02/09/2009 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing | |
| SJR3 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| *+ | SJR 3 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
February 9, 2009
1:30 p.m.
MEMBERS PRESENT
Senator Hollis French, Chair
Senator Bill Wielechowski, Vice Chair
Senator Kim Elton
Senator Lesil McGuire
Senator Gene Therriault
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
Confirmation Hearing
Chief Administrative Law Judge
Terry Thurbon
CONFIRMATION ADVANCED
SENATE JOINT RESOLUTION NO. 3
Relating to carrying firearms in national parks.
HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: SJR 3
SHORT TITLE: FIREARMS IN NATIONAL PARK
SPONSOR(s): SENATOR(s) THERRIAULT
01/26/09 (S) READ THE FIRST TIME - REFERRALS
01/26/09 (S) JUD
02/09/09 (S) JUD AT 1:30 PM BELTZ 211
WITNESS REGISTER
TERRY THURBON, Chief Administrative Law Judge
Office of Administrative Hearings
Juneau, AK
POSITION STATEMENT: Chief Administrative Law Judge appointee.
DAVE STANCLIFF, Staff
to Senator Therriault
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Provided information relative to SJR 3.
SALLY GIBERT, ANILCA Coordinator
Office of Project Management
Department of Natural Resources
Anchorage, AK
POSITION STATEMENT: Provided clarification relative to SJR 3.
ACTION NARRATIVE
1:30:48 PM
CHAIR HOLLIS FRENCH called the Senate Judiciary Standing
Committee meeting to order at 1:30 p.m. Present at the call to
order were Senators Therriault, Wielechowski and French.
Senators Elton and McGuire arrived soon thereafter.
^CONFIRMATION HEARING
CHAIR FRENCH announced the first order of business is the
confirmation hearing of Terry Thurbon. He read a letter from the
governor stating that the position does not require legislative
confirmation, but she is submitting Ms. Thurbon's name because
it is important that legislators have confidence in the
individual who is the chief administrative law judge for the
state of Alaska.
Senator Elton joined the committee.
1:31:13 PM
TERRY THURBON, Chief Administrative Law Judge, Office of
Administrative Hearings (OAH), said that in addition to running
OAH her duties include: hearing cases, reviewing applications
for the Workers' Compensation Appeals Commission and
administering the code of hearing officer conduct. When she
sought to be the state's first administrative law judge about
four years ago, she had no idea how many dimensions the job
would have and how much she would learn about the way the
executive branch works and interfaces with the legislative and
judicial branches.
She was teaching at the University of the Pacific (UOP) school
of law when she got the bug to leave California and come to
Alaska. For the first 12 years she was in private practice
focusing in natural resource and environmental law. For variety
she also advised business clients on contracts, did occupational
licensing and property dispute resolutions. After that she spent
a year at the Department of Law again focusing primarily on
environmental conservation and natural resources.
Along the way she developed an interest in administrative law
and the administrative adjudication processes. She became
excited at the prospect of helping to get the new Office of
Administrative Hearings off on the right foot. She's been in the
job for a little over four years and is asking for reappointment
to a second five-year term. She noted that the first term was
truncated because of the Title 39 provision for a March 1
expiration date.
Although she intended to do this job for just five years, she
found that getting the agency up and running smoothly took
longer than the 18 months she anticipated. Also, she didn't
account for the spikes in the case load as well as a large
backlog that was inherited when hearing units were consolidated
into the OAH.
MS. THURBON said she'd like to continue working to make the
hearing processes more efficient and timely. Also, there are a
host of ancillary functions meant to improve administrative
adjudications. In addition to administering the code of hearing
officer conduct, she does training and monitors the hearing
function and makes recommendations to the Legislature for
improvements.
1:36:02 PM
CHAIR FRENCH recognized that Senator McGuire had joined the
meeting.
MS. THURBON again said that the sole reason she asked the
governor for reappointment is that there is more she wants to
do. "If we'd gotten everything done that I wanted to do in that
first few years, then I probably would not have put my name in
again. … If you have confidence in me continuing, I'd be happy
to spend a few more years seeing if we can't bring it to the
next level and make some more traction on the improvement of
administrative adjudication for the executive branch."
1:37:31 PM
SENATOR ELTON presumed that she might not be interested in
staying for a full 5 years.
MS. THURBON conceded that she doesn't know so she isn't giving
any guarantees.
CHAIR FRENCH asked the degree to which she interacts and
cooperates with the Workers' Compensation Appeals Board.
MS. THURBON explained that the chief administrative law judge
was given two duties in the legislation that created the
Workers' Compensation Appeals Commission. The first duty is to
review applications, recruit and send names to the governor for
the attorney chair position and the management and labor lay-
commissioner positions for the appeals commission. She sends two
names for lay-commissioner positions and three names for the
attorney chair position. She goes through that process once or
twice a year. The second duty is to appoint pro tem chairs when
the attorney chair has a conflict or will be absent for longer
than 10 days. She's had to do that four or five times and all
have been conflict cases. Beyond those two functions is the
statutory duty to monitor administrative adjudication processes,
survey participants and comment to the Legislature on
improvements. Those duties apply to all executive branch
adjudications across the board, she added.
CHAIR FRENCH asked her to describe one or two controversial
topics she's worked on.
MS. THURBON highlighted the certificate of need (CON) cases as
hot button topics where competing businesses slug it out through
an administrative adjudication process. Professional licensing
cases can be contentious, but they often provide interesting
issues-both in the application denials and the disciplinary
cases. OAH also does administrative child support order hearings
for the Child Support Services Division. In this area she's
proud to say that many of the cases are resolved through an
informal process thus avoiding the elaborate and costly exercise
of writing decisions with findings and conclusions.
1:42:56 PM
SENATOR WIELECHOWSKI said he supported moving the administrative
law judges into a single system and it seems to be working well.
On the other hand, he has concerns about the Workers'
Compensation Appeals Commission. Based on conversations he's had
with people in the system, he's not sure that is working the way
it was intended. First, it's very expensive. Also, he's hearing
that employers are doing interlocutory appeals when employees
win cases. That extends the employee's case longer and longer
during which time they get no compensation. Then they're
remanding back to the workers' comp board and when the employer
gets another decision they don't like they re-appeal to the
Workers' Compensation Appeals Commission. The system doesn't
seem to be balanced in favor of employees. He asked if there has
been any study on how effective it's actually been.
1:44:48 PM
CHAIR FRENCH asked Ms. Thurbon to include a definition of
interlocutory appeal in her response.
MS. THURBON said her understanding of the interlocutory process
under the Workers' Compensation Appeals Commission regulations
is that it's similar to the process in the courts. Parties who
are before a lower tribunal-the Workers' Compensation Board-can
pursue an issue up to the next level on appeal before their case
is fully developed. They get resolution on the issue and in
effect it directs the lower tribunal on how to deal with the
particular issue. For example, in workers' comp cases it often
comes up as a question of whether or not an additional and
independent medical examination should be required.
MS. THURBON relayed that in 2008 OAH did include closed Workers'
Compensation Appeals Commission cases in their survey project.
Just 10 responses were received and some of the narrative
comment clearly was directed at a particular board member or
hearing officer and not at the appeals commission. That being
said, her perception is that there was a fair amount of comment
along the lines that the process wasn't working. She doesn't
recall that any of the responses pointed to the interlocutory
appeal opportunity as being the principle problem, "but
certainly amongst those ten people, several of them did have
that perception," she said.
1:47:36 PM
MS. THURBON said it is interesting that a significant percentage
of OAH case survey respondents indicated that they were happy
with the process even if they weren't happy with the result of
the case. It was the reverse in the completed workers' comp
surveys. Even when they liked the result, they sometimes didn't
like the process. "That's as much as I can tell you at this
point. … I have not monitored very many Workers' Compensation
Appeals Commission proceedings as far as observing them or
talking to the parties directly myself," she said.
SENATOR WIELECHOWSKI observed that her limited data does
indicate there is a problem and asked if she has a suggestion on
how to fix it.
MS. THURBON replied it's too soon to offer a solution because
she hasn't identified a specific problem based on the small data
set, but it is appropriate to direct her agency to focus more
closely on the workers' compensation area. In part OAH rolled
workers comp in to the surveys this last year because they
realize that it's an area that might provide meaningful
feedback.
SENATOR ELTON reviewed the interlocutory appeal process she
described and asked if he's missing something because that's not
what happens between the district court and the superior court
or the superior court and the supreme court.
MS. THURBON said her understanding of the jurisdiction of the
Workers' Compensation Appeals Commission is that it would take
appeals from the Workers' Compensation Board and also function
as the equivalent of a policy maker on workers' comp legal
issues. They have a statutory provision that dictates the extent
to which the supreme court - when an appeal goes to the next
level - must defer to their decisions on the law and whether or
not the court system revisits back issues. That said, there is
the potential for interlocutory appeals between lower levels of
courts and higher levels of courts within the judicial branch
and even between executive branch agencies such as OAH and the
court system, but it isn't exercised as freely as is seen in the
Workers' Compensation Appeals Commission setting. She offered to
look into it further.
CHAIR FRENCH asked for clarification that the Workers'
Compensation Appeals Commission isn't under her supervision.
Nominating officers to the commission is more or less the extent
of her involvement.
MS. THURBON said yes, except for when she provides a chair pro
tem. She can do that by hiring a contract person or she can loan
someone from her shop if they have the minimum background in
workers' compensation. Even then it's not treated like an OAH
case; it's not carried on the OAH case list or given an OAH case
number.
1:53:14 PM
SENATOR THERRIAULT recalled that workers' compensation
specifically was not included when SB 203 passed [in 2004 to
establish OAH]. It was separate legislation that gave OAH the
limited interaction that it has. It's just this year you brought
the review into your shop, he added.
MS. THURBON said yes. The mandate for OAH to monitor hearing
functions throughout the executive branch and to survey hearing
participants has always applied beyond her office, but early on
they sent surveys only to their own case parties. After about a
year they added other case parties starting with workers'
compensation at the appeals commission level. This year she
intends to add the Workers' Compensation Board level and perhaps
some of the others such as DMV or Health and Social Services in-
house public assistance type hearings. She has to figure out
what is doable, but she would agree that this is a new
development as far as getting information.
SENATOR THERRIAULT highlighted that the legislature wrote that
section in hopes that other agencies that initially were opposed
to being considered to be part of the purview of the new shop
would become more comfortable and want to be added. The fact
that OAH makes timely decisions may or may not help the problem
that Senator Wielechowski talked about, he said.
Another reason he supported her in this position is that she
taught legal writing at a law school. He is interested that the
decisions coming from her shop are well written and researched
so they could stand up to scrutiny if they were appealed into
the court system. He asked how she is doing on that.
MS. THURBON replied she believes that the quality of decision
writing is better, but there is room for further improvement.
CHAIR FRENCH asked how many administrative law judges (ALJ) she
has underneath her.
MS. THURBON explained that there are seven, one is a deputy
chief who has some administrative duties and the other six are
devoted to hearing cases.
CHAIR FRENCH asked if the ALJs are concentrated in one place or
spread out like the court system.
MS. THURBON explained that they have four judges and two staff
members in both Juneau and Anchorage. Lots of the work is done
telephonically. Most of the complex case hearings occur in
Anchorage and they travel when necessary.
1:59:30 PM
CHAIR FRENCH found no further questions and solicited a motion.
SENATOR THERRIAULT moved to forward the name Terri Thurbon to
the full body for consideration. There being no objection, it
was so ordered.
1:59:56 PM to 2:01 at ease for paper work.
SJR 3-FIREARMS IN NATIONAL PARK
2:01:02 PM
CHAIR FRENCH announced the consideration of SJR 3.
SENATOR THERRIAULT, Sponsor of SJR 3, stated that the resolution
supports a Bush administration policy decision and urges the
Obama administration to continue and perhaps expand support of
that policy. He continued:
It is the intent of SJR 3 to show appreciation for the
change in National Park policy that now allows park
users to carry the firearms they need for personal
protection in National Parks.
Alaskans, who have in their state over 75 percent of
the National Park system, understand how important it
is to have personal protection in the wilderness.
Specifically in the parks in Alaska I am more
concerned about protection against the wild critters
that live there. Whereas in other areas of country
protection of the National Park system may be from
other people who are in the park system. The bill
affirms that progress has been made to allow the
carrying of firearms under the previous administration
and encourages the new one to continue that.
Whether it's for bear protection, obtaining food in a
survival situation, or signaling for assistance when
needed, firearms have been on the hips and in the arms
of many Alaskans since the frontier was first
explored. This is just to encourage that the current
policy decision continues.
2:03:02 PM
CHAIR FRENCH observed that his bill packet has only the first
page of the "FAQ-Interior Firearms Policy Update" and the last
question doesn't have an answer. He asked Mr. Stancliff to
answer the question "Won't visitors and wildlife be endangered
by allowing concealed firearms in parks and refuges?"
DAVE STANCLIFF, Staff to Senator Therriault, replied there are
varying opinions on whether people should be able to carry
firearms in national parks. As the sponsor indicated, his
research revealed some tragedies that probably would not have
occurred had people been able to defend themselves against
wildlife. He also discovered that the ten most dangerous parks
are on the list because of dangers associated with drug
trafficking and assaults that have happened. So there are two
groups of people wanting protection for two different reasons
and the policy is under legal challenge.
The Brady group filed suit on December 30, 2008 after talking
with the new Interior Department appointee. Mr. Salazar
expressed strong support for Second Amendment rights and said he
is very comfortable with firearms in the hands of law abiding
citizens. He promised to look at the procedure to ensure that it
is being followed correctly, but gave no indication he would try
to reverse or politically disrupt the decision. Because the
Brady group has filed suit, the resolution is very timely.
MR. STANCLIFF described "guns in national parks" as a
philosophical issue and said that the pushback in Alaska is
significantly less than in the Lower 48. He referred to the two
young women who were lost in Denali Park last summer and said
they had no way of signaling, protecting themselves or obtaining
food. "It's a policy question, but as Alaskans I think we can
see both sides of it fairly clearly," he concluded.
CHAIR FRENCH asked if any Alaska parks are on the most dangerous
list.
MR. STANCLIFF said no; the ones that are listed are dangerous
because of people. The sponsor brought to his attention that
some of the most dangerous law enforcement assignments are to
park rangers in national parks.
SENATOR THERRIAULT clarified that the FAQ sheet was included in
the packet to answer specific questions about the issue of
"similar state lands." He isn't sure what the answer was to the
last question on the page.
CHAIR FRENCH said it was more of a rhetorical question than
anything else, but he would add that when he visited the Brooks
Lodge at Katmai he was stunned to learn that you couldn't carry
a firearm to protect yourself against bears. After several
visits he's changed his mind and believes it's really quite safe
if you obey certain rules. Referring to the Kenai and Russian
rivers, he said that Alaskans really have figured how and when
to use guns and when not to.
MR. STANCLIFF said it's important to note that the policy
doesn't apply to national parks in states that don't allow
individuals to carry concealed firearms. The rational was that
the federal government was looking carefully at what individual
states wanted.
CHAIR FRENCH questioned whether states could apply different
rules to different parks in the same state. For example, carve
out one rule for the Brooks Lodge [Katmai] and another for
Denali or Gates of the Arctic. In some places you may more
legitimately need a firearm to defend yourself or signal for
help.
2:11:05 PM
SENATOR ELTON said his sense of the purpose of a resolution is
to ask for a change. He questioned sending a resolution that
essentially says good job, keep it up.
SENATOR THERRIAULT responded there's an effort to undo the
federal regulation and the resolution basically puts the State
of Alaska on record saying it supports the Bush administration
policy decision and it conforms to Alaska law. Responding to the
Chair's question, he said the federal regulation allows a state
to carve out a particular park, just as Alaska allows concealed
carry, but not in a women's shelter or a court building. "We're
basically saying we support the step that was taken just
recently and we're encouraging the new administration to resist
the attempts to undo it. And to potentially even consider …
letting people carry openly in the parks where states allow
that."
2:14:11 PM
SENATOR ELTON suggested that with the exception of extending it
to non-concealed, the resolution is superfluous. He asked if
it's permissible now or if it has been permissible to carry a
rifle in a national park.
MR. STANCLIFF relayed a personal experience he had in Denali
Park. "The answer is you cannot be packing a rife in sight. If
you have a firearm in a park, they're going to probably make you
take the bolt out or break it down and put it in a location away
from where others will see it and maybe where you could avail
yourself to using it."
SENATOR ELTON recapped that it's okay to have a rifle in a park
so long as it's unloaded and the bolt has been removed.
MR. STANCLIFF clarified that he's referring to parks where
hunting isn't allowed, but he doesn't know anyone who would take
their rifle or shotgun into a park for fear of having it
confiscated.
SENATOR ELTON said so you can only carry a concealed firearm and
that's probably not possible with a rifle.
MR. STANCLIFF agreed it would be very difficult.
2:17:25 PM
SENATOR THERRIAULT added that Alaskans are generally supportive
of the change the federal government made and so it's
appropriate for the state government to weigh in and encourage
the new administration not to undo it. Also, the policy is very
similar to what the BLM and the U.S. Forest Service have on
carrying firearms.
SENATOR ELTON said he appreciates the clarification and he would
just note that the U.S. Forest Service and BLM allow hunting
while national parks do not.
2:18:39 PM
SALLY GIBERT, ANILCA Coordinator, Office of Project Management,
Department of Natural Resources, clarified that all the national
park preserves and all the national parks that were created
under ANILCA are open to hunting. Therefore they are open to
carrying firearms. "This resolution as well as the original Bush
administration regulations only apply to the pre-statehood pre-
ANILCA parks, which include basically the old core of Mount
McKinley National Park, old Glacier Bay, old Katmai and Sitka
and Klondike."
CHAIR FRENCH said so under the new regulations I can take a gun
climbing and shoot avalanches.
MS. GIBERT said yes as long as they're concealed.
CHAIR FRENCH asked her to clarify that the state or park
director could carve out a section of the river near the Brooks
Lodge as a no gun zone.
MS. GIBERT said yes the federal government defers to the state;
the park service can go along with whatever the state allows.
The same with the McNeil River, she said.
2:20:43 PM
CHAIR FRENCH announced he would hold the resolution until the
next meeting [Wednesday].
2:20:56 PM
CHAIR FRENCH adjourned the Senate Judiciary Standing Committee
meeting at 2:20 pm.
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