                                                       
POSITION STATEMENT:  Testified on SB 193.                                                                                       
MARGARET BAUMAN                                                                                                                 
8100 Lamplighter Court                                                                                                          
Anchorage, Alaska 99502                                                                                                         
POSITION STATEMENT:  Testified in support of SB 193.                                                                            
DARWIN PETERSON, Staff                                                                                                          
  to Senator John Torgerson                                                                                                     
  and the Senate Finance Committee                                                                                              
Alaska State Legislature                                                                                                        
Capitol Building, Room 516                                                                                                      
Juneau, Alaska  99801                                                                                                           
POSITION STATEMENT:  Presented SB 123 on behalf of the Senate                                                                   
Finance Committee, sponsor.                                                                                                     
JOSEPH CIZEK                                                                                                                    
30545 Eagle River Road                                                                                                          
Anchorage, Alaska  99577                                                                                                        
POSITION STATEMENT:  Testified on SB 123.                                                                                       
WEV SHEA, Attorney at Law                                                                                                       
329 F Street, Number 222                                                                                                        
Anchorage, Alaska  99501                                                                                                        
POSITION STATEMENT:  Testified that SB 123 does the state a real                                                                
disservice if this law is changed with regard to public interest                                                                
litigation relating to voting rights.                                                                                           
ROBIN SMITH                                                                                                                     
14100 Jarvi                                                                                                                     
Anchorage, Alaska  99501                                                                                                        
POSITION STATEMENT:  Testified in opposition to SB 123.                                                                         
DALE BONDURANT                                                                                                                  
31864 Moonshine Drive                                                                                                           
Soldotna, Alaska  99669                                                                                                         
POSITION STATEMENT:  Testified in opposition to SB 123.                                                                         
ACTION NARRATIVE                                                                                                                
TAPE 00-48, SIDE A                                                                                                              
Number 0001                                                                                                                     
CHAIRMAN PETE KOTT called the House Judiciary Standing Committee                                                                
meeting to order at 1:19 p.m.  All members were present at the call                                                             
to order.                                                                                                                       
CONFIRMATION HEARINGS                                                                                                           
Number 0054                                                                                                                     
CHAIRMAN KOTT announced that the committee would consider the                                                                   
confirmations of three individuals appointed by the Governor to the                                                             
following:  the Commission on Judicial Conduct, the Alaska Judicial                                                             
Council, and the Board of Governors of the Alaska Bar.  [Also                                                                   
addressed briefly, although not formally scheduled, was the                                                                     
reappointment of Shirley McCoy to the Select Committee on                                                                       
Legislative Ethics.]                                                                                                            
CHAIRMAN KOTT indicated he would not try to reach these appointees                                                              
by teleconference.  He reminded members that packets include a copy                                                             
of each person's resume.  He stated his understanding that each                                                                 
board, commission or council has six members, and each of these                                                                 
appointees is filling a public member position, with no                                                                         
prerequisites of specific educational background.  Chairman Kott                                                                
announced that unless there were questions that the committee                                                                   
wanted to field from these three appointees, he would like to move                                                              
their names forward.  He added that if there were concerns or                                                                   
questions, the committee could certainly hold the names over and                                                                
get those people on the teleconference line.  In answer to a                                                                    
question by Representative James, he specified that just one person                                                             
[Sharon Nahorney] is being reappointed.                                                                                         
Number 0170                                                                                                                     
REPRESENTATIVE GREEN asked whether there is any significance to the                                                             
fact that two appointees are "glamor queens."  He noted that [Ms.                                                               
Hoffman] had held the titles of Miss World Eskimo Indian Olympics                                                               
and Miss National Congress of American Indians, and [Ms. Nahorney]                                                              
had held the title of Runner-Up, Miss Fur Rendezvous.                                                                           
REPRESENTATIVE MURKOWSKI said she certainly wouldn't hold it                                                                    
against them.                                                                                                                   
Number 0210                                                                                                                     
REPRESENTATIVE JAMES told the chairman that she isn't pleased to                                                                
not be able to talk to these people, although she wouldn't make a                                                               
big issue of it.  She suggested the purpose of having these people                                                              
come before the legislature is to talk to them, at least, because                                                               
this is the only chance to hear from them at all.  However, she                                                                 
expressed willingness to move these names forward, at Chairman                                                                  
Kott's request.                                                                                                                 
CHAIRMAN KOTT restated that if anyone wants to hold these in                                                                    
committee to ask questions, he feels that the committee probably                                                                
should do so.  However, he himself had looked over their resumes                                                                
and hadn't seen anything unusual.                                                                                               
REPRESENTATIVE GREEN asked whether there is a time constraint on                                                                
getting these through the committee.                                                                                            
CHAIRMAN KOTT said he isn't sure; it depends on when the                                                                        
legislature adjourns.                                                                                                           
Commission on Judicial Conduct                                                                                                  
Number 0308                                                                                                                     
REPRESENTATIVE ROKEBERG moved that the committee take up the                                                                    
appointment of Sharon Nahorney of Anchorage to the Commission on                                                                
Judicial Conduct.  He said it is a reappointment, and he believes                                                               
that she is well known to everybody in the legislature.  He stated                                                              
that this [consideration of appointments] is no reflection on any                                                               
individual, nor is it binding on a vote to any member.  He                                                                      
recommended moving along with the process.                                                                                      
CHAIRMAN KOTT announced that the committee would, then, take up                                                                 
consideration of Sharon Nahorney of Anchorage, a reappointment                                                                  
whose initial appointment was in 1991.                                                                                          
REPRESENTATIVE ROKEBERG said, "So moved."                                                                                       
CHAIRMAN KOTT said that is the motion to move Ms. Nahorney's name                                                               
from the committee.  He agreed that signing the document is not                                                                 
binding on anybody.  He asked whether there was any objection.                                                                  
Hearing none, he announced that Ms. Nahorney's confirmation would                                                               
be advanced to the floor for further consideration.                                                                             
Alaska Judicial Council                                                                                                         
Number 0411                                                                                                                     
CHAIRMAN KOTT announced that the committee would consider the                                                                   
confirmation of Gigi Pilcher of Ketchikan to the Alaska Judicial                                                                
Council.  He asked whether anything in Ms. Pilcher's resume would                                                               
require bringing her before the committee either via teleconference                                                             
or in person; there was no response.  He commented on her extensive                                                             
work experience and the awards that she had received.  He also                                                                  
noted that she was the Ketchikan Public Servant of the Year in                                                                  
REPRESENTATIVE ROKEBERG commented that Ms. Pilcher appears to have                                                              
a long history of public service in Alaska.                                                                                     
REPRESENTATIVE KERTTULA pointed out that Ms. Pilcher has also                                                                   
served on the Alaska Sentencing Commission and the Alaska Juvenile                                                              
Justice Advisory Committee.                                                                                                     
REPRESENTATIVE MURKOWSKI proposed that based upon Ms. Pilcher's                                                                 
impressive resume, the committee should advance her name to the                                                                 
full body.                                                                                                                      
CHAIRMAN KOTT accepted that as a motion to move Ms. Pilcher's name                                                              
forward to the full body for confirmation.  He asked whether there                                                              
was any objection.  There being none, he announced that Ms.                                                                     
Pilcher's name would be advanced for confirmation.                                                                              
Board of Governors of the Alaska Bar                                                                                            
Number 0596                                                                                                                     
CHAIRMAN KOTT announced that the committee would consider the                                                                   
confirmation of Anastasia Cooke Hoffman of Bethel to the Board of                                                               
Governors of the Alaska Bar.                                                                                                    
REPRESENTATIVE ROKEBERG said he wonders what a "cultural navigator"                                                             
is in the Alaska Court System.  He asked whether it is a position                                                               
of employment.                                                                                                                  
REPRESENTATIVE KERTTULA conveyed her understanding that in the                                                                  
court system, especially in Bethel and Dillingham, one often runs                                                               
up against trying to explain a civil or criminal law system,                                                                    
regarding the right to remain silent, for example, versus a culture                                                             
that has existed for centuries that might go dramatically in other                                                              
directions.  It really is a difficult situation.  To her                                                                        
understanding, these people [cultural navigators] help explain the                                                              
system and guide people through it.                                                                                             
REPRESENTATIVE ROKEBERG said he assumes that is when people are not                                                             
represented by counsel.                                                                                                         
REPRESENTATIVE KERTTULA explained that she herself used to find, as                                                             
a public defender, that there simply were too many people to be                                                                 
able to do justice.  It really helps if people can come in and get                                                              
oriented better.  She said that is just a brief understanding of                                                                
what the job does.                                                                                                              
Number 0667                                                                                                                     
REPRESENTATIVE JAMES asked whether this is a reappointment.                                                                     
CHAIRMAN KOTT specified that it is a new appointment.                                                                           
REPRESENTATIVE JAMES asked how much work there is to this position.                                                             
She also asked whether Ms. Hoffman can do the job in Bethel or has                                                              
to travel to Anchorage, for instance.  She further inquired about                                                               
the extent of the activity that Ms. Hoffman would be doing as a                                                                 
member of the Board of Governors of the Alaska Bar.                                                                             
REPRESENTATIVE KERTTULA noted that she herself had been president                                                               
of the bar and was on the board for five years.  She explained that                                                             
there are meetings four times a year, quarterly.  Ms. Hoffman would                                                             
get a big packet of information, which she could read at home; she                                                              
could teleconference in, "but mostly we fly people in for those                                                                 
meetings."  Alluding to the fact that Ms. Hoffman's resume says she                                                             
has a two-year-old son and is expecting another child in January,                                                               
Representative Kerttula reported that she herself had a friend who                                                              
had served quite successfully on the board while she had a very                                                                 
young baby.  From Ms. Hoffman's resume and background, especially                                                               
because she used to work for the court system, Representative                                                                   
Kerttula said Ms. Hoffman looks like a great candidate for the                                                                  
REPRESENTATIVE JAMES agreed that it certainly is a good                                                                         
opportunity, but said she still would have liked to have heard it                                                               
from Ms. Hoffman herself.  She restated that she is willing,                                                                    
however, to move appointees forward because that method has been                                                                
CHAIRMAN KOTT pointed out that Ms. Hoffman had put a note on the                                                                
bottom of her resume saying she is currently unemployed and has                                                                 
chosen to leave to her position with the Alaska Court System to                                                                 
stay home with her son.  He suggested that Ms. Hoffman recognizes                                                               
the requirements for this position; although committed to her                                                                   
family life as well, she seems to understand what the commitment                                                                
would be to this particular position.                                                                                           
Number 0798                                                                                                                     
REPRESENTATIVE MURKOWSKI asked Representative Kerttula whether                                                                  
there is geographic representation required on the Board of                                                                     
Governors of the Alaska Bar.  She said it appears that there is a                                                               
requirement that members be from all of the judicial districts.                                                                 
REPRESENTATIVE KERTTULA answered:                                                                                               
     There is for the elected members of the bar.  For the                                                                      
     public members, there isn't, but I think that ... it's                                                                     
     often a voice that isn't represented because we don't                                                                      
     have many attorneys from Bethel.  So, normally, the                                                                        
     people that'll be elected will be from Fairbanks or that                                                                   
     district.  So it would be nice to have a person from that                                                                  
Number 0836                                                                                                                     
REPRESENTATIVE GREEN also addressed a question to Representative                                                                
Kerttula.  Noting that Ms. Hoffman has only been out of high school                                                             
for nine years, he asked whether that apparent lack of experience                                                               
would be a deterrent or handicap.                                                                                               
REPRESENTATIVE KERTTULA replied:                                                                                                
     The Board of Governors [of the Alaska Bar] even has an                                                                     
     established chair for young lawyers, because what happens                                                                  
     is we tend to get people who have been in the practice                                                                     
     quite a long period of time, so that it's really nice to                                                                   
     have younger people involved because there are a lot of                                                                    
     beginning lawyers, and sometimes we forget how difficult                                                                   
     it is for them.  So when we have the younger lawyers or                                                                    
     we have young people on the board, it gives more of a                                                                      
     balance, and you tend to realize not everybody knows all                                                                   
     the rules, the stresses that are on them.  So, at least                                                                    
     in my service on the board, it was really wonderful to                                                                     
     have that young lawyer position that we created.                                                                           
REPRESENTATIVE GREEN pointed out that Ms. Hoffman is not an                                                                     
REPRESENTATIVE KERTTULA said she understands that, but Ms. Hoffman                                                              
has quite a bit of experience with the court system and would be                                                                
looking at that generation and providing that input in the decision                                                             
Number 0975                                                                                                                     
REPRESENTATIVE KERTTULA made a motion to move Ms. Hoffman's name                                                                
forward for consideration.  There being no objection, the                                                                       
confirmation of Ms. Hoffman as an appointee was advanced for                                                                    
consideration of the full body.                                                                                                 
CHAIRMAN KOTT informed members that if anyone had questions between                                                             
now and whenever the confirmation is taken up by the full body, he                                                              
would encourage that member to call the appointee.                                                                              
Select Committee on Legislative Ethics                                                                                          
Number 1015                                                                                                                     
CHAIRMAN KOTT announced that the committee would take up                                                                        
consideration of Shirley McCoy's reappointment to the Select                                                                    
Committee on Legislative Ethics.  He noted that there is no formal                                                              
process required by statute of the House Judiciary Committee                                                                    
regarding Ms. McCoy's appointment.  However, initially members of                                                               
the Ethics Committee had appeared before the House Judiciary                                                                    
Committee several years ago when that body was formed.  Therefore,                                                              
the House Judiciary Committee has been given the opportunity to                                                                 
address anything unusual or of interest regarding why Ms. McCoy                                                                 
should or shouldn't be reappointed.                                                                                             
CHAIRMAN KOTT noted that he himself had served with Ms. McCoy for                                                               
a couple of years now, and has been impressed with her ability.  He                                                             
noted that although Ms. McCoy would go before the legislature for                                                               
confirmation, hers was not an appointment by the Governor.                                                                      
REPRESENTATIVE JAMES expressed amazement that Ms. McCoy is still                                                                
willing to do this job.  She said Ms. McCoy does a really good job                                                              
at a job that she herself would never want.                                                                                     
CHAIRMAN KOTT assured members that Ms. McCoy enjoys doing what she                                                              
does, which he suggested is probably the reason that she wants to                                                               
be reappointed.  He announced that he would advance Ms. McCoy's                                                                 
name to the full body if there was no objection from the committee                                                              
or questions; no objections or questions were offered.  He also                                                                 
noted that Ms. McCoy lives in Juneau, indicating that she could be                                                              
contacted if any questions arose.                                                                                               
SB 193 - COLLECTION OF UNPAID WAGES                                                                                             
CHAIRMAN KOTT announced the next order of business would be CS FOR                                                              
SENATE BILL NO. 193(FIN), "An Act relating to the payment of wages                                                              
and claims for the payment of wages."                                                                                           
Number 1158                                                                                                                     
KRISTOPHER KNAUSS, Staff to Senator Drue Pearce, Alaska State                                                                   
Legislature, came before the committee to present the bill.  He                                                                 
noted that SB 193 was introduced on behalf of a constituent,                                                                    
Margaret Bauman, who had obtained employment with the Alaska                                                                    
Business and Industry newspaper in the fall of 1998 on a                                                                        
contractual basis.  Over the course of her employment, wages were                                                               
illegally withheld from Ms. Bauman, and arrears reached over                                                                    
$10,000 before the employment relationship ceased.  Senate Bill 193                                                             
would raise the maximum cap to $20,000 for which the Department of                                                              
Labor & Workforce Development (DOLWD) may bring an action as a                                                                  
small claim; existing law reads $7,500, excluding attorney fees.                                                                
MR. KNAUSS noted that Ms. Bauman had had a difficult time obtaining                                                             
her lost wages because it is difficult for attorneys to take these                                                              
types of cases on a contingency fee basis.  In talking with the                                                                 
department, he said, the bill contains a zero fiscal note.  The                                                                 
department would expect about 120 cases annually as the result of                                                               
the change, which would not impact the department.  He noted that                                                               
department representatives were online via teleconference to answer                                                             
any technical questions.                                                                                                        
Number 1251                                                                                                                     
CHAIRMAN KOTT asked Mr. Knauss why the figure is $20,000 and not                                                                
$25,000, $30,000, or an unlimited amount, for example.                                                                          
MR. KNAUSS said he is not sure.  He deferred the question to a                                                                  
representative of the DOLWD.                                                                                                    
Number 1301                                                                                                                     
J.R. "RANDY" CARR, Chief/Labor Standards & Safety, Wage & Hour,                                                                 
Division of Labor Standards & Safety, Department of Labor &                                                                     
Workforce Development (DOLWD), testified via teleconference from                                                                
Anchorage.  The department has been looking at addressing this                                                                  
problem for some years, he said, and they have been talking with                                                                
both defense and plaintiffs' [counsel].  The $20,000 is a threshold                                                             
value that existed before a private attorney would be interested in                                                             
taking a case to court.  For anything under that figure, most                                                                   
private attorneys would not be able to make any money.  The figure,                                                             
therefore, fills that gap between cases that the department is                                                                  
presently able to pursue and those cases that would attract the                                                                 
interest of private counsel.                                                                                                    
CHAIRMAN KOTT asked Mr. Carr whether a figure would have to be more                                                             
than $20,000 in order to attract a private attorney.                                                                            
MR. CARR replied, "That's correct, sir."                                                                                        
Number 1351                                                                                                                     
REPRESENTATIVE JAMES stated her understanding that an attorney is                                                               
not needed for a small claims case because it is cut-and-dried in                                                               
a lot of ways and there has been an admission that a debt is owed.                                                              
Furthermore, a small claims case with a figure below $20,000 that                                                               
isn't settled would still have to go someplace else for resolution.                                                             
In that regard, a figure of $20,000 might preclude some valid cases                                                             
from being settled without an attorney.                                                                                         
Number 1411                                                                                                                     
MR. CARR pointed out that the cap for small claims cases would not                                                              
change for the private sector.  The bill only amends the limit for                                                              
a case that may be brought by the DOLWD.  Therefore, a person who                                                               
is not coming to the department for resolution would not be able to                                                             
pursue a small claims case on his or her own if the figure exceeded                                                             
$7,500.  That person would have to file a case in district court.                                                               
Number 1446                                                                                                                     
REPRESENTATIVE MURKOWSKI noted that the sponsor statement reads,                                                                
"... SB 193 increases the amount of past wages that employees are                                                               
allowed to retain from $7,500 to $20,000 ...."  However, according                                                              
to her understanding, the bill increases the amount that the DOLWD                                                              
can take on as a claim in small claims court.  It doesn't have                                                                  
anything to do with past wages that employees can retain.                                                                       
MR. KNAUSS affirmed that.                                                                                                       
Number 1503                                                                                                                     
REPRESENTATIVE GREEN noted that the sponsor statement reads, "...                                                               
SB 193 will update the law, making it possible for attorneys and                                                                
the DOLWD to pursue small wage claims ...."  Yet the bill only                                                                  
refers to the department, he said; it doesn't refer to an attorney                                                              
or anyone else for that matter to bring action.  He asked whether                                                               
it is believed that only the DOLWD should have that prerogative or                                                              
whether he is misreading the sponsor statement.                                                                                 
Number 1554                                                                                                                     
MR. CARR replied that the intent of the DOLWD, in working with                                                                  
Senator Pearce on the bill, was only to increase the statutory                                                                  
jurisdiction for the department to pursue cases, not for private                                                                
counsel.  As he indicated earlier, private counsel can very rarely                                                              
be obtained to pursue a case on behalf of a wage claimant if the                                                                
value is less than $20,000.  The private bar, he said, really                                                                   
doesn't seem to be interested in pursuing cases for less than                                                                   
$20,000, whether an action is brought to small claims court or                                                                  
district court.  In relation to an individual taking a case on his                                                              
or her own motion without counsel, the department's experience has                                                              
been that the average wage claimant is not really equipped, even at                                                             
the $7,500 limit, to represent himself or herself against an                                                                    
employer.  The department doesn't think that would change if the                                                                
small claims jurisdiction were opened to allow a private party to                                                               
pursue a case of up to $20,000.  It would provide a venue, but it                                                               
would not be effectively utilized because of a lack of expertise in                                                             
the system.  The department, he said, feels that they are equipped                                                              
to represent cases in relation to an increase in the small claims                                                               
Number 1645                                                                                                                     
REPRESENTATIVE GREEN wondered about the logic behind what Mr. Carr                                                              
is saying.  In other words, a person would have to go through the                                                               
Department of Law for a claim of $19,500, which is still 1.5 times                                                              
what one is able to do under the existing value of $7,500.  It                                                                  
seems that if a person doesn't want to do it, that's one thing, but                                                             
Mr. Carr is saying that a person can't do it, which is                                                                          
significantly different.                                                                                                        
MR. CARR replied that the department's motivation in working with                                                               
the sponsor was to only expand the abilities of the department.                                                                 
The department was not looking at expanding all sorts of venues for                                                             
other parties to use small claims court to pursue wage claims.  In                                                              
that regard, the department would not be able to project the impact                                                             
on the court system.  The department, however, knows what the                                                                   
impact would be and could project the impact on the court system on                                                             
the cases that they turn away, but they could not project the                                                                   
impacts in relation to private parties or counsel.                                                                              
Number 1721                                                                                                                     
REPRESENTATIVE GREEN commented that it seems ridiculous that a                                                                  
skilled attorney working for someone else would be barred from                                                                  
small claims court.                                                                                                             
Number 1735                                                                                                                     
REPRESENTATIVE KERTTULA said she understands that the DOLWD is                                                                  
trying to carve out an exemption for small claims, and that they                                                                
don't want to affect all kinds of small claims actions.  She said:                                                              
     You could change this so that you would say any small                                                                      
     claim dealing with wages under the statute, couldn't you?                                                                  
     ... I'm with you.  I think that people don't go to court,                                                                  
     period, without an attorney anymore, and that they just                                                                    
     are intimidated, even if it is small claims [court].  But                                                                  
     say you've got someone who really is willing to do it                                                                      
     rather than have to go through the department; if they                                                                     
     really wanted to do it, maybe we would increase it just                                                                    
     for that.  But I'm not sure about the statutory cites.                                                                     
     I mean, if that's just Department of Labor [& Workforce                                                                    
     Development] going -- but, anyway, does that make any                                                                      
MR. CARR replied that conceptually it makes sense, but the                                                                      
department is seeing a trend in employers hiring an attorney and                                                                
bumping a case out of small claims court and into district court in                                                             
the hope that the department will drop the case.  And by letting                                                                
anyone get involved for cases involving up to $20,000, he expects                                                               
that to be the rule rather than the exception.  As a result, an                                                                 
individual who is filing his or her own motion would have to obtain                                                             
counsel or drop the case.  And attorneys representing someone "on                                                               
the cheap" in small claims court would end up investing time and                                                                
effort in district court, which they were trying to avoid in the                                                                
first place.                                                                                                                    
REPRESENTATIVE KERTTULA said that is a good explanation.                                                                        
Number 1846                                                                                                                     
REPRESENTATIVE ROKEBERG said the bill is intended to give the                                                                   
department the authority to use the court and help them to resolve                                                              
a claim prior to going to court.  He asked Mr. Carr whether most                                                                
claims are resolved prior to going to court.                                                                                    
MR. CARR affirmed that.  Perhaps 85 to 90 percent of cases are                                                                  
resolved administratively.  The remainder are either determined to                                                              
be invalid after an investigation or are filed in court.  Of the                                                                
cases filed in court, only about one-half actually go to trial.                                                                 
The increase in allowing the department to initially accept a wage                                                              
claim for up to $20,000 would give them the ability to make contact                                                             
with an employer and attempt to resolve matters administratively.                                                               
The department believes that they would still resolve the "lion's                                                               
share" of these cases short of having to file a court action.                                                                   
Number 1914                                                                                                                     
REPRESENTATIVE ROKEBERG said the bill keeps people out of the                                                                   
district court and keeps them in a simpler venue for proceedings;                                                               
in that regard, he thinks that it would save the court system                                                                   
money. He suggested that unless the legislature is willing to                                                                   
revisit the issue of raising the cap on the small claims court,                                                                 
that may create a large fiscal note to the court system; he                                                                     
mentioned getting testimony from the Alaska Court System about                                                                  
that.  He further suggested that it is a Pandora's box.  He added:                                                              
     I'd be very concerned about doing that because that would                                                                  
     give anybody that right to walk in there without counsel                                                                   
     to try to take some of these cases on, and we've heard                                                                     
     testimony that ... they can be moved into district court                                                                   
     by the lawyer's counsel, ... if that's the case. ...                                                                       
     That's the kind of issue we're getting into on balance.                                                                    
Number 1983                                                                                                                     
REPRESENTATIVE GREEN asked Mr. Carr what the department would do                                                                
with a $25,000 claim.  Would the department attempt to settle out                                                               
of court as well?                                                                                                               
MR. CARR replied that if it is a straight wage claim under AS                                                                   
23.05, then the department would not be able to take the wage claim                                                             
or contact the employer or make any attempts to resolve it.                                                                     
However, the department may be able to take a case that involves a                                                              
mix of minimum wage or overtime and wages - so that both AS 23.05                                                               
and AS 23.10 are in effect - because there is no cap on the amount                                                              
of money that the department can pursue in relation to minimum wage                                                             
claims and overtime.  There are practical limitations in relation                                                               
to filing a matter in small claims court, however, and whether or                                                               
not the department has the wherewithal to take the case through the                                                             
Office of the Attorney General in district or superior court.                                                                   
Number 2026                                                                                                                     
REPRESENTATIVE GREEN said:                                                                                                      
     Well, my concern ... is that you [Mr. Carr] testified                                                                      
     that the majority of these are settled out of court and                                                                    
     then those do half of those are dropped later, so we're                                                                    
     talking about a relatively small number that only ...                                                                      
     this department has the right to go up.  It seems to me                                                                    
     you're crafting a speciality bill, because now you can                                                                     
     actually see some merit to it, because it's high enough                                                                    
     to excite you but you don't want anybody else in there.                                                                    
     And if you leave it the way it is, you may still be                                                                        
     trying to defend somebody, that small number that aren't                                                                   
     settled out of court, and allow you to get some higher                                                                     
     recompense.  And I still am having difficulty why that's                                                                   
     necessarily a good idea.  I don't know that it would act                                                                   
     as a deterrent, as Representative Rokeberg said, because                                                                   
     you settle out of court now in most of them anyway.                                                                        
Number 2070                                                                                                                     
MR. CARR responded that the department does settle the majority of                                                              
their cases under the $7,500 cap, and raising that cap would give                                                               
them the ability to handle larger cases and represent those who                                                                 
can't find representation now due to the size of their case.  He                                                                
hopes that they would be able to continue their track record of                                                                 
settling cases administratively.  It would do the department little                                                             
good to simply be able to take those cases if they did not have the                                                             
ability to pursue them in court as the ultimate "hammer," if they                                                               
were unable to bring the employer to the table and settle the                                                                   
matter administratively.                                                                                                        
Number 2104                                                                                                                     
REPRESENTATIVE GREEN asked Mr. Carr whether the $20,000 figure was                                                              
arrived at arbitrarily or is a "break" between those cases that the                                                             
department would like to take and those that they figure need to                                                                
got to court.                                                                                                                   
MR. CARR replied no, it is not a break per se but a dollar value                                                                
that has been provided to the department by members of both the                                                                 
defense and the plaintiffs' bar.  Both agree that a case under                                                                  
$20,000 cannot be taken for any profit.  As a result, they turn                                                                 
clients away routinely if a case is less than $20,000, and the                                                                  
department turns clients away if a case is over $7,500.  The result                                                             
is that individuals like Margaret Bauman can't get representation                                                               
and can't get their cases to court.  In response to a question by                                                               
Representative Green regarding whether the $20,000 is an arbitrary                                                              
number, Mr. Carr said no, the figure of $20,000 was agreed upon and                                                             
suggested to the department by the plaintiffs' bar.  The department                                                             
originally was looking at a figure of $15,000, and several members                                                              
of the plaintiffs' bar had said they wouldn't take a case for less                                                              
than $20,000.  When the department had discussed the matter with                                                                
the sponsor of the bill, $20,000 was agreed upon.                                                                               
Number 2160                                                                                                                     
REPRESENTATIVE CROFT referred to Section 6 of the bill, which read:                                                             
     Sec. 6. AS 23.05.220(c) is amended to read:                                                                                
     (c) The department may not accept an assignment of a                                                                       
     claim in excess of the amount set out in AS 22.15.040 as                                                                   
     the maximum amount, exclusive of costs, interest, and                                                                      
     attorney fees, for the jurisdiction of the district court                                                                  
     to hear an action for the payment of wages as a small                                                                      
He noted that the department is limited to the jurisdiction of                                                                  
small claims court.  In that regard, the department can't take an                                                               
assignment that would go to district court.                                                                                     
MR. CARR explained that the department can take an assignment that                                                              
goes to district or superior court, but for those cases the                                                                     
department has to rely on resources of the Office of the Attorney                                                               
General to represent them.  He pointed out that the bill deals with                                                             
two different sets of statutes.  In AS 23.05, a straight wage claim                                                             
cap that does not include overtime or minimum wage is set                                                                       
traditionally at a smaller level.  It was originally set at $250,                                                               
then was raised to $1,000, $2,000, and $5,000, and now it is set at                                                             
$7,500 and tied to the small claims limitation because that is                                                                  
where the effective leverage is, in being able to pursue these                                                                  
matters at essentially no cost to the state.  In that regard, the                                                               
department represents themselves, and they do not have to have the                                                              
Office of the Attorney General represent them.  The department pays                                                             
for every minute of time that they get out of the Office of the                                                                 
Attorney General.  The department can take larger cases, he added,                                                              
but they have to pick and choose.  The department cannot take every                                                             
case over the $7,500 level to court because they have a limited                                                                 
budget for their attorneys.                                                                                                     
Number 2227                                                                                                                     
REPRESENTATIVE CROFT conveyed his understanding that Section 6                                                                  
limits the department to the jurisdiction of the small claims court                                                             
cases unrelated to overtime and the minimum wage.  In that regard,                                                              
if a claim doesn't involve overtime or the minimum wage, the                                                                    
department can't go past the jurisdiction of the small claims                                                                   
court, which is $7,500.                                                                                                         
MR. CARR affirmed that.                                                                                                         
REPRESENTATIVE CROFT asked Mr. Carr whether the department's                                                                    
jurisdiction is unlimited in the areas of overtime and the minimum                                                              
MR. CARR replied, "That's correct."                                                                                             
REPRESENTATIVE CROFT noted that he has been concerned about small                                                               
claims for a while now.  He had introduced legislation last year or                                                             
the year before, together with Representative Fred Dyson, that                                                                  
would have increased the jurisdiction of small claims court.  He                                                                
noted that small claims court has relaxed rules of evidence, and,                                                               
in general, the judge is more free to help the parties through the                                                              
process.  It is less confrontational and costs less, but it takes                                                               
more of the court system's time, which is what he suggested                                                                     
Representative Rokeberg is worried about.  Representative Croft                                                                 
further stated that the court system worries every time that the                                                                
legislature extends the jurisdiction of the small claims court                                                                  
because their judges have to spend more time helping the parties                                                                
along.  He referred to an e-mail dated February 5, 2000, from Will                                                              
Schendel, and read the following excerpt from it:                                                                               
     There are two solution to this problem:  One solution is                                                                   
     to make a statutory change to award the winning employee                                                                   
     a full recovery of attorney fees, as is currently the                                                                      
     case for suits over unpaid minimum or overtime wages.                                                                      
     My first preference, then, is for the legislature to put                                                                   
     some real teeth into the unpaid wage assignment law in                                                                     
     Anchorage [Alaska] by encouraging the private bar to take                                                                  
     more of these cases (through an award of full attorney                                                                     
     fees); at the same time, the cap on wage and hour                                                                          
     assignments could be raised, so that wage and hour could,                                                                  
     if it had the resources and time, take more of the                                                                         
     claims, ...                                                                                                                
REPRESENTATIVE CROFT said:                                                                                                      
     The difficulty we're in here is decisions about how and                                                                    
     if to pursue your claim are not made on the merits of the                                                                  
     claim; they're made on jurisdiction of the small claims                                                                    
     court and your ability to find an attorney that can                                                                        
     represent you at that.  And for small amounts, you could                                                                   
     have the most ironclad - factually and legally - claim;                                                                    
     you were simply not paid what was due under the law ....                                                                   
     And if it's a sizeable enough issue, if it's ten thousand                                                                  
     dollars, you can't bring it yourself in small claims                                                                       
     court and get the full amount, and you can't really                                                                        
     afford to get an attorney, so you either go without                                                                        
     representation in court -- but you're worried here not                                                                     
     about the merits, which is what seems to me ... that                                                                       
     litigants should be worried about.  Do I have a good                                                                       
     claim?  Do I have one that is correct?                                                                                     
     No matter how good your claim, you can't get it heard in                                                                   
     a cost-effective manner.  And ... whoever Mr. Schendel is                                                                  
     was saying ... that you can fix this by doing what we do                                                                   
     in overtime minimum wage.  If you win, then you will get                                                                   
     paid your attorney fees and costs.  That means you can                                                                     
     now evaluate things not on necessarily the size of the                                                                     
     claim but its merits.  And ... it seems to me we're                                                                        
     dancing around a problem, that there's ... no problem                                                                      
     with what the bill tries to do, except that it may not                                                                     
     try to do enough of the problem to really cure it.                                                                         
     Raising the jurisdiction will allow them, just them, to                                                                    
     take certain cases on their own to district court, but it                                                                  
     doesn't solve a lot of the problems Representative Green                                                                   
     was talking about, and it does seem to me that it's going                                                                  
     to take more of your time, [Mr. Carr].  I mean, it won't                                                                   
     be attorney general time; it won't be as costly, but                                                                       
     isn't this going to lead to you more often in district                                                                     
     court in those cases that go from seventy-five hundred to                                                                  
     twenty thousand?  And why is there a zero fiscal note?                                                                     
Number 2410                                                                                                                     
MR. CARR answered that Representative Croft is correct in that it                                                               
would take more of the department's time, but that is their job.                                                                
In regard to the zero fiscal note, the department would expect to                                                               
see a 10 percent increase in wage claim load, statewide, which                                                                  
equates to about 100 to 120 new cases.  As he had indicated                                                                     
earlier, the department settles about 85 percent to 90 percent of                                                               
the cases; in that way, if that number holds true, the department                                                               
is only looking at about 10 to 12 cases that make it to a filing                                                                
level in small claims court.  Mr. Carr said he is not going to be                                                               
that naive, however.  He thinks that when talking about a larger                                                                
dollar value, the department is going to see a larger percentage of                                                             
cases that don't get resolved and have to go to small claims court                                                              
for action.  The department is looking at approximately 50 cases                                                                
statewide that would have to be filed in small claims court.                                                                    
Historically, he noted, only half of the cases filed end up in                                                                  
trial, which equates to an amount that the department believes can                                                              
absorb with existing staff by making some internal adjustments.                                                                 
Number 2473                                                                                                                     
REPRESENTATIVE CROFT said there seem to be two ways to go in the                                                                
event an employer does not pay what was due under the law.  One is                                                              
to empower the government to represent a person in more claims,                                                                 
which will cost more money and more government employees at some                                                                
point.  He commented that it is generous of the DOLWD to think that                                                             
they can absorb the extra work now, but at some point they will ask                                                             
for more people to represent employees in court.                                                                                
TAPE 00-48, SIDE B                                                                                                              
Number 0001                                                                                                                     
REPRESENTATIVE CROFT suggested it won't be a zero fiscal note                                                                   
forever.  The other way is for the government to take a claim for                                                               
a person.  He thinks that the legislature should directly confront                                                              
that difficulty by providing authorization for the department to                                                                
get the attorney fees and costs if they win in certain categories                                                               
of actions.                                                                                                                     
Number 0024                                                                                                                     
REPRESENTATIVE JAMES agreed with Representative Croft in that small                                                             
claims ought to be increased to a higher amount, but she believes                                                               
that there would be a huge fiscal note.  Her rationale is that if                                                               
$20,000 is the bottom line for getting an attorney to represent a                                                               
claimant, those with valid claims ought to be able to go to small                                                               
claims court; otherwise, a person with a claim between $7,500 and                                                               
$20,000 is left "out in the cold."  Noting that the DOLWD has                                                                   
experts in this respect, she agreed with Mr. Carr that this is                                                                  
their job, and that they should represent the workers in Alaska.                                                                
Representative James said she understands the $20,000.  Although                                                                
she would like to have it a little higher on these cases, she would                                                             
go along with whatever people say they are willing to accept on                                                                 
Number 0142                                                                                                                     
REPRESENTATIVE GREEN remarked that he would certainly subscribe to                                                              
the concept expressed by Representative Croft in which the winning                                                              
side would get pay the attorney fees; in that way, it would act as                                                              
another deterrent from going to court.  He asked Mr. Carr how much                                                              
of an attorney's time is charged against preparation, whether a                                                                 
case goes to court or goes to negotiation.  It seems that these                                                                 
cases would require an attorney's time, he said, but maybe not a                                                                
court's time, which has got to affect the department.                                                                           
REPRESENTATIVE CROFT commented that Mr. Carr is going to get                                                                    
himself into trouble for indicating that the department can absorb                                                              
the extra cases.                                                                                                                
Number 0180                                                                                                                     
MR. CARR explained that the department "cheats" in that they don't                                                              
have any attorneys on staff; they instead have trained wage and                                                                 
hour investigators on staff that handle the cases, including doing                                                              
the footwork, investigating, auditing, negotiating and prosecuting                                                              
of a case in small claims court if a matter cannot be resolved.  In                                                             
that regard, the department pays the investigators a salary and                                                                 
does not have to pay attorney fees as part of a contractual line                                                                
item in their budget.                                                                                                           
REPRESENTATIVE GREEN pointed out that it sounds as if there is                                                                  
money involved nevertheless.                                                                                                    
MR. CARR noted that the department has seven wage and hour                                                                      
investigators statewide who are employed on a full-time basis.                                                                  
Number 0214                                                                                                                     
REPRESENTATIVE CROFT indicated there would be weeding out and                                                                   
settling for the cases handled by the department.                                                                               
MR. CARR replied, "That's correct."  The weeding out process, he                                                                
hopes, will involve for the most part a settlement and a collection                                                             
on behalf of the employee.                                                                                                      
Number 0239                                                                                                                     
REPRESENTATIVE GREEN asked Mr. Carr whether it is correct that a                                                                
judge or magistrate could hear a claim with the increased cap.                                                                  
MR. CARR affirmed that.                                                                                                         
Number 0253                                                                                                                     
REPRESENTATIVE GREEN noted that the qualifications to be a                                                                      
magistrate are that a person has to be 21 years of age and a                                                                    
resident of the state for six months.  He asked whether the sponsor                                                             
would be willing to go before an untrained magistrate for a $20,000                                                             
MR. CARR replied that he can't speak for the sponsor, but in most                                                               
instances when the department ends up in small claims court, a                                                                  
major part of their job is to educate the bench in relation to the                                                              
requirements of the statute, the applicability of state law, and                                                                
case precedent.  The department has found that the parties sitting                                                              
on the bench are amenable to having that type of information                                                                    
presented and that they are generally capable of absorbing the                                                                  
information and rendering a proper decision.                                                                                    
REPRESENTATIVE GREEN commented, "At no extra cost."                                                                             
CHAIRMAN KOTT responded, "And that's at no extra cost."  It's                                                                   
almost like going before the youth court.                                                                                       
Number 0304                                                                                                                     
REPRESENTATIVE MURKOWSKI noted that in her "former life" as an                                                                  
acting magistrate, she had heard wage and hour claims.  The                                                                     
statutes are, as Mr. Carr has indicated, pretty cut-and-dried.  It                                                              
isn't as if there would be a full court hearing where both sides                                                                
are going down all kinds of "rabbit trails."  The claims and                                                                    
defenses are pretty straightforward.  If the dollar amount is                                                                   
increased, she said, it wouldn't get that much more complex.                                                                    
Number 0346                                                                                                                     
REPRESENTATIVE JAMES remarked that her experience with small claims                                                             
court is that the case has to be cut-and-dried; otherwise, it is                                                                
pushed to district court.                                                                                                       
Number 0362                                                                                                                     
REPRESENTATIVE GREEN recalled that he had gone to small claims                                                                  
court six times when the cap was at $2,000.  Although he had won                                                                
all six cases, it did no good because he never got any money.                                                                   
Number 0377                                                                                                                     
CHAIRMAN KOTT stated that he is glad to hear Mr. Carr finally say                                                               
that there would be an increase in the number of cases that the                                                                 
department would not be able to remedy administratively based on a                                                              
higher threshold.  Chairman Kott said he believes that if the                                                                   
amount increased, the department would find themselves before a                                                                 
magistrate or in court more often.  He asked Mr. Carr whether there                                                             
is a difference in whether the department represents an individual                                                              
as an employee or as a contract laborer.                                                                                        
Number 0414                                                                                                                     
MR. CARR answered that the department is able to represent only an                                                              
employee.  The term "contract labor" is a misnomer that is used                                                                 
frequently by employers and employees, but as a term of art it                                                                  
means very little.  In that regard, there are problems in                                                                       
determining whether someone is an employee or a legitimate                                                                      
independent contractor, and much of the investigation may involve                                                               
determining that status.  If someone is found to be an independent                                                              
contractor in accordance with the criteria established by the state                                                             
supreme court, the department will not pursue the case.                                                                         
Number 0442                                                                                                                     
CHAIRMAN KOTT asked Mr. Carr whether the criteria the department                                                                
uses have already been determined by the state supreme court.                                                                   
MR. CARR said yes, they were determined in 1981 with a case                                                                     
involving Jacko (ph) v. State.                                                                                                  
Number 0460                                                                                                                     
CHAIRMAN KOTT asked Mr. Carr what the available remedy is for a                                                                 
MR. CARR replied that any independent contractor in a business                                                                  
relationship has full use of the court system to resolve any civil                                                              
complaint, but one would have to pursue a claim on one's own and                                                                
through the private sector.                                                                                                     
CHAIRMAN KOTT commented that he hopes it is above $20,000.                                                                      
Number 0486                                                                                                                     
AL DWYER, Director, Central Office, Division of Labor Standards &                                                               
Safety, Department of Labor & Workforce Development, came before                                                                
the committee to testify.  He told members that when the department                                                             
was first presented with the bill, they really didn't have any idea                                                             
the number of cases that they would be facing.  Based on Mr. Carr's                                                             
experience and some of the investigator's experience, they assumed                                                              
that there would probably be 100 additional cases in which 90 would                                                             
be handled administratively.  It seems that has changed.  He asked                                                              
Mr. Carr to indicate what had changed his mind.                                                                                 
MR. CARR said his faith in human nature.                                                                                        
Number 0541                                                                                                                     
REPRESENTATIVE CROFT referred to AS 23.10.110(c), which reads as                                                                
     (c) The court in an action brought under this section                                                                      
     shall, in addition to a judgment awarded to the                                                                            
     plaintiff, allow costs of the action and, except as                                                                        
     provided in (e) - (h) of this section, reasonable                                                                          
     attorney fees to be paid by the defendant.  The attorney                                                                   
     fees in the case of actions brought under this section by                                                                  
     the commissioner shall be remitted by the commissioner to                                                                  
     the Department of Revenue.  The commissioner may not be                                                                    
     required to pay the filing fee or other costs.  The                                                                        
     commissioner in case of suit has power to join various                                                                     
     claimants against the same employer in one cause of                                                                        
REPRESENTATIVE CROFT said the subsection specifically references                                                                
the minimum wage and overtime.  He asked Mr. Carr what sections                                                                 
could be added to include other wage-type claims.                                                                               
MR. CARR replied that Representative Croft is referencing the                                                                   
Alaska Wage and Hour Act, which mandates the payment of minimum                                                                 
wage and overtime.  The area of issue today is found under Chapter                                                              
5 of Title 23, which gives the department authority to pursue                                                                   
claims for wages and contract amounts such as unpaid benefits.                                                                  
Chapter 5 of Title 23 does not address any statutory obligation to                                                              
pay minimum wage or overtime; it is primarily contractual in                                                                    
nature.  The two statutes function in a "parallel universe," he                                                                 
said, but the enforcement is separate.  The enforcement for minimum                                                             
wage and overtime is found under AS 23.10.110, and the enforcement                                                              
for anything else not related to minimum wage or overtime is found                                                              
under AS 23.05.  In effect, they are two different programs.  He                                                                
noted that the minimum wage and overtime statute does not have a                                                                
cap, while all other wages and debts due to an employee are subject                                                             
to a cap in regard to the amount that the department can pursue.                                                                
Number 0650                                                                                                                     
REPRESENTATIVE CROFT asked Mr. Carr whether AS 23.05.180, "Wages in                                                             
dispute," is the central section, while the others talk about who                                                               
can hear a claim and when.                                                                                                      
MR. CARR replied, "No."  He explained that AS 23.05.180, "Wages in                                                              
dispute," deals with the waiting time for penalties found in AS                                                                 
23.05.140.  The actual authority to pursue a claim is found in AS                                                               
23.05.220, "Assignment of liens and claims to department."  Up                                                                  
until 1998, the actual dollar cap was listed in that section.  In                                                               
1998, the statute was amended to tie the dollar value of a wage                                                                 
claim to the small claims jurisdiction, which increased to $7,500                                                               
in 1997.                                                                                                                        
Number 0739                                                                                                                     
MARGARET BAUMAN testified via teleconference from Anchorage in                                                                  
support of SB 193.  At present, the DOLWD can only pursue amounts                                                               
up to $7,500, but her former employer, Business News Alaska, owes                                                               
her in excess of $10,000 and has refused to pay.  They have                                                                     
acknowledged that they owe her money; they are essentially arguing                                                              
that she was a contract laborer and have brought the case to the                                                                
state DOLWD, who have found in the initial process and in the                                                                   
appeals process that she was an employee - as did the Internal                                                                  
Revenue Service.  She said they have appealed the case to the                                                                   
commissioner level, and she is sure they will appeal it to the                                                                  
state superior court.  It is a good thing that the department is on                                                             
her side, she said, because she cannot afford an attorney.                                                                      
MS. BAUMAN noted that at the time she was working for Business News                                                             
Alaska, she was taking care of an elderly parent who required 24-                                                               
hour care, so she needed a job that would allow her to take care of                                                             
her mother; that was the reason she stayed with the job.  She                                                                   
commented that she would fax information to the committee which                                                                 
indicates the amount owed, as well as the results of a database                                                                 
search in relation to the individual who hired her, Kay Cashman.                                                                
The information indicates that Ms. Cashman has a track record of                                                                
debts all over the state.  It seems that when an employer is                                                                    
allowed to operate outside of the law, it creates a severe                                                                      
disadvantage for those employers who are willing to abide by state                                                              
law, Ms. Bauman concluded.                                                                                                      
Number 0970                                                                                                                     
CHAIRMAN KOTT indicated to Ms. Bauman that the committee had a copy                                                             
of her testimony.                                                                                                               
Number 0896                                                                                                                     
CHAIRMAN KOTT asked whether there were further testifiers on                                                                    
teleconference, then closed the meeting to public testimony.                                                                    
Number 0910                                                                                                                     
REPRESENTATIVE CROFT noted that the overtime and minimum wage                                                                   
sections in statute that allow for awards of attorney fees and                                                                  
costs for prevailing parties seem to be pretty comprehensive.  In                                                               
that regard, they allow an award to the plaintiff unless the                                                                    
defendant shows, by clear and convincing evidence, that the act or                                                              
omission giving rise to the action was made in good faith, and the                                                              
defendant had reasonable grounds for believing it.  It seems to be                                                              
balanced in that there is a way out for the defendant-employer.                                                                 
That type of arrangement, he said, would allow for individuals like                                                             
Ms. Bauman to prosecute a claim on their own and to have a claim                                                                
judged on its merits instead of on a dollar amount.  He said he has                                                             
been trying to formulate a conceptual amendment in relation to the                                                              
above, but isn't sure where to place it.                                                                                        
Number 0986                                                                                                                     
REPRESENTATIVE CROFT made a motion to adopt a conceptual amendment                                                              
[Amendment 1] to add provisions similar to those that apply to                                                                  
overtime and minimum wage claims, specifically AS 23.10.110, that                                                               
describe the ability to get attorney fees in a prevailing situation                                                             
relating to "Article 2."                                                                                                        
Number 1018                                                                                                                     
REPRESENTATIVE JAMES objected.  She explained that she appreciates                                                              
the efforts of Representative Croft, but this is a much larger                                                                  
issue than simply including a conceptual amendment in that                                                                      
particular section in statute.  She is not familiar with Ms.                                                                    
Bauman's case, but individuals really need to go to the DOLWD to                                                                
resolve issues of contract laborers versus employees.                                                                           
Representative Croft's conceptual amendment reduces the need for                                                                
the cap to be changed from $7,500 to $20,000, which is an important                                                             
opportunity for the department to go to small claims court, because                                                             
it is the most expeditious and quick way in light of the fact that                                                              
individuals need their money.  She acknowledged that one does not                                                               
always obtain the money owed because the judgment has to be taken                                                               
and a method of collection has to be attached.  From her                                                                        
experience, however, people who do not receive their paychecks are                                                              
hurting.  Therefore, the faster those folks can receive relief, the                                                             
better.  She feels that this can be achieved the fastest through                                                                
small claims court, if the situation fits.                                                                                      
REPRESENTATIVE JAMES remarked that she wouldn't want to do                                                                      
something that would eliminate the bill's purpose; she said the                                                                 
department is very, very good at these issues.  She suggested this                                                              
could be in a separate bill, but emphasized the need to hear from                                                               
the public in regard to how it would affect both employers and                                                                  
employees.  She doesn't believe it is appropriate to include in the                                                             
present bill and would vote "no" on the amendment.                                                                              
Number 1152                                                                                                                     
REPRESENTATIVE KERTTULA surmised that one problem is that the                                                                   
DOLWD, in the other cases, cannot obtain the full attorney fees.                                                                
She indicated this [amendment] would also resolve that issue.                                                                   
MR. CARR noted that he has been doing this for 25 years; in that                                                                
time, he can count on one hand the number of cases in which                                                                     
attorney fees have been seen.  He emphasized, "We're so glad if we                                                              
can effect collection on behalf of the wage claimant.  Even though                                                              
we may have an award for attorney fees, we're willing to give that                                                              
up just to get the wages paid to the worker."  Mr. Carr said                                                                    
although he appreciates the intent, he doesn't believe the award of                                                             
attorney fees would really trickle down to the department's budget.                                                             
Number 1230                                                                                                                     
REPRESENTATIVE MURKOWSKI commented that she doesn't believe this                                                                
amendment gets them where they need to go on this.  She recognized                                                              
that if an individual does not receive his/her paycheck, the last                                                               
thing that individual wants to do is go from attorney's office to                                                               
attorney's office in order to find someone who will take this case                                                              
on a contingency fee basis.  She echoed earlier comments that just                                                              
because an individual can receive a judgment does not mean he/she                                                               
will be able to collect on it.  Therefore, to find an attorney to                                                               
take on a $15,000 claim is not that realistic.  She suggested that                                                              
the easiest thing for these employees would be to assign their wage                                                             
claims to the Division of Wage & Hour, which moves the individual                                                               
through the process quickly.  Therefore, whatever can be done to                                                                
expedite the process for that division will benefit the employee                                                                
far more than allowing attorneys to recover 100 percent of their                                                                
REPRESENTATIVE ROKEBERG spoke in opposition to Representative                                                                   
Croft's amendment because it opens a statutory chapter that                                                                     
requires review in total.  For example, the effects of the                                                                      
liquidated damages and other statutory penalties that exist have                                                                
not even been discussed today.  Representative Croft's amendment                                                                
adds legal fees on top of potential liquidated damages and                                                                      
statutory penalties.  Therefore, he doesn't think it is appropriate                                                             
to do this without taking the entire scope of enforcement                                                                       
procedures into account. He said SB 193 is a relatively                                                                         
straightforward bill that intends to make an immediate "fix" to an                                                              
expanding jurisdiction.  Representative Rokeberg suggested that                                                                 
perhaps this needs to be reviewed, but under separate legislation.                                                              
Number 1408                                                                                                                     
REPRESENTATIVE CROFT responded that he thinks it [Amendment 1] does                                                             
dovetail with this legislation.  He said, "I think it would give                                                                
[Mr. Carr] the power to say, ... 'We'd like you to settle, we have                                                              
jurisdiction now for claims up to $20,000, and if you don't, you                                                                
take their claim to an attorney for full fees.'"  Representative                                                                
Croft said he believes the two approaches allow him to settle more                                                              
claims quicker by having this, but he does not suggest that DOLWD                                                               
should have this power.  In general, he doesn't believe the                                                                     
government should have this power; only the person affected by not                                                              
having his/her wages paid [should have it].                                                                                     
REPRESENTATIVE CROFT told members, "I'm not doing any change to the                                                             
liquidated damages that exist or don't exist in the various                                                                     
different wage and hour sections."  He explained that he is worried                                                             
that without some amendment which either increases some of the                                                                  
money to the department to pursue these or provides some other                                                                  
option for private individuals to pursue these, the bill doesn't                                                                
cure the problem at which it was directed.  He reviewed the two                                                                 
approaches, which are to either give [the division] more money to                                                               
hire more staff for this or to allow the individual to be empowered                                                             
to do this.  Of those two approaches, he had chosen the latter.                                                                 
CHAIRMAN KOTT asked if there was further discussion on Amendment 1;                                                             
none was offered.                                                                                                               
Upon a roll call vote, Representatives Green, Croft, Kerttula and                                                               
Kott voted in favor of the adoption of Amendment 1.                                                                             
Representatives Rokeberg, James and Murkowski voted against it.                                                                 
Therefore, conceptual Amendment 1 was adopted by a vote of 4-3.                                                                 
REPRESENTATIVE ROKEBERG requested hearing from the bill sponsor's                                                               
representative before proceeding further.                                                                                       
Number 1637                                                                                                                     
MR. KNAUSS said he could not speak on behalf of the sponsor.                                                                    
However, the department doesn't have a problem with the amendment                                                               
[Amendment 1] just adopted.                                                                                                     
REPRESENTATIVE ROKEBERG remarked that he is not sure how this all                                                               
fits together.                                                                                                                  
Number 1721                                                                                                                     
REPRESENTATIVE MURKOWSKI returned to Representative Rokeberg's                                                                  
question regarding how the attorney fees would fit with the penalty                                                             
provisions, the liquidated damages provisions, and the mandatory                                                                
and discretionary penalty provisions in Sections 4 and 5 of the                                                                 
bill.  She asked whether Amendment 1 would affect [those                                                                        
provisions] in any way.                                                                                                         
MR. CARR answered that in regard to the cases brought forth by the                                                              
department, the amendment would not affect them.  He explained that                                                             
the first amendment in Section 1 establishes the dollar value of                                                                
$20,000 exclusive of costs, interest and attorney fees.  Therefore,                                                             
any award would not impact the amount that the department would be                                                              
able to pursue.  With regard to private sector cases, he was not                                                                
prepared to address that at this time.                                                                                          
Number 1789                                                                                                                     
REPRESENTATIVE CROFT pointed out that Amendment 1 was a conceptual                                                              
amendment.  He noted that he did not have any interest in delaying                                                              
this bill because it is a good bill, with or without this                                                                       
amendment, although he believes it better with it.  However, even                                                               
if the legislature is on an accelerated schedule for sine die                                                                   
adjournment, it would not hurt to see the conceptual amendment, in                                                              
its actual form, and to review it and pass it out at the next                                                                   
REPRESENTATIVE JAMES also expressed the desire to hear from the                                                                 
bill sponsor because she is not sure how this all fits together                                                                 
either.  Therefore, she agreed with Representative Croft that the                                                               
draft, with the conceptual amendment, should be reviewed and                                                                    
REPRESENTATIVE ROKEBERG concurred.  He said he would also like to                                                               
see the legislative history in regard to why there was a                                                                        
differential and why this was done.  He agreed that the committee                                                               
would be remiss if it were to [pass this bill out] like this.  He                                                               
remarked that he may even vote against reporting it from committee.                                                             
REPRESENTATIVE JAMES related her belief that if there is a minimum                                                              
wage case and an overtime case, there is neglect and even fraud on                                                              
the part of the employer.  If it is a clear case of the [employer]                                                              
not paying the wages, it should be easier to resolve, which is what                                                             
is addressed in this bill.  However, the example [that generated                                                                
the legislation] was not such a situation.                                                                                      
CHAIRMAN KOTT announced that SB 193 would be held over, and the                                                                 
bill, with the conceptual amendment [Amendment 1] in writing, would                                                             
be back before the committee at the next meeting.  He asked members                                                             
to pose any questions they had to the department before the next                                                                
meeting.  [SB 193 was held.]                                                                                                    
HB 182 - CHARITABLE GAMING & GAMING ON FERRIES                                                                                  
Number 2080                                                                                                                     
CHAIRMAN KOTT announced the formation of a subcommittee to address                                                              
HOUSE BILL NO. 182, "An Act relating to charitable gaming and to                                                                
gaming on state ferries; and providing for an effective date."  He                                                              
appointed Representatives Croft, Murkowski, Green, James, Kerttula,                                                             
Rokeberg and himself to serve as subcommittee members.  Noting that                                                             
the subcommittee could not take action on the bill, he informed                                                                 
members of a meeting on Friday, April 7.  He indicated HB 182 had                                                               
been omitted inadvertently from the schedule, and a number of                                                                   
people were in town to testify.  [End of discussion of HB 182.]                                                                 
SB 123 - ATTY FEES:APPORTIONMT/PUBLIC INT.LITIGANT                                                                              
Number 2146                                                                                                                     
CHAIRMAN KOTT announced that the final item of business would be CS                                                             
FOR SENATE BILL NO. 123(FIN), "An Act relating to public interest                                                               
litigants and to attorney fees; and amending Rule 82, Alaska Rules                                                              
of Civil Procedure."  He informed listeners that it was not his                                                                 
intent to move the bill that day, but several testifiers had been                                                               
waiting on teleconference to testify.  [Before the committee was                                                                
CSSB 123(FIN).]                                                                                                                 
Number 2166                                                                                                                     
DARWIN PETERSON, Staff to Senator Torgerson and the Senate Finance                                                              
Committee, Alaska State Legislature, offered an abbreviated                                                                     
overview of the bill on behalf of the Senate Finance Committee,                                                                 
sponsor of the bill.  He informed members that SB 123 would                                                                     
recognized public interest litigants by codifying them in Rule 82                                                               
[of the Alaska Rules of Civil Procedure].  It also would require                                                                
the court to "apportion enhanced attorney's fees by prevailing                                                                  
CHAIRMAN KOTT asked whether there were questions, then opened                                                                   
public testimony.                                                                                                               
Number 2275                                                                                                                     
JOSEPH CIZEK testified via teleconference from Anchorage.  He                                                                   
informed members that he and his wife are being sued by two                                                                     
individuals, a husband and wife, who claim to be public interest                                                                
litigants, having formed a nonprofit organization in which the                                                                  
husband is president and the wife is vice president.  The Cizeks                                                                
were threatened with this suit a year and a half ago, for more than                                                             
$500,000 in damages plus attorney fees.  The case now is being                                                                  
appealed.  However, the attorney fees alone have bankrupted his                                                                 
small business as a general contractor.  He and his wife are out at                                                             
least $100,000 in attorney fees, and the plaintiffs are seeking                                                                 
approximately $150,000 in attorney fees.                                                                                        
MR. CIZEK said he and his wife are forced to defend their position,                                                             
based upon what the city has said on a grandfather rights issue                                                                 
relating to [a nonconforming] airstrip at the end of the Eagle                                                                  
River Valley.  During this legal battle, they were informed from                                                                
the start that there would be no hope of getting any attorney fees                                                              
back, even if they prevailed, because of the [plaintiffs'] claim to                                                             
be a public interest litigant group.  "Something is not right                                                                   
here," he emphasized, noting that the college fund for his daughter                                                             
is gone.                                                                                                                        
TAPE 00-49, SIDE A                                                                                                              
REPRESENTATIVE MURKOWSKI asked whether the court has determined                                                                 
that the plaintiffs in that case are, in fact, public interest                                                                  
MR. CIZEK said no, that it is before the superior court at this                                                                 
time, and Judge Shortell has yet to make that ruling.                                                                           
REPRESENTATIVE MURKOWSKI noted that there are some pretty specific                                                              
standards that must be met in order to be declared a public                                                                     
interest litigant, and, from Mr. Cizek's brief description, it                                                                  
sounds as if the plaintiffs aren't true public interest litigants,                                                              
although she doesn't have the facts.                                                                                            
MR. CIZEK said it appears that they will be granted that status.                                                                
CHAIRMAN KOTT noted that Mr. Cizek is a constituent of his, and he                                                              
has been directly involved in trying to settle that issue.                                                                      
Number 0226                                                                                                                     
WEV SHEA, Attorney at Law, testified via teleconference from                                                                    
Anchorage.  He offered some personal background, noting that he has                                                             
been involved in the legal profession since 1966 and has practiced                                                              
law in Alaska since 1977, doing civil litigation almost solely.  He                                                             
also noted that he has done criminal prosecution in both Hawaii and                                                             
Alaska, and was U.S. Attorney for the District of Alaska.  He                                                                   
cautioned about not getting too tied up in emotion on this.  There                                                              
are very strict criteria for public interest litigant status, he                                                                
told members, citing as an example an Alaska Supreme Court case                                                                 
involving Tim Cook (ph) that he himself had handled; in that case,                                                              
Mr. Cook (ph) had been fired as a commissioner on the Alaska Public                                                             
Utilities Commission (APUC) but eventually got his job back.                                                                    
Public interest litigant status was not granted.                                                                                
MR. SHEA noted that his position in that case was that because Mr.                                                              
Cook (ph) was a public servant, he shouldn't have to pay all of his                                                             
attorney fees, and should have been granted 100 percent of his                                                                  
attorney fees.  That issue was ruled upon, on remand, by Judge                                                                  
Michalski, who accurately found, under the law - although Mr. Shea                                                              
disagrees with  it - that Tim Cook (ph) had a monetary interest in                                                              
being on the commission because he was paid and therefore wasn't                                                                
entitled to public interest litigant status.                                                                                    
MR. SHEA said he is sure there is good reason to bring this                                                                     
legislation.  However, he would address the problem with not having                                                             
public interest litigation in voting contests and the right to                                                                  
vote; that was primarily what he himself was concerned with when he                                                             
brought the first Dansereau case, which got an [Alaska] Supreme                                                                 
Court decision in 1995, and then the second Dansereau case, for                                                                 
attorney fees, on which he got an [Alaska] Supreme Court decision                                                               
in 1998.  Mr. Shea pointed out that in election contest cases, the                                                              
litigants not only have to show that there is a violation of the                                                                
law with regard to the election itself but also must show that                                                                  
there was a violation of the law which could have changed the                                                                   
results of the election.  Suggesting Representative Green had                                                                   
spoken out on this, Mr. Shea mentioned breaking this out on various                                                             
causes of action, then said he would point out the fallacy of that                                                              
MR. SHEA reported that in the 1994 election, Governor Knowles won                                                               
by 536 votes; if 278 votes had gone the other way, or if it could                                                               
have been shown that those voters could have been influenced to                                                                 
vote the other day, the election would have been a tie.  With more                                                              
votes than that, Jim Campbell would have won.  Ten gallons of                                                                   
gasoline were given to everyone in the North Slope Borough who                                                                  
voted in that district, about 1,500 people.  However, the farthest                                                              
anybody went to vote in that borough was 12 miles, which he said                                                                
was ridiculous, being paid to vote.  However, the Alaska Supreme                                                                
Court had ruled that there was not a valid state cause of action.                                                               
Mr. Shea noted that he had alleged that [cause of action] because                                                               
of having to choose between bringing the case in federal or state                                                               
court, and he had believed it was a federal violation because                                                                   
[Congressman] Don Young was in the election.  Mr. Shea said it is                                                               
in the statute that if there is a state senator or representative                                                               
running, then it is a federal election.  However, the supreme court                                                             
didn't look to that.  So that is one cause of action that is "out"                                                              
but which affected at least 1,500 votes.                                                                                        
Number 0643                                                                                                                     
MR. SHEA continued.  He noted that the supreme court did say that                                                               
it was a violation of state law to mail a postcard to 7,000 to                                                                  
8,000 voters that said "Vote for Tony Knowles - you have a chance                                                               
to win $1,000"; that was done by Doyon Drilling (ph), Tanana Chiefs                                                             
Conference and Fairbanks Native Association, and Mr. Shea said he                                                               
had prevailed on that case.  He indicated there was a third case,                                                               
for irregularities in the North Slope voting process and not                                                                    
keeping the voting polls open.                                                                                                  
MR. SHEA expressed concern about the way this bill is written, and                                                              
the way it affects voters' rights.  He stated:                                                                                  
     I'll tell you, if I didn't bring that litigation,                                                                          
     [Representative] Con Bunde never would have brought his                                                                    
     bill, and you never would have passed the bill ... that                                                                    
     Tony Knowles signed on June 22, 1996, changing the law.                                                                    
     And the problem that I had was that Jim Campbell was                                                                       
     scared to death to bring a litigation.  He was really                                                                      
     scared when I told him I'd already written a three-page                                                                    
     letter to the FBI [Federal Bureau of Investigation] with                                                                   
     regard to the federal violation.                                                                                           
     Well, the U.S. Attorney wouldn't touch it because he's                                                                     
     [President] Bill Clinton's appointee.  And in civil                                                                        
     rights and voting rights violations, the FBI will not                                                                      
     investigate the violations and pursue it unless the U.S.                                                                   
     Attorney, prior to the investigation, said that he will                                                                    
     prosecute the litigation.  [Representative] Bunde refused                                                                  
     to do that.  Your attorney general, Bruce Botelho, wasn't                                                                  
     going to take any action, and he didn't take any action;                                                                   
     he fought all the way on two cases that I took to the                                                                      
     supreme court.                                                                                                             
     And what is the problem with the way the bill is written,                                                                  
     as it affects voting rights, is that because Jim Campbell                                                                  
     was scared to take the case because it ... was so                                                                          
     controversial and somewhat confrontational, and the                                                                        
     legislature sure wasn't jumping in and taking a stand at                                                                   
     that time - none of you were, those of you that were                                                                       
     there - was that I had to get ten citizens to step                                                                         
     forward to be the plaintiffs.  ...                                                                                         
     Under the statute, if the candidate won't do it - which                                                                    
     Campbell wouldn't, naturally, because the wrongdoers had                                                                   
     to do with the North Slope Borough, Tanana Chiefs,                                                                         
     Fairbanks Native Association and Doyon, all of which he's                                                                  
     done business or was continuing to do business with, in                                                                    
     various corporations and other businesses he had - could                                                                   
     I ever have asked, or would ten people ever have agreed,                                                                   
     to take on litigation of that magnitude, if they knew                                                                      
     they had a chance of being faced with attorney fees and                                                                    
     costs against them?  This was not some fly-by-night                                                                        
     lawsuit that went up to the supreme court twice.  This                                                                     
     was a lawsuit that went up twice and we prevailed both                                                                     
     times, and the public acted as the attorney general for                                                                    
     the State of Alaska because the attorney general for the                                                                   
     State of Alaska refused to act for the people. ...                                                                         
     Everybody seems to jump on the fact that the second                                                                        
     Dansereau case delineates the attorney fees and somehow                                                                    
     indicates - and the Daily News indicated - that Wev Shea                                                                   
     received $250,000, approximately, in attorney's fee.  Let                                                                  
     me break that down for you. ... I advanced out-of-pocket                                                                   
     costs of approximately $25,000.  I advanced fees in that                                                                   
     case of approximately $225,000, which was 1,500 hours,                                                                     
     approximately, at $150 an hour.  The amount of time, that                                                                  
     was me and one attorney that assisted me for about a                                                                       
     hundred hours.                                                                                                             
     The amount of time expended by the attorney general to                                                                     
     fight that case:  he had 14 attorneys that billed on the                                                                   
     case, 4 or 5 paralegals, and they billed well in excess                                                                    
     of what I bill, ... the number of hours.  I find that                                                                      
     very peculiar since in both cases I had the burden [and]                                                                   
     ... had to carry both cases, since we lost both cases at                                                                   
     the trial court level.                                                                                                     
     I can't really tell you how to approach this, other than                                                                   
     I think you're doing the state a real disservice if you                                                                    
     change this law with regard to voting and public interest                                                                  
     litigation, from that standpoint, when it comes to                                                                         
     election contests.  I really don't know who you're going                                                                   
     to get to bring litigation that is this controversial,                                                                     
     like these two Dansereau cases or the Tim Cook (ph) case,                                                                  
     because I know when I called down, ... when Tim Cook (ph)                                                                  
     was terminated, and talked and approached a number of                                                                      
     legislators and a number of people in the leadership,                                                                      
     they themselves were not going to challenge Governor                                                                       
     Knowles' position.  And that's why I did it.                                                                               
     And if any of you think that Wev Shea took these cases to                                                                  
     make money, I think you're sadly mistaken.  I received,                                                                    
     from the State of Alaska, after those two appeals, ...                                                                     
     about $101,000, and I received it four years after I took                                                                  
     the case.  And I took the case, ladies and gentlemen,                                                                      
     solely because I felt that the rights of the citizens of                                                                   
     the State of Alaska were grossly being abuse.  And I'll                                                                    
     tell you, if I didn't do it, nobody was going to do it.                                                                    
     I guess you can ... do what you want with the public                                                                       
     interest litigation, and there's no question that there's                                                                  
     problems.  But I'd be very, very leery of it in the                                                                        
     voting rights area, because what you're doing is, in this                                                                  
     state, without an [elected] attorney general, you've got                                                                   
     a clone for Tony Knowles sitting in the AG's [attorney                                                                     
     general's] office.                                                                                                         
Number 1117                                                                                                                     
REPRESENTATIVE ROKEBERG stated his understanding that Mr. Shea had                                                              
prevailed in one portion of the case.                                                                                           
MR. SHEA affirmed that.                                                                                                         
REPRESENTATIVE ROKEBERG asked Mr. Shea what the end result of the                                                               
case was.                                                                                                                       
MR. SHEA responded that he had advanced so much money, and it was                                                               
a year and a half after they had prevailed.  Although there should                                                              
have been a new election, he couldn't go in, right off the bat, and                                                             
get an injunction because it was cost-prohibitive.  These election                                                              
contest suits take 100 percent of [an attorney's] time, all of the                                                              
time.  Basically, before the statute was changed, the supreme court                                                             
came out with the first Dansereau decision, "and we prevailed."                                                                 
However, this decision came out in September of 1996, so Governor                                                               
Knowles had been in office two years.  Although the court basically                                                             
said that approximately 7,000 to 8,000 votes were affected, at that                                                             
stage Mr. Shea said he couldn't open it up and press forward for a                                                              
new election.                                                                                                                   
MR. SHEA commented, "Try advancing $225,000."  Noting that new                                                                  
associates at law firms may be expected to bill 1,600 hours a year,                                                             
he said he had essentially given away time for a year.  He proposed                                                             
the need to be sensitive and for somebody to be able to step in, in                                                             
this state, the way the law is now, when the attorney general isn't                                                             
willing to do so, especially regarding voting rights or when an                                                                 
issue is very controversial, because a whole section of legislators                                                             
will have various conflicts.  Mr. Shea added that when he had taken                                                             
that litigation, he didn't know he would be awarded attorney fees                                                               
because he had thought it was under Civil Rule 82; he was just                                                                  
thinking about the wrong that had been done, and he had seen clear                                                              
violations, because of his familiarity with it, of state and                                                                    
federal election law.  Because neither the federal nor state                                                                    
government was acting on it, he had stepped in.                                                                                 
MR. SHEA said he wouldn't take a similar case now unless he knew he                                                             
would be paid 100 percent of the attorney fees.  Furthermore, in                                                                
election contest litigation where somebody won't step forward, how                                                              
could anyone ask ten voters to step forward and do it, when those                                                               
people could be subject to actual costs and attorney fees?  He said                                                             
he couldn't address the situation in Eagle River [testified about                                                               
earlier], but setting up a nonprofit organization has nothing to do                                                             
with being a public interest litigant.                                                                                          
Number 1393                                                                                                                     
ROBIN SMITH testified via teleconference from Anchorage as follows:                                                             
     A fundamental tenet ... of the American democratic system                                                                  
     is that the executive and legislative branches of                                                                          
     government must act lawfully and constitutionally,                                                                         
     subject to review and restraint by an independent                                                                          
     judiciary.  This bill, I believe, would support                                                                            
     government [tyranny] by stripping the common citizens'                                                                     
     right to challenge the state.                                                                                              
     We need to be realists.  It takes a lot of money to bring                                                                  
     a suit against the state.  And this bill would limit all                                                                   
     but the rich ... in coming forward ... to sue the state.                                                                   
     A citizen would not only have to incur 80 percent of the                                                                   
     cost if he or she won but also the state cost if they                                                                      
     lost. ... It would be as if the legislators were asked to                                                                  
     defend bills that the citizenry challenged and said were                                                                   
     unconstitutional.  And I have to ask how many of you                                                                       
     would be willing to put up your own money and say, "Yes,                                                                   
     ... we have to countersue, we have to respond to this                                                                      
     suit that's brought by the citizens."  I fear that few of                                                                  
     you would be willing to put your own money forward on                                                                      
     So I ask you ... to please stop this bill now.  It really                                                                  
     undermines the right of the individual citizen to                                                                          
     challenge the state, and I think that's one of the                                                                         
     beauties of ... our American system.                                                                                       
Number 1488                                                                                                                     
DALE BONDURANT testified via teleconference from Kenai in                                                                       
opposition to SB 123, suggesting he has a well-known history as a                                                               
public interest litigant.  He spoke in support of the public                                                                    
interest litigant process, which has a commendable history of                                                                   
promoting the ability of the smallest common public interest to be                                                              
heard as well as those special personal interests of the more rich                                                              
and powerful.  This process has allowed the public to participate                                                               
and actually make a valuable difference in the protection of the                                                                
benefits of the law for the public, he told members.  In a free                                                                 
constitutional democracy, one may not agree with another's position                                                             
and yet agree with others' rights to hold and expound upon their                                                                
positions; the opportunity to be heard on the merit of that                                                                     
position is what makes the freedom so valued.                                                                                   
MR. BONDURANT said that those who support SB 123 would handcuff the                                                             
operation of the public interest litigant process when more                                                                     
powerful interests take advantage of and knowingly abuse the                                                                    
process.  However, the voices of the latter will not be muted                                                                   
because of having the financial resources to continue their special                                                             
interests.  Eliminated will be the small players who have a                                                                     
legitimate, common public concern.  Because there no longer will be                                                             
an organized, responsible and affordable avenue to pursue the                                                                   
public interest in these cases, they will fail.  As is popularly                                                                
stated, "Don't throw the baby out with the wash water."                                                                         
MR. BONDURANT said some believe this bill will stop abuse of the                                                                
process.  However, it will not.  More powerful parties, even if                                                                 
they lose in adjudication of their purpose, have a large cadre of                                                               
supporting advocates that can financially remit up to $100,000 in                                                               
tax-exempt contributions.  But SB 123 will destroy the general                                                                  
public's ability to participate in a process on the merits of the                                                               
public interest issue.  Mr. Bondurant urged members to please                                                                   
defend the right of the general public to be heard above the clamor                                                             
of the politically powerful.  He concluded:                                                                                     
     We have been very active in the public interest issues                                                                     
     such as access to Alaska's public waters, fish, wildlife                                                                   
     and equal public access to these common-property                                                                           
     resources.  And we're now involved financially and                                                                         
     dedicated to try to win back the state's sovereignty over                                                                  
     these navigable waters and ... the public resources.  So                                                                   
     ... don't cut out "us."  Our donations are $10 or less,                                                                    
     and we're fighting this battle for the entire public.                                                                      
     So, I think this bill is very bad, and I ask you to vote                                                                   
     "no" on it.  Thank you very much.                                                                                          
Number 1656                                                                                                                     
REPRESENTATIVE CROFT asked Mr. Bondurant whether he was one of the                                                              
appellees on the McDowell lawsuit.                                                                                              
MR. BONDURANT specified that he is one of the named appellees on                                                                
that lawsuit.                                                                                                                   
REPRESENTATIVE CROFT said he understands that Sam McDowell got                                                                  
about $100,000, perhaps a little more, to pay for his attorney fees                                                             
in that.  Furthermore, he also understands that Mr. McDowell                                                                    
doesn't think he could have done that suit without the public                                                                   
interest litigant status.  He asked whether that is Mr. Bondurant's                                                             
opinion too.                                                                                                                    
MR. BONDURANT replied:                                                                                                          
     Very much so.  And we sure didn't get back all of our                                                                      
     fees, and, like the one gentleman said, we didn't get                                                                      
     ours back for quite a long time.  But maybe a more                                                                         
     pertinent case right now is one that I was a named                                                                         
     plaintiff in that, and that was the Alaska Public                                                                          
     Easement Defense Fund, back in 1977, when we fought so                                                                     
     the public will have reasonable access to all public                                                                       
     waters in the state of Alaska.  And we're very proud of                                                                    
     that thing, and it's, ... again, for the public's use.                                                                     
REPRESENTATIVE CROFT asked Mr. Bondurant whether he was a public                                                                
interest litigant in that case.                                                                                                 
MR. BONDURANT answered:                                                                                                         
     Yes, sir, there were three of us, and I was one of the                                                                     
     named litigants in that one.  And that was in 1977.  And                                                                   
     we also fought in the Gulkana (ph) case; we weren't a                                                                      
     named litigant, but me and Sam McDowell were the only                                                                      
     people there representing the state.                                                                                       
Number 1729                                                                                                                     
CHAIRMAN KOTT asked whether anyone else wished to testify, then                                                                 
closed public testimony.  He announced his intention of sending the                                                             
bill to a subcommittee consisting of Representatives Murkowski,                                                                 
Croft and Kerttula, with Representative Murkowski chairing.  [SB
123 was held over.]                                                                                                             
Number 1778                                                                                                                     
CHAIRMAN KOTT called an at-ease from 3:23 p.m. to 3:24 p.m.  He                                                                 
called the meeting back to order and announced that the House                                                                   
Judiciary Standing Committee was recessed to the call of the chair.                                                             
He told members that the meeting would reconvene at 2 p.m. the                                                                  
following day in order to take up the subcommittee report on HB 211                                                             
and any other pending legislation.                                                                                              

Document Name Date/Time Subjects