Legislature(2005 - 2006)CAPITOL 120
05/06/2005 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB135 | |
| SB130 | |
| SB132 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| = | SB 135 | ||
| = | SB 132 | ||
| = | SB 130 | ||
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
May 6, 2005
1:44 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson
Representative John Coghill
Representative Nancy Dahlstrom
Representative Pete Kott
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 135(JUD)(efd am)
"An Act relating to the crimes of assault and custodial
interference; and providing for an effective date."
- MOVED CSSB 135(JUD)(efd am) OUT OF COMMITTEE
CS FOR SENATE BILL NO. 130(FIN) am
"An Act relating to a special deposit for workers' compensation
and employers' liability insurers; relating to assigned risk
pools; relating to workers' compensation insurers; stating the
intent of the legislature, and setting out limitations,
concerning the interpretation, construction, and implementation
of workers' compensation laws; relating to the Alaska Workers'
Compensation Board; assigning certain Alaska Workers'
Compensation Board functions to the division of workers'
compensation in the Department of Labor and Workforce
Development and to that department, and authorizing the board to
delegate administrative and enforcement duties to the division;
providing for workers' compensation hearing officers in workers'
compensation proceedings; establishing a Workers' Compensation
Appeals Commission; relating to workers' compensation medical
benefits and to charges for and payment of fees for the medical
benefits; relating to agreements that discharge workers'
compensation liability; relating to workers' compensation
awards; relating to reemployment benefits and job dislocation
benefits; relating to coordination of workers' compensation and
certain disability benefits; relating to division of workers'
compensation records; relating to release of treatment records;
relating to an employer's failure to insure and keep insured or
provide security; providing for appeals from compensation
orders; relating to workers' compensation proceedings; providing
for supreme court jurisdiction of appeals from the Workers'
Compensation Appeals Commission; providing for a maximum amount
for the cost-of-living adjustment for workers' compensation
benefits; relating to attorney fees with respect to workers'
compensation; providing for the department to enter into
contracts with nonprofit organizations to provide information
services and legal representation to injured employees;
providing for administrative penalties for employers uninsured
or without adequate security for workers' compensation; relating
to fraudulent acts or false or misleading statements in workers'
compensation and penalties for the acts or statements; providing
for members of a limited liability company to be included as an
employee for purposes of workers' compensation; establishing a
workers' compensation benefits guaranty fund; making conforming
amendments; providing for a study and report by the medical
services review committee; establishing the Task Force on
Workers' Compensation; and providing for an effective date."
- MOVED HCS CSSB 130(JUD) OUT OF COMMITTEE
SENATE BILL NO. 132(efd fld)
"An Act relating to complaints filed with, investigations,
hearings, and orders of, and the interest rate on awards of the
State Commission for Human Rights; and making conforming
amendments."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 135
SHORT TITLE: ASSAULT & CUSTODIAL INTERFERENCE
SPONSOR(S): SENATOR(S) DYSON
03/08/05 (S) READ THE FIRST TIME - REFERRALS
03/08/05 (S) JUD, FIN
04/06/05 (S) JUD AT 8:30 AM BUTROVICH 205
04/06/05 (S) Scheduled But Not Heard
04/14/05 (S) JUD AT 8:00 AM BUTROVICH 205
04/14/05 (S) Moved CSSB 135(JUD) Out of Committee
04/14/05 (S) MINUTE(JUD)
04/14/05 (S) JUD RPT CS 1DP 3NR 1AM SAME TITLE
04/14/05 (S) DP: SEEKINS
04/14/05 (S) NR: FRENCH, THERRIAULT, HUGGINS
04/14/05 (S) AM: GUESS
04/30/05 (S) FIN AT 9:00 AM SENATE FINANCE 532
04/30/05 (S) Scheduled But Not Heard
05/01/05 (H) FIN AT 1:00 PM HOUSE FINANCE 519
05/01/05 (S) Moved CSSB 135(JUD) Out of Committee
05/01/05 (S) MINUTE(FIN)
05/01/05 (S) FIN RPT CS(JUD) 3DP 2NR
05/01/05 (S) DP: WILKEN, GREEN, DYSON
05/01/05 (S) NR: OLSON, STEDMAN
05/03/05 (S) TRANSMITTED TO (H)
05/03/05 (S) VERSION: CSSB 135(JUD)(EFD AM)
05/04/05 (H) READ THE FIRST TIME - REFERRALS
05/04/05 (H) JUD, FIN
05/05/05 (H) JUD AT 1:00 PM CAPITOL 120
05/05/05 (H) Scheduled But Not Heard
05/06/05 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 130
SHORT TITLE: WORKERS' COMPENSATION/ INSURANCE
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
03/03/05 (S) READ THE FIRST TIME - REFERRALS
03/03/05 (S) L&C, FIN
03/08/05 (S) L&C AT 1:30 PM BELTZ 211
03/08/05 (S) Heard & Held
03/08/05 (S) MINUTE(L&C)
03/10/05 (S) L&C AT 1:30 PM BELTZ 211
03/10/05 (S) Heard & Held
03/10/05 (S) MINUTE(L&C)
03/15/05 (S) L&C AT 1:30 PM BELTZ 211
03/15/05 (S) Heard & Held
03/15/05 (S) MINUTE(L&C)
03/17/05 (S) L&C AT 1:30 PM BELTZ 211
03/17/05 (S) Heard & Held
03/17/05 (S) MINUTE(L&C)
03/22/05 (S) L&C AT 1:30 PM BELTZ 211
03/22/05 (S) Heard & Held
03/22/05 (S) MINUTE(L&C)
03/24/05 (S) L&C AT 2:00 PM BELTZ 211
03/24/05 (S) Heard & Held
03/24/05 (S) MINUTE(L&C)
03/29/05 (S) L&C AT 1:30 PM BELTZ 211
03/29/05 (S) -- Meeting Canceled --
03/31/05 (S) L&C AT 1:30 PM BELTZ 211
03/31/05 (S) Moved CSSB 130(L&C) Out of Committee
03/31/05 (S) MINUTE(L&C)
04/01/05 (S) L&C RPT CS 2DP 1NR 2AM NEW TITLE
04/01/05 (S) DP: BUNDE, STEVENS B
04/01/05 (S) NR: SEEKINS
04/01/05 (S) AM: DAVIS, ELLIS
04/01/05 (S) JUD REFERRAL ADDED AFTER L&C
04/05/05 (S) JUD AT 8:30 AM BUTROVICH 205
04/05/05 (S) Heard & Held
04/05/05 (S) MINUTE(JUD)
04/06/05 (S) JUD AT 8:30 AM BUTROVICH 205
04/06/05 (S) Heard & Held
04/06/05 (S) MINUTE(JUD)
04/07/05 (S) JUD AT 8:30 AM BUTROVICH 205
04/07/05 (S) Heard & Held
04/07/05 (S) MINUTE(JUD)
04/08/05 (H) JUD AT 8:00 AM CAPITOL 120
04/08/05 (S) Moved CSSB 130(JUD) Out of Committee
04/08/05 (S) MINUTE(JUD)
04/08/05 (S) JUD RPT CS FORTHCOMING 1DP 4NR
04/08/05 (S) DP: SEEKINS
04/08/05 (S) NR: FRENCH, GUESS, THERRIAULT, HUGGINS
04/08/05 (S) FIN AT 9:00 AM SENATE FINANCE 532
04/08/05 (S) <Pending Referral>
04/11/05 (S) FIN AT 9:00 AM SENATE FINANCE 532
04/11/05 (S) Moved CSSB 130(FIN) Out of Committee
04/11/05 (S) MINUTE(FIN)
04/11/05 (S) FIN RPT CS 5DP 1NR 1AM NEW TITLE
04/11/05 (S) DP: GREEN, WILKEN, BUNDE, DYSON,
STEDMAN
04/11/05 (S) NR: HOFFMAN
04/11/05 (S) AM: OLSON
04/11/05 (S) JUD CS RECEIVED NEW TITLE
04/14/05 (S) TRANSMITTED TO (H)
04/14/05 (S) VERSION: CSSB 130(FIN) AM
04/15/05 (H) READ THE FIRST TIME - REFERRALS
04/15/05 (H) L&C, JUD, FIN
04/15/05 (S) FIN AT 9:00 AM SENATE FINANCE 532
04/15/05 (S) Moved Out of Committee 4/11
04/15/05 (S) MINUTE(FIN)
05/04/05 (H) L&C AT 2:00 PM CAPITOL 17
05/04/05 (H) Moved HCS CSSB 130(L&C) Out of
Committee
05/04/05 (H) MINUTE(L&C)
05/04/05 (H) L&C RPT HCS(L&C) 2DP 3NR 2AM
(FORTHCOMING)
05/04/05 (H) DP: KOTT, LEDOUX;
05/04/05 (H) NR: CRAWFORD, LYNN, GUTTENBERG;
05/04/05 (H) AM: ROKEBERG, ANDERSON
05/05/05 (H) HCS(L&C) NT RECEIVED
05/05/05 (H) JUD AT 1:00 PM CAPITOL 120
05/05/05 (H) Failed To Move Out Of Committee
05/05/05 (H) MINUTE(JUD)
05/05/05 (H) FIN AT 1:30 PM HOUSE FINANCE 519
05/05/05 (H) <Pending Referral>
05/06/05 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 132
SHORT TITLE: HUMAN RIGHTS COMMISSION
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
03/04/05 (S) READ THE FIRST TIME - REFERRALS
03/04/05 (S) STA, JUD
03/17/05 (S) STA AT 3:30 PM BUTROVICH 205
03/17/05 (S) Heard & Held
03/17/05 (S) MINUTE(STA)
03/29/05 (S) STA AT 3:30 PM BELTZ 211
03/29/05 (S) Moved SB 132 Out of Committee
03/29/05 (S) MINUTE(STA)
03/30/05 (S) STA RPT 3NR 1AM
03/30/05 (S) NR: THERRIAULT, WAGONER, HUGGINS
03/30/05 (S) AM: DAVIS
04/07/05 (S) JUD AT 8:30 AM BUTROVICH 205
04/07/05 (S) Scheduled But Not Heard
04/08/05 (H) JUD AT 8:00 AM CAPITOL 120
04/08/05 (S) Scheduled But Not Heard
04/14/05 (S) JUD AT 8:00 AM BUTROVICH 205
04/14/05 (S) Moved SB 132 Out of Committee
04/14/05 (S) MINUTE(JUD)
04/14/05 (S) JUD RPT 1DP 2NR 2AM
04/14/05 (S) DP: SEEKINS
04/14/05 (S) NR: THERRIAULT, HUGGINS
04/14/05 (S) AM: FRENCH, GUESS
04/21/05 (S) TRANSMITTED TO (H)
04/21/05 (S) VERSION: SB 132(EFD FLD)
04/22/05 (H) READ THE FIRST TIME - REFERRALS
04/22/05 (H) STA, JUD
05/03/05 (H) STA AT 8:00 AM CAPITOL 106
05/03/05 (H) Heard & Held
05/03/05 (H) MINUTE(STA)
05/05/05 (H) STA AT 8:00 AM CAPITOL 106
05/05/05 (H) Moved HCS SB 132(STA) Out of Committee
05/05/05 (H) MINUTE(STA)
05/05/05 (H) STA RPT HCS(STA) 4DP 1AM
05/05/05 (H) DP: LYNN, GATTO, ELKINS, SEATON;
05/05/05 (H) AM: GRUENBERG
05/05/05 (H) JUD AT 1:00 PM CAPITOL 120
05/05/05 (H) Scheduled But Not Heard
05/06/05 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
JASON HOOLEY, Staff
to Senator Fred Dyson
Senate Health, Education and Social Services Standing Committee
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented SB 135 on behalf of the sponsor,
Senator Dyson.
DEAN J. GUANELI, Chief Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Responded to questions during discussion of
SB 135.
SCOTT J, NORDSTRAND, Deputy Attorney General
Civil Division
Office of the Attorney General
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Presented SB 132 on behalf of the
administration and responded to questions.
ACTION NARRATIVE
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:44:37 PM. Representatives
McGuire, Anderson, Coghill, Kott, and Gara were present at the
call to order. Representatives Dahlstrom and Gruenberg arrived
as the meeting was in progress.
SB 135 - ASSAULT & CUSTODIAL INTERFERENCE
1:44:50 PM
CHAIR McGUIRE announced that the first order of business would
be CS FOR SENATE BILL NO. 135(JUD)(efd am), "An Act relating to
the crimes of assault and custodial interference; and providing
for an effective date."
JASON HOOLEY, Staff to Senator Fred Dyson, Senate Health,
Education and Social Services Standing Committee, Alaska State
Legislature, presented SB 135 on behalf of the sponsor, Senator
Dyson. He relayed that the concept of SB 135 was brought to the
sponsor by the Criminal Division, Department of Law, in response
to a couple of Alaska Court of Appeals cases in which the
defendants escaped being held accountable for their actions.
The bill addresses two crimes: assault and custodial
interference.
MR. HOOLEY explained that currently an adult person commits the
crime of assault in the third degree if he/she recklessly causes
injury to a child under 10 years of age and the injury
reasonably requires medical attention. The bill would modify
that language such that the crime of assault in the third degree
would apply in instances where the injury would cause a
reasonable caregiver to seek medical attention from a health
care professional in the form of diagnosis or treatment. He
also explained that Section 2 of the bill would add a new
subsection to AS 11.41.330 such that if a noncustodial parent
takes or holds a child without proper permission or authority,
he/she cannot claim the affirmative defense of necessity under
AS 11.81.320 unless he/she releases the child within the shorter
of either 24 hours or the time necessary to report to a peace
officer or social service agency that the child has been abused,
neglected, or is in eminent physical danger.
REPRESENTATIVE GARA, referring to the proposed change regarding
custodial interference, asked for a description of current law.
1:47:01 PM
DEAN J. GUANELI, Chief Assistant Attorney General, Legal
Services Section-Juneau, Criminal Division, Department of Law
(DOL), said that it is the DOL's view that there really is no
affirmative defense of necessity in a custodial interference
case. In Perrin v. State, however, the Alaska Court of Appeals
created a form of an affirmative defense for situations in which
a parent takes a child and then later claims that he/she took
the child because he/she thought that the child was being abused
or neglected by the custodial parent. In Perrin, he opined,
there was no evidence that the child was being abused or
neglected, and that presumably the claim of such was just an
attempt to get custody of the child. After one court-approved
visitation, the defendant took his child and left the state,
changing his appearance and name. The defendant was gone from
the state for over three months, and when he was finally caught
by authorities, he argued that he only took the child because he
felt that the child was being neglected.
MR. GUANELI said that the DOL doesn't think that such an
argument ought to be what state policy provides for, and thinks
that such a defense should not be tolerated. He then described
the language change being proposed in Section 2 of the bill,
adding his belief that if a person is really concerned about the
health and welfare of a child, then he/she should speak to the
authorities about it or take the matter to court.
1:50:20 PM
REPRESENTATIVE GARA, after offering his understanding of how the
affirmative defense of necessity currently works and how the
proposed change would work, opined that the proposed change
doesn't seem to be a good policy unless the current system is
being abused, particularly given how hard it is to prove
affirmative defense of necessity to a jury.
MR. GUANELI suggested that the policy decision for the
legislature to make is whether "these kinds of allegations,"
made without evidence, warrant turning a criminal trial into a
re-litigation of all the issues that have already been decided
with regard to a child custody matter. He opined that doing
such would be improper. He offered his belief that if there
really is evidence of abuse or neglect, a peace officer or
social service agency is going to take action.
REPRESENTATIVE GARA referred to an Anchorage newspaper article
which he said illustrates that 40 percent of all child abuse
cases have been "sitting at the Anchorage Police Department
(APD) for close to a year." Therefore, he said he is concerned
with the idea that it's a crime to take child away from an
abusive situation when no one responds to requests for help.
1:53:53 PM
MR. GUANELI, in response to a question, said that the defendant
in the Perrin case was convicted without being allowed to
present evidence to the jury, and the Alaska Court of Appeals
ruled that the defendant ought to have been allowed do so. He
offered his belief that the question before the committee is
whether state policy should allow child custody matters to be
litigated in a criminal court.
REPRESENTATIVE ANDERSON asked Representative Gara whether he
would be amenable to changing the timeframe proposed AS
11.41.330(c)(1) from 24 hours to 48 hours.
REPRESENTATIVE GARA indicated that he would be, though he also
indicated that he would be amenable to having an affirmative
defense of necessity not be accepted in situations where the
case isn't reported to a peace officer or social service agency
within "a reasonably necessary amount of time". He
characterized "24 hours" as an arbitrary timeframe.
MR. GUANELI predicted that the question would then become what
amount of time would be considered reasonably necessary, and
that there may be jurors who would find the timeframe of several
months, as occurred in the Perrin case, to be "reasonably
necessary." He relayed that he has received many calls from
custodial parents saying that their children have been taken
away and have been missing for months, and that it is
heartbreaking to have to say to them that nothing can be done
until the children are found. Then, when they are found, to
have the person who took them use the affirmative defense of
necessity by claiming in court that the children were neglected
or abused, even though there is no evidence to support such a
claim, is a shame and denies a custodial parent his/her court-
granted custodial rights. Mr. Guaneli concluded by
characterizing the change proposed via SB 135 as a reasonable
one.
1:57:44 PM
REPRESENTATIVE GARA reiterated that an affirmative defense of
necessity is difficult to prove - the courts require a
specifically high burden of proof before allowing one to offer
such a defense. He said he doesn't buy the argument that there
might be some jurors who could consider a few months to be a
reasonably necessary amount of time, adding that he doesn't have
any fear that such will occur. He again characterized "24
hours" as an arbitrary timeframe.
REPRESENTATIVE GRUENBERG mentioned that he has been involved in
cases wherein a noncustodial parent has taken the children and
never returned or has taken the children and then killed them
before committing suicide. He offered his understanding that at
least in Alaska one can obtain an ex parte domestic violence
protective order, giving one emergency custody of a child.
MR. GUANELI concurred.
REPRESENTATIVE GRUENBERG predicted that allowing a person a 48-
hour "head start" may make it impossible to find him/her and the
children he/she took.
2:01:19 PM
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on SB 135.
REPRESENTATIVE GARA, after offering a hypothetical example of a
situation for which Section 2 of the bill would apply, made a
motion to adopt Conceptual Amendment 1, to delete the language
on page 2, line 18, and to then stipulate the timeframe to be
that which is reasonably necessary. He again characterized the
24-hour timeframe as arbitrary and opined that juries will see
through an illegitimate affirmative defense of necessity.
REPRESENTATIVE ANDERSON objected. He indicated a preference for
keeping the language in Section 2 as is.
A roll call vote was taken. Representative Gara voted in favor
of Conceptual Amendment 1. Representatives McGuire, Anderson,
Coghill, Dahlstrom, and Gruenberg voted against it. Therefore,
Conceptual Amendment 1 failed by a vote of 1-5.
2:04:47 PM
CHAIR McGUIRE, remarking that she understands Representative
Gara's concern, said she would like to receive an update next
year from the department regarding whether the proposed language
actually addresses the perceived problem or whether it instead
causes more harm.
2:05:58 PM
REPRESENTATIVE GRUENBERG suggested that members might find it
worthwhile to read the dissenting opinion in the Perrin case.
REPRESENTATIVE GARA [suggested a possible second] amendment that
would alter the language such that it would refer to the shorter
of either "72 hours or the time necessary ...". Under such a
language change, he predicted, one must still prove that taking
a child saved the child from harm.
REPRESENTATIVE GRUENBERG predicted, though, that the argument in
such cases will then become what amount of time was necessary.
He remarked that as a practical matter having a bright line such
as is currently in the bill will make it easier to determine
whether too much time has elapsed. He also predicted that
having a 72-hour timeframe will complicate such cases.
REPRESENTATIVE ANDERSON concurred.
REPRESENTATIVE GARA said he would be shocked if the DOL ever
returned to the legislature to complain that a particular piece
of legislation made it too easy to convict someone.
REPRESENTATIVE GRUENBERG asked how many custodial interference
cases are prosecuted in a year.
2:09:05 PM
MR. GUANELI said less than 20. He agreed that it is very hard
to locate people who take a child and flee, and that some never
return or return only after the children are all grown, such as
occurred in a case wherein the father took his four children to
Australia. He said that in this heartbreaking case, the woman
pointed out that she had essentially lost her children because
the father went out of his way to turn them against her. Mr.
Guaneli said he respects Representative Gara's views, but
pointed out that in custodial interference cases the DOL takes a
careful look to see whether there is a reasonable explanation
for why a child was held too long. If there is a reasonable
explanation then the DOL won't convict, because the DOL is not
interested in prosecuting such cases. The DOL's fear is that
someone who is taking a child for the wrong reason will be
unjustly acquitted.
REPRESENTATIVE GRUENBERG said he is more interested in focusing
on "pre-trial." He asked whether there is anything that the
legislature can do to help locate noncustodial parents that take
their children and flee the state.
CHAIR McGUIRE suggested that that issue could be better
addressed at another time.
2:11:37 PM
REPRESENTATIVE ANDERSON moved to report CSSB 135(JUD)(efd am)
out of committee with individual recommendations and the
accompanying zero fiscal notes. There being no objection, CSSB
135(JUD)(efd am) was reported from the House Judiciary Standing
Committee.
SB 130 - WORKERS' COMPENSATION/ INSURANCE
2:11:52 PM
CHAIR McGUIRE announced that the next order of business would be
CS FOR SENATE BILL NO. 130(FIN) am, "An Act relating to a
special deposit for workers' compensation and employers'
liability insurers; relating to assigned risk pools; relating to
workers' compensation insurers; stating the intent of the
legislature, and setting out limitations, concerning the
interpretation, construction, and implementation of workers'
compensation laws; relating to the Alaska Workers' Compensation
Board; assigning certain Alaska Workers' Compensation Board
functions to the division of workers' compensation in the
Department of Labor and Workforce Development and to that
department, and authorizing the board to delegate administrative
and enforcement duties to the division; providing for workers'
compensation hearing officers in workers' compensation
proceedings; establishing a Workers' Compensation Appeals
Commission; relating to workers' compensation medical benefits
and to charges for and payment of fees for the medical benefits;
relating to agreements that discharge workers' compensation
liability; relating to workers' compensation awards; relating to
reemployment benefits and job dislocation benefits; relating to
coordination of workers' compensation and certain disability
benefits; relating to division of workers' compensation records;
relating to release of treatment records; relating to an
employer's failure to insure and keep insured or provide
security; providing for appeals from compensation orders;
relating to workers' compensation proceedings; providing for
supreme court jurisdiction of appeals from the Workers'
Compensation Appeals Commission; providing for a maximum amount
for the cost-of-living adjustment for workers' compensation
benefits; relating to attorney fees with respect to workers'
compensation; providing for the department to enter into
contracts with nonprofit organizations to provide information
services and legal representation to injured employees;
providing for administrative penalties for employers uninsured
or without adequate security for workers' compensation; relating
to fraudulent acts or false or misleading statements in workers'
compensation and penalties for the acts or statements; providing
for members of a limited liability company to be included as an
employee for purposes of workers' compensation; establishing a
workers' compensation benefits guaranty fund; making conforming
amendments; providing for a study and report by the medical
services review committee; establishing the Task Force on
Workers' Compensation; and providing for an effective date."
[Before the committee was HCS CSSB 130(L&C), as amended on
5/5/05.]
The committee took an at-ease from 2:12 p.m. to 2:13 p.m.
2:13:57 PM
REPRESENTATIVE KOTT relayed that he'd objected to moving the
bill from committee yesterday because he'd had concerns
regarding the "second injury fund," and was hoping to acquire
further information on that issue. He added:
It still seems to be somewhat confusing as to whether
or not the second injury fund is working or not. My
sense is that we err on the side of conservatism. I
think at this point we should leave the second injury
fund as is, in the bill, as it was put in yesterday,
[and I think] Representative Coghill thought the same
- [that] there may be some other impacts from a
judicial standpoint. So I think at this point,
between now and whenever this bill reaches us on the
floor for a vote, there'll still be sufficient time.
But I believe, at this point, that we should leave
that second injury fund in the bill in spite of what
Mr. Cattanach said, that it's not working. So I
haven't been convinced one way or the other that it is
or is not working. I know it is somewhat of a cost
driver [though] we couldn't get the numbers from the
Division of Insurance [regarding] what it was costing
employers to keep it in. I still believe there is a
tail on some of those cases, and I'm a little
concerned that those injured workers may not get what
is ultimately due to them.
REPRESENTATIVE KOTT, in conclusion, relayed that having been
given some assurance that his concerns are being met, he is now
willing to move the bill from committee.
REPRESENTATIVE KOTT moved to report HCS CSSB 130(L&C) [as
amended] out of committee with individual recommendations and
the accompanying fiscal notes. There being no objection, HCS
CSSB 130(JUD) was reported from the House Judiciary Standing
Committee.
SB 132 - HUMAN RIGHTS COMMISSION
CHAIR McGUIRE announced that the final order of business would
be SENATE BILL NO. 132(efd fld), "An Act relating to complaints
filed with, investigations, hearings, and orders of, and the
interest rate on awards of the State Commission for Human
Rights; and making conforming amendments." [Before the
committee was HCS SB 132(STA).]
2:16:35 PM
SCOTT J, NORDSTRAND, Deputy Attorney General, Civil Division,
Office of the Attorney General, Department of Law (DOL),
presented SB 132 on behalf of the administration. He said that
the bill is designed to enhance the effectiveness of the Alaska
State Commission for Human Rights ("commission") by allowing the
commission to evaluate complaints of unlawful discrimination and
allocate its resources to prosecuting those complaints that will
best serve the commission's goal of eliminating unlawful
discrimination. The bill will improve the commission's
procedures, will enhance the fairness of commission procedures,
will clarify the remedies that the commission may award, and
will address some housekeeping matters.
MR. NORDSTRAND relayed that in general, SB 132 is designed to
address the lack of prosecutorial discretion that the commission
now suffers from based on an interpretation of the Alaska
Supreme Court case, Department of Fish & Game v. Meyer, which
said that a finding of substantial evidence requires the
commission to pursue further procedures. The bill adds
statutory provisions allowing the commission to exercise
prosecutorial discretion and dismiss claims that wouldn't be in
the best interest of using state resources. He remarked that
procedural aspects are included in the bill, clarifying for
participants what they are being charged with and why, and a
summary judgment procedure has been added as well. Furthermore,
the bill lists the possible remedies available to the commission
to alleviate discrimination, though because it is not an all-
inclusive list, the statement that any appropriate relief may be
awarded has been left in existing statute.
2:19:31 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 1,
which read [original punctuation provided]:
Page 2, line 27:
Delete "The commission, in its"
Page 2, line 28, through page 3, line 1:
Delete all material.
Page 3, line 4:
Delete ", in the executive director's
discretion,"
Page 3, following line 15:
Insert the following new material:
"(c) The commission, in its discretion, may, but
is not required to, review the executive director's
order of dismissal under (a) or (b) of this section
and may affirm the order, remand the complaint for
further investigation, or, if the commission concludes
that substantial evidence supports the complaint of an
unlawful discriminatory practice, refer the complaint
for conference, conciliation, and persuasion as
provided in AS 18.80.110, or for hearing."
Page 3, line 16:
Delete "(c)"
Insert "(d)"
Page 3, line 22:
Delete ", in the executive director's
discretion,"
REPRESENTATIVE ANDERSON objected for the purpose of discussion.
MR. NORDSTRAND, in response to comments and questions by
Representative Gruenberg, explained that Amendment 1 changes the
language currently in Section 4 such that the proposed provision
allowing the commission to review an executive director's order
of dismissal would apply to both subsection (a) and subsection
(b) of proposed AS 18.80.112 - currently that proposed provision
only applies to subsection (a) - and also deletes language that
suggests that the discretion to review an executive director's
order of dismissal lies solely with the executive director.
REPRESENTATIVE ANDERSON removed his objection.
CHAIR McGUIRE asked whether there were further objections to
Amendment 1. There being none, Amendment 1 was adopted.
2:23:29 PM
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on SB 132.
REPRESENTATIVE GRUENBERG mentioned that he and Mr. Nordstrand
had discussed another possible amendment. Referring to the
language on page 3, line 31 - which stipulates that a person
[charged in an accusation] may file a written answer and may
appear at the hearing, with or without counsel and submit
evidence - he said he wants to be very clear that current law
does not provide free counsel. He suggested that the
aforementioned language should include the phrase, "at their own
expense".
MR. NORDSTRAND, after clarifying that the aforementioned
language pertains to those charged in an accusation, he pointed
out that the commission retains the discretion to award
reasonable expenses, including attorney fees, as it deems
appropriate.
REPRESENTATIVE GRUENBERG remarked, then, that he would not offer
an amendment to change the aforementioned language.
REPRESENTATIVE GARA opined that SB 132 has substantial problems.
For example, the bill refers to "discriminatory practice", and
therefore his concern, he relayed, is that such language will
stipulate that the behavior must be institutionalized and
repetitive before anyone can seek relief. He then indicated
that he would be offering an amendment to change the term
"discriminatory practice" to "discriminatory conduct".
MR. NORDSTRAND explained that the DOL is merely trying to
conform the language in the provisions being changed by the bill
to the language currently in AS 18.80.220, for example, which
pertains to unlawful employment "practices." The use of the
term "discriminatory practice" is not meant to change the intent
of the law, but rather to merely provide for consistency. He
offered his understanding that a single act of discrimination
would certainly still constitute behavior sufficient to give
rise to a discrimination claim.
REPRESENTATIVE GARA indicated that he is still concerned about
this issue, that the term "practice" will be interpreted to mean
only a course of conduct. He asked Mr. Nordstrand whether he
would be amenable to a conceptual amendment which would
stipulate that a single occurrence can constitute a practice
under SB 132.
MR. NORDSTRAND said he doesn't know where such a conceptual
amendment would go, and offered his belief that [current]
statute already describes [single occurrences] as practices. He
elaborated:
What is being described here as being subject of the
complaint, it has to refer to violating the rest of
the statute, and the rest of the statute describes
these things as unlawful employment and discrimination
practices. So I think it would make it ... less
clear. ... "Unlawful financing practice" - AS
18.80.250; "Unlawful practices in the sale or rental
of real property" - that's AS 18.80.240; Unlawful
practices in places of public accommodation" - AS
18.80.230: I think it makes sense for the violation
to track what the actual description of the
discriminatory practices are, and that's all we were
trying to do.
2:28:47 PM
REPRESENTATIVE GARA, after relaying his understanding of Mr.
Nordstrand's point, made a motion to adopt Conceptual Amendment
2, to define, somewhere in statute, "discriminatory practice" as
including a practice that involves one occurrence of that
conduct.
CHAIR McGUIRE suggested that Conceptual Amendment 2 should say,
"one or more".
REPRESENTATIVE GARA concurred. [Although no formal motion to
amend Conceptual Amendment 2 was made, Conceptual Amendment 2
was treated as amended.
REPRESENTATIVE ANDERSON objected to the motion to adopt
Conceptual Amendment 2 [as amended]. He opined that such a
definition change ought to be part of a different bill, and
offered his interpretation of Mr. Nordstrand's comments.
MR. NORDSTRAND opined that there is a difference between
"conduct" and "practice" in the sense that conduct is
essentially evidence of a practice, and offered his belief that
the statute says one cannot engage in a practice that is illegal
under the statute. It's important, he added, to provide
consequences for what the statute says is an unlawful practice,
and the conduct - whether it be one act or several - gives rise
to the unlawful practice itself.
REPRESENTATIVE ANDERSON surmised, then, that Mr. Nordstrand is
saying that "practice" encapsulates "conduct", and thus use of
the word "practice" will make the bill broader and better.
2:31:46 PM
MR. NORDSTRAND concurred.
REPRESENTATIVE DAHLSTROM asked whether adoption of Conceptual
Amendment 2 [as amended] would weaken the bill. If not, she
surmised, then the intent of the bill would remain while
members' concerns would also be addressed.
MR. NORDSTRAND said he would be very concerned about trying to
define the word "conduct" in a specific way. For example
discrimination might not be displayed as an action, it might
instead be displayed as a failure to act. Therefore, the best
default might perhaps be to have all the statutes use only the
word "conduct", he remarked, but pointed out that such a word is
ambiguous and the DOL had wanted to avoid that. Furthermore, if
the word "conduct" is used, then each of the statutes pertaining
to discrimination would have to be rewritten such that they each
specifically list what constitutes the unlawful behavior and
whether committing that behavior only once is sufficient for
violation. He elaborated:
The statute isn't written in terms of actions. It's
not written in terms of, "one act of something is
unlawful." It says it's unlawful to discriminate.
That means if you acted in such a way, for these
improper motives -- and it's really about motives, in
a sense, not about the particular act, and that's what
makes it hard to define that way. I think [it] could
make a difference.
REPRESENTATIVE ANDERSON concurred.
2:34:38 PM
REPRESENTATIVE GARA withdrew Conceptual Amendment 2 [as amended]
but noted that when words in the law are changed, courts could
construe the act of changing those words to mean that the
legislature intends for the law to have a different meaning than
it used to. He said he is comfortable with the meaning
currently being used, and is a little uncomfortable with the
meaning that could be construed via use of the new term. He
expressed a desire for the law to be made clearer.
REPRESENTATIVE GRUENBERG mentioned that he'd served as a hearing
officer on a number of State Commission for Human Rights cases
several years ago, and noted that there is a whole body of
common law construing current law with regard to the terms
"practice" and "conduct", adding that his preference would be to
be very careful about changing or upsetting what he referred to
as a very carefully crafted area of law.
2:36:57 PM
REPRESENTATIVE GARA referred to page 2, lines 7-9, which
stipulates that a complaint must be filed within 180 days. He
asked what the current statute of limitations is for the
[commission] to bring an action.
MR. NORDSTRAND replied that it, too, is 180 days, though it is a
regulatory limitation rather than a statutory limitation.
REPRESENTATIVE GARA said he is a little uncomfortable saying
that a person has to complain that quickly in order to get help
from the State of Alaska.
MR. NORDSTRAND said that timeframe is consistent with federal
law and doesn't preclude an aggrieved person from bringing a
human rights Act claim in court for up to two years, the actual
statute of limitations; rather, the timeframe of 180 days merely
allows the [commission] to set a reasonable period of time after
the discriminatory act for a person to come to the [commission]
for help. He said the DOL felt it was not appropriate for a
statute of limitations to be in a regulation, and therefore
thought any timeframe limitation should become part of statute.
REPRESENTATIVE GARA made a motion to adopt Amendment 3, to
change - in Section 2, proposed subsection (c) - "180" days to
"one year".
REPRESENTATIVE ANDERSON objected. He opined that a half a year
is a sufficient timeframe.
REPRESENTATIVE COGHILL asked whether there have been any
situations wherein the 180-day timeframe has not been
sufficient.
MR. NORDSTRAND said is possible that someone may have missed the
timeframe, but suggested that it makes sense for the commission
to have the same statute of limitations regarding agency
discrimination claims as the U.S. Equal Employment Opportunity
Commission (EEOC), particularly since the two have "sharing
agreements."
[HCS SB 132(STA), as amended, was held over with the motion to
adopt Amendment 3 left pending.]
ADJOURNMENT
The House Judiciary Standing Committee was recessed at 2:41 p.m.
to a call of the chair. [The meeting was never reconvened.]
| Document Name | Date/Time | Subjects |
|---|