04/21/2005 04:07 PM House RLS
| Audio | Topic |
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| Start | |
| HB103 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE RULES STANDING COMMITTEE
April 21, 2005
4:07 p.m.
MEMBERS PRESENT
Representative Norman Rokeberg, Chair
Representative John Coghill, Vice Chair
Representative John Harris
Representative Vic Kohring
Representative Ethan Berkowitz
Representative Beth Kerttula
MEMBERS ABSENT
Representative Lesil McGuire
COMMITTEE CALENDAR
HOUSE BILL NO. 103
"An Act requiring an actionable claim against the state to be
tried without a jury."
- MOVED CSHB 103(RLS) OUT OF COMMITTEE
HOUSE BILL NO. 147
"An Act relating to the regulation of insurance, insurance
licensing, surplus lines, insurer deposits, motor vehicle
service contracts, guaranteed automobile protection products,
health discount plans, third-party administrators, self-funded
multiple employer welfare arrangements, and self-funded
governmental plans; and providing for an effective date."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: HB 103
SHORT TITLE: CLAIMS AGAINST THE STATE
SPONSOR(S): REPRESENTATIVE(S) KELLY
01/24/05 (H) READ THE FIRST TIME - REFERRALS
01/24/05 (H) STA, JUD, FIN
03/03/05 (H) STA AT 8:00 AM CAPITOL 106
03/03/05 (H) Moved Out of Committee
03/03/05 (H) MINUTE(STA)
03/04/05 (H) STA RPT 1DNP 5NR
03/04/05 (H) DNP: GRUENBERG;
03/04/05 (H) NR: GARDNER, GATTO, RAMRAS, ELKINS,
SEATON
03/09/05 (H) JUD AT 1:00 PM CAPITOL 120
03/09/05 (H) Heard & Held
03/09/05 (H) MINUTE(JUD)
03/16/05 (H) JUD AT 1:00 PM CAPITOL 120
03/16/05 (H) Moved Out of Committee
03/16/05 (H) MINUTE(JUD)
03/17/05 (H) JUD RPT 1DP 3DNP 2NR
03/17/05 (H) DP: MCGUIRE;
03/17/05 (H) DNP: GARA, GRUENBERG, KOTT;
03/17/05 (H) NR: DAHLSTROM, ANDERSON
04/14/05 (H) FIN AT 1:30 PM HOUSE FINANCE 519
04/14/05 (H) Moved CSHB 103(FIN) Out of Committee
04/14/05 (H) MINUTE(FIN)
04/15/05 (H) FIN RPT CS(FIN) NT 2DP 1DNP 7NR
04/15/05 (H) DP: FOSTER, KELLY;
04/15/05 (H) DNP: CROFT;
04/15/05 (H) NR: HAWKER, MOSES, HOLM, STOLTZE,
WEYHRAUCH, MEYER, CHENAULT
04/21/05 (H) RLS AT 3:00 PM FAHRENKAMP 203
WITNESS REGISTER
HEATH HILYARD, Staff
to Representative Mike Kelly
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Explained the need for Version F of HB 103.
REPRESENTATIVE BRUCE WEYHRAUCH
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Explained his amendment to HB 103 in the
House Finance Committee.
ACTION NARRATIVE
CHAIR NORMAN ROKEBERG called the House Rules Standing Committee
meeting to order at 4:07:14 PM. Representatives Rokeberg,
Coghill, Harris, and Kohring were present at the call to order.
Representatives Berkowitz and Kerttula arrived as the meeting
was in progress.
HB 103-CLAIMS AGAINST THE STATE
4:08:51 PM
CHAIR ROKEBERG announced that the only order of business would
be HOUSE BILL NO. 103, "An Act requiring an actionable claim
against the state to be tried without a jury."
4:09:09 PM
REPRESENTATIVE COGHILL moved to adopt CSHB 103, Version 24-
LS0403\F, Bullock, 4/19/05, as the working document.
REPRESENTATIVE BERKOWITZ objected for discussion purposes.
4:09:27 PM
HEATH HILYARD, Staff to Representative Mike Kelly, Alaska State
Legislature, explained that an amendment offered in the House
Finance Committee was, in essence, Version F. However, the
structure of the amendment was technically incorrect, and
therefore a more [technically] correct version [Version F] is
being offered.
4:10:00 PM
REPRESENTATIVE BERKOWITZ asked if Mr. Hilyard had run [Version
F] by Representative Weyhrauch.
MR. HILYARD replied no.
4:10:22 PM
MR. HILYARD related his understanding of the amendment
Representative Weyhrauch offered and the sponsor accepted in the
House Finance Committee. He explained that after conferring
with the drafter, it was concluded that the structure of the
amendment, which the language inserted : "The state may request
a jury trial under this subsection.", wasn't technically
correct.
4:11:29 PM
REPRESENTATIVE COGHILL surmised then that the language "Unless
the state requests a jury trial," in subsection (b) is what
Representative Weyhrauch wanted to insert.
MR. HILYARD stated that since Version F had been drafted he
hadn't reviewed it with Representative Weyhrauch, although he
believes it's consistent with Representative Weyhrauch's intent,
given the nature of his testimony.
4:12:07 PM
REPRESENTATIVE KERTTULA pointed out that under CSHB 103(FIN) the
language "The state may request a jury trial under this
subsection." doesn't intimate that the state will receive the
jury trial. However, Version F seems to intimate that the state
will obtain a jury trial. Representative Kerttula asked if, on
the record, there was any intent with that.
MR. HILYARD said that he was relying on Representative
Weyhrauch's amendment as well as his recollection of the nature
of the discussion surrounding the amendment. He offered that
the sponsor would be happy to allow the legislation to stand as
originally amended [in the House Finance Committee]. However,
upon conferring with the drafter, the drafter didn't believe the
language was consistent with Representative Weyhrauch's intent.
CHAIR ROKEBERG pointed out that in CSHB 103(FIN) the use of
"may" is permissive and indicates the court could refuse.
However, Version F seems to mandate that upon a request [for a
jury trial], it would be granted. Therefore, the question as to
Representative Weyhrauch's intent remains.
4:14:16 PM
REPRESENTATIVE BERKOWITZ inquired as to the criteria the state
would use to make the request [for a jury trial]. He related
his understanding that this legislation is referred to as the
Bethel jury legislation and is in response to the concern with
Western Alaskan juries.
MR. HILYARD acknowledged that some do refer to HB 103 as the
Bethel jury legislation, but pointed out that the sponsor
doesn't refer to it as such. He noted that the committee packet
should include a document entitled "Sample Jury Awards" from
throughout the state, two of which are from Bethel. Mr. Hilyard
noted that this list was prepared by the Attorney General's
Office as a sample.
4:15:08 PM
REPRESENTATIVE BERKOWITZ inquired as to the sponsor's sense of
what the correct jury verdict would've been in those cases. He
asked if the cases [highlighted in the "Sample Jury Awards"]
were sent up on appeal to the Alaska Supreme Court and the
initial awards reduced.
MR. HILYARD related his understanding that in two of the cases
the judgments were reversed on appeal and for one case, Lance
Miller v. State, there are still post-trial motions pending.
REPRESENTATIVE BERKOWITZ said that he wasn't referring to when
the verdict is reversed but rather when the award was reduced.
MR. HILYARD answered that he doesn't know, and noted that he has
been relying on counsel from the Attorney General's Office.
4:16:40 PM
REPRESENTATIVE BRUCE WEYHRAUCH, Alaska State Legislature,
recalled that his amendment in the House Finance Committee was
that the state may request a trial by jury.
CHAIR ROKEBERG said that the committee wanted to be sure of
Representative Weyhrauch's intent and whether Version F is
agreeable to him.
REPRESENTATIVE WEYHRAUCH related his opinion that the language
in Version F essentially does the same thing as CSHB 103(FIN)
because the state, and no one else, can request a jury trial if
the state is a defendant. The intent behind this legislation
was to keep large jury verdicts from occurring in Western
Alaska. However, data showed that may of these verdicts were
reversed on appeal/reduced or the state wasn't taking advantage
of remitter, by which a judge can be asked for a decline. The
purpose of the amendment proposed in the House Finance Committee
was to allow a jury trial in some instances. In some ways,
giving all the authority to the state seemed to address the
concern. The deal, he explained, was that juries were being
harmful to the state, and therefore if the state wants a jury
trial, it could live by the consequences.
4:19:09 PM
REPRESENTATIVE KERTTULA asked whether a jury trial would be
mandatory if the state requested it.
REPRESENTATIVE WEYHRAUCH explained that currently if a complaint
is filed and an answer is filed, then a request for a trial by
jury would have to occur within five to ten days. Under this
legislation, the state could request a trial by jury, although
the nonstate entity could not.
CHAIR ROKEBERG asked if Representative Weyhrauch believes
Version F fairly reflects the intention of his amendment.
REPRESENTATIVE WEYHRAUCH commented that under Version F, it
seems to present the corollary of [of his amendment].
4:19:51 PM
CHAIR ROKEBERG reiterated that the concern has been that the use
of "may" is permissive and may allow the court to deny the
state's request for a trial by jury.
REPRESENTATIVE WEYHRAUCH disagreed, and emphasized that if the
state requested a trial by jury under his amendment, then the
state received a trial by jury.
4:20:50 PM
REPRESENTATIVE BERKOWITZ withdrew his objection, and therefore
Version F was adopted and placed before the committee.
4:21:01 PM
REPRESENTATIVE BERKOWITZ opined that HB 103 is an accusation
against Western Alaska juries without any foundation.
Representative Berkowitz questioned why the state would get to
choose and the plaintiff wouldn't. He also questioned why one
would desire taking away the jury's right to review cases. "It
seems to me a bit of sovereign arrogance for us to pursue this
course," he said. He concluded by urging the committee to
reject this legislation soundly.
4:21:44 PM
REPRESENTATIVE KERTTULA pointed out nothing in the legislation
specifies why the state would be allowed [the ability to request
a trial by jury] versus other defendants. The main reason given
for allowing the aforementioned was in regard to juries in
Western Alaska.
4:22:11 PM
CHAIR ROKEBERG commented that he wasn't sure that the Western
Alaska reasoning is entirely accurate.
REPRESENTATIVE KERTTULA agreed that might not be the case, but
noted that was the reasoning provided.
4:23:04 PM
REPRESENTATIVE BERKOWITZ related his understanding that of the
four sample jury awards, two verdicts had been reversed.
Therefore, the question as to whether the amount was
satisfactory was never addressed. He noted that he didn't know
the outcome of the remaining two sample jury awards. Therefore,
basing a large policy change on two cases, without considering
the totality of evidence, seems to be fairly arbitrary, he
opined. Representative Berkowitz related that the anecdotal
evidence he has heard is that judge-tried cases tend to break in
favor of the plaintiff more often. This, taking power away from
jury and giving it to the judge only, seems particularly ironic
when the conservative movement in America is screaming about the
power of judges. Therefore, Representative Berkowitz didn't see
any intellectual consistency with this or any practical need for
it, or any evidence supporting a charge that juries are out of
control anywhere.
4:24:39 PM
REPRESENTATIVE HARRIS asked if the Department of Law (DOL)
requested that this legislation be brought forward.
MR. HILYARD specified that although DOL has been very involved
with the preparation of the legislation, no specific request
came from DOL. As has been stated by the sponsor, the primary
motivation for the introduction of HB 103 was that it was the
request of a retired attorney in Fairbanks and was related to
the sponsor's personal disposition on the matter. Although DOL
and the Alaska Court System have been willing to assist with the
legislation, they have never offered a position on it.
4:25:59 PM
REPRESENTATIVE HARRIS asked if this legislation refers to any
type of actionable item against the state.
MR. HILYARD related his understanding that this legislation only
refers to civil torts. He pointed out that there is a
distinction in the Alaska Constitution in Article 1, Section 16,
which provides for jury trials in civil cases. Furthermore,
Article 2, Section 21, specifies, "The legislature shall
establish procedures for suits against the State."
4:27:01 PM
MR. HILYARD explained that the process [proposed in HB 103] was
the process by which actionable claims were handled prior to
1975, when a relatively arbitrary change was made by the
legislature in response to a controversy with the University of
Alaska.
4:27:59 PM
REPRESENTATIVE BERKOWITZ inquired as to how many actionable
claims against the state would be impacted by this legislation.
MR. HILYARD related his understanding that on average somewhere
between five to ten such cases go to trial. He noted that it's
difficult to track these cases. He related his understanding
that the Alaska Court System based its fiscal note on roughly
five cases. According to DOL, there are approximately 75
applications [requesting actionable claims against the state],
of which 10 percent or less go to trial.
REPRESENTATIVE BERKOWITZ inquired as to how many the state wins
of the five to ten cases.
MR. HILYARD said that DOL or the Alaska Court System couldn't
provide concrete information regarding the amount of the average
jury award and how many cases [the state] actually wins because
of the difficulty in gathering such data.
REPRESENTATIVE BERKOWITZ said that he found it incredible that
DOL couldn't obtain such information on five to ten cases. He
opined that the legislature doesn't know what it's doing nor the
consequences of enacting HB 103.
4:30:13 PM
CHAIR ROKEBERG expressed the need for such statistics because
the legislature will have to appropriate the judgment awards on
an annualized basis. Chair Rokeberg noted that many of the
committee members have other commitments at 4:30 p.m. and thus
he expressed his interest in bringing the legislation to
question.
4:30:43 PM
REPRESENTATIVE BERKOWITZ moved to table CSHB 103, Version F,
until the aforementioned information was obtained.
CHAIR ROKEBERG objected.
A roll call vote was taken. Representatives Berkowitz and
Kerttula voted in favor of tabling CSHB 103, Version F.
Representatives Harris, Coghill, Kohring, and Rokeberg voted
against it. Therefore, the motion failed by a vote of 2-4.
4:31:37 PM
REPRESENTATIVE COGHILL moved to report CSHB 103, Version 24-
LS0403\F, Bullock, 4/19/05, out of committee with individual
recommendations and the accompanying fiscal notes.
CHAIR ROKEBERG objected, and requested that the sponsor provide
the earlier requested information before this legislation is
calendared.
MR. HILYARD said that he would do his best.
CHAIR ROKEBERG withdrew his objection.
4:32:12 PM
REPRESENTATIVE HARRIS objected, and opined that he would like to
speak with the sponsor on this a bit more in depth before the
legislation moves from committee. He commented that this could
be a serious matter.
4:32:54 PM
CHAIR ROKEBERG said that he wasn't sure that the committee would
have time to take up this legislation again.
REPRESENTATIVE HARRIS withdrew his objection, but indicated the
need to speak with the sponsor before the legislation is
calendared.
4:33:36 PM
REPRESENTATIVE BERKOWITZ objected.
4:33:48 PM
A roll call vote was taken. Representatives Harris, Coghill,
Kohring, and Rokeberg voted in favor of reporting CSHB 103,
Version 24-LS0403\F, Bullock, 4/19/05, from committee.
Representatives Kerttula and Berkowitz voted against it.
Therefore, CSHB 103(RLS) was reported out of the House Rules
Standing Committee by a vote of 4-2.
4:34:18 PM
MR. HILYARD noted that he has been pursuing the requested
information quite seriously, but has not be able to obtain it.
4:34:42 PM
REPRESENTATIVE BERKOWITZ said that he wasn't questioning whether
Mr. Hilyard was trying to obtain the information, and suggested
that perhaps DOL is setting him up.
ADJOURNMENT
There being no further business before the committee, the House
Rules Standing Committee meeting was recessed at 4:35:00 PM.
[This meeting reconvened on April 25, 2005.]
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