Legislature(1999 - 2000)
02/22/1999 01:33 PM Senate JUD
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE
February 22, 1999
1:33 p.m.
MEMBERS PRESENT
Senator Rick Halford, Vice-Chairman
Senator Dave Donley
Senator John Torgerson
Senator Johnny Ellis
MEMBERS ABSENT
Senator Robin Taylor, Chairman
COMMITTEE CALENDAR
SENATE BILL NO. 11
"An Act relating to good time credits for prisoners serving
sentences of imprisonment for certain murders, attempted murders,
or conspiracies to commit murder."
-MOVED CSSB 11(JUD) OUT OF COMMITTEE
SENATE BILL NO. 24
"An Act relating to the adoption, amendment, repeal, legislative
review, and judicial review of regulations; and amending Rule 202,
Alaska Rules of Appellate Procedure."
-MOVED CSSB 24(JUD) OUT OF COMMITTEE
PREVIOUS SENATE COMMITTEE ACTION
SB 11 - See Judiciary Committee minutes dated 2-17-99 and 2-22-99.
SB 24 - See Judiciary minutes dated 1-27-99, 2-8-99 and 2-22-99.
WITNESS REGISTER
Ms. Deborah Behr
Assistant Attorney General
Legislation and Regulations Division
Department of Law
PO Box 110300
Juneau, AK 99801-0300
POSITION STATEMENT: Opposed SB 24
Ms. Teresa Williams
Assistant Attorney General
Fair Business Practices Section
Department of Law
1031 West 4th Ave. suite 200
Anchorage, AK 99501-1994
POSITION STATEMENT: Opposed SB 24
ACTION NARRATIVE
TAPE 99-11, SIDE A
Number 001
VICE-CHAIRMAN RICK HALFORD called the Judiciary Committee meeting
to order at 1:33 and announced SB 11 would be the first order of
business.
SB 11 - PRISON TIME CREDITS FOR MURDERERS
SENATOR DAVE DONLEY, prime sponsor of SB 11, reminded the committee
that SB 11 reduces the amount of good time sentence reduction a
person can be awarded. The original version of the bill included a
reduction for crimes other than first and second degree murder, but
the proposed committee substitute limits the application of the
good time reduction to people convicted of first and second degree
murder only. SENATOR DONLEY suggested there is a distinction
between people who attempt and/or conspire to commit murder and
those who actually do it.
Number 030
SENATOR DONLEY moved the adoption of CSSB 11(JUD). Without
objection, the committee substitute was adopted.
SENATOR DONLEY stated the committee had already taken public
testimony on the bill and there was no one else wishing to testify
at this time.
SENATOR DONLEY moved CSSB 11(JUD) from committee with individual
recommendations and accompanying fiscal notes. Without objection,
it was so ordered, and CSSB 11(JUD) moved from committee.
VICE-CHAIRMAN HALFORD indicated SB 24 would be the next order of
business.
SB 24-REGULATIONS: ADOPTION & JUDICIAL REVIEW
SENATOR DONLEY, prime sponsor of SB 24, reminded the committee they
had already heard this bill three times. He indicated the
Administration offered to work with his staff on this bill and had,
although they are still not happy with it. He presented a new work
draft that incorporates some of the changes proposed in the last
hearing. The work draft deletes the section relating to the
Administrative Regulation Review Committee (ARRC), as what it
encompassed is already within the powers of the ARRC.
SENATOR DONLEY also stated that people cannot use a deficient
cost/benefit analysis or inadequate public notification to halt or
negate the implementation of new regulations.
Number 090
SENATOR DONLEY moved the adoption of CSSB 24(JUD). Without
objection, the committee substitute was adopted.
SENATOR DONLEY explained he also had an amendment to the committee
substitute. The amendment excludes the Board of Fisheries, the
Board of Game, and the Commercial Fisheries Limited Entry
Commission. SENATOR DONLEY said these groups were excluded from the
original bill and were never meant to be included.
SENATOR DONLEY moved amendment #1, which read:
Page 3, Line 2; Amend subsection (g) to read:
(g) In this section,
(1) "adopting state agency head" means the governor if
the state agency is the Office of the Governor, or
the commissioner of the department within which the
state agency is located;
(2) "state agency" does not include the Board of
Fisheries, the Board of Game, or the Alaska
Commercial Fisheries Entry Commission.
SENATOR TORGERSON objected, to ask about the section dealing with
emergency regulations. SENATOR DONLEY replied there is a general
exception for emergency requirements in section 10. SENATOR HALFORD
asked if the bill contained the current standard for emergency
regulations and SENATOR DONLEY replied that SB 24 adopts a new
standard, but exempts emergency regulations. SENATOR HALFORD
clarified that the time line for emergency regulations maintains
what is in current law. SENATOR DONLEY said it does, and he was not
trying to affect the emergency regulations process.
Number 140
SENATOR TORGERSON removed his objection. And so, without objection,
Amendment #1 was adopted.
MS. DEBORAH BEHR, Regulations Attorney for Alaska and an Assistant
Attorney General for the Department of Law, confirmed she had met
with SENATOR DONLEY and his staff to work on SB 24 and they still
disagree about it. She proposed that the fiscal notes associated
with this new committee substitute will be higher due to the new
functions added into the bill.
MS. BEHR said SB 24 dramatically changes the regulations process
and the administrative adjudication process, and throws out 40
years of case law, opening the state to more litigation. MS. BEHR
proposed that the bill will result in a less stable and predictable
business environment. The bill changes the required standard of a
regulation from "reasonably necessary" to "clearly necessary" and
will likely result in new court tests to many regulations, even
those previously seen as routine and not worth a court test. MS.
BEHR stated, "I frankly don't know what the court is going to do
with routine regulations of state government."
MS. BEHR explained the bill adds key terms with no definitions,
another area open to litigation with little clear legislative
intent. She said the terms "cost," "benefit," and "clearly
necessary" are examples of undefined terms. She stated the bill
will set up an environment for litigation that is not helpful for
business.
MS. BEHR remarked the bill enlarges the existing bureaucracy in a
time of budget shortages, and creates additional notice
requirements and public meetings and costs associated with them.
According to MS. BEHR, SB 24 would require another round of public
comment for any change to a regulation, even changes to which all
parties agree.
MS. BEHR reported SB 24 has unintended impacts on health and safety
procedures and will require, for example, the Department of Public
Safety to show a cost/benefit analysis supporting sex offender
registration. MS. BEHR concluded, "I'm not sure that that's
something that you necessarily want to spend public money to do."
MS. BEHR stated there is also a problem with incomplete exemptions
throughout the bill. She mentioned that the Department of
Corrections is exempted from certain sections of the bill but
included in others. She suggested this might lead to unhappy
prisoners "using this to get him/herself out of a situation." MS.
BEHR insisted that, "The bottom line is that this bill is a handy
target for litigation and I'm not sure this is the way we want to
go . . . "
Number 244
MS. BEHR reviewed the changes made in the new version of the bill.
First, section 2 changes the standard regulations must meet from
"reasonably necessary" to "clearly necessary." She said, in many
cases, this standard will be hard to meet in a court challenge and
could result in the court voiding regulations that are reasonable.
Next, section 3 mandates that new regulations must not change the
intent of the statute they reference. MS. BEHR expressed concern
that the legislative intent behind statutes is difficult to
interpret, especially when it regards things such as new technology
not envisioned at the time of the passage of the statute. Under SB
24, MS. BEHR is not certain how this type of thing would be
addressed. She said this is particularly important to business,
with the constant evolution of business technology. She
acknowledged the burden is on the person challenging the statute,
but remarked, "I don't know what the court would do with a statute
when it clearly could not have been the intent of the Legislature,
because it didn't exist."
MS. BEHR suggested possible solutions to the problems that section
3 attempts to address might include tighter statutes, a better
paper record of legislative intent, and a more active
Administrative Regulation Review Committee (ARRC).
Another concern expressed by MS. BEHR regarded the cost/benefit
analysis required by section 4 of SB 24, and its potential impact
on business. She maintained that cost and benefits are difficult to
measure in certain instances and this bill will open the State up
to litigation. MS. BEHR also expressed concern that this bill might
prevent a commissioner from privatizing any state services.
SENATOR HALFORD asked if a cost/benefit analysis would have to be
done for "regulating of what the statute requires, or for a
particular twist in the regulation . . . clearly the statute is
self-fulfilling on it's face." MS. BEHR agreed, but said details
would be subject to a cost/benefit analysis. She suggested the
cost/benefit requirement be reserved for large projects only, and
although SB 24 exempts small projects, it still encompasses
"middle-of-the-road state government projects." MS. BEHR also
proposed exempting health and safety requirements from SB 24.
Number 320
SENATOR TORGERSON remarked that anyone listening to MS. BEHR might
think nothing could ever happen under SB 24. While in fact, what
would happen is departments would have to come to the Legislature
and request legislation. MS. BEHR agreed, but said the Legislature
is not always in session to deal with things that arise. SENATOR
TORGERSON replied, "So you put it off a year 'til the Legislature
has an opportunity to deal with it . . . a lot of these things the
Legislature should deal with, I mean, that's half of the problem we
have here . . . " SENATOR HALFORD agreed.
MS. BEHR continued her analysis of SB 24. Section 8 requires
another round of public comment if there is significant change in
the substance of a regulation. This seems reasonable, but MS. BEHR
reported that, typically, these changes originate from public
comment or from legal concerns of the Department of Law. As
written, the bill contains no limit to the number of costly rounds
of public comment that would occur. MS. BEHR emphasized the costs
of public comment hearings as well as the expense of additional
meetings of boards and Commissions to consider public comments. MS.
BEHR expressed concern that seasonal regulations might be delayed
and suggested the committee give a waiver to small businesses. She
also suggested the ARRC committee be more active, departments put
regulations and proposals on the Internet, and public comment be
limited to one round.
Number 394
SENATOR TORGERSON asked, in the case of a seasonal time crunch,
what would prevent "filing the reg they have and then creating
another reg for the new, great idea that came in so it wouldn't
shut down the construction season." MS. BEHR replied this may not
work in all situations and, "I would hate to have a commissioner
adopt a regulation that he thought was not appropriate . . . I
don't necessarily think that is a good idea."
SENATOR DONLEY commented that he does not really want commissioners
incorporating last minute "great ideas." If such ideas are
necessary, they can be implemented by emergency regulation and
finalized later.
Number 420
DEBORAH BEHR explained that section 12 of SB 24 is new and requires
that new regulations be adopted within two years of the passage of
the enabling statute. MS. BEHR contended that two years may not be
appropriate in exceptional cases, and this bill provides no "escape
hatch" for responding by regulation to court decisions asking for
definitions of key concepts in contested statutes. SENATOR HALFORD
implied that the court specifically allowed that in its decision.
MS. BEHR noted, "The courts are reluctant to legislate." SENATOR
HALFORD retorted, "They are?"
Number 455
SENATOR DONLEY said the Legislature can file a writ of mandamus to
force the adoption of new regulations. MS. BEHR insisted this will
not work in all situations and could be inadequate in cases where
the statute has been on the books for more than two years without
the adoption of regulations. SENATOR DONLEY said this is a new,
different argument and he would work on addressing this concern in
the process.
DEBORAH BEHR explained section 13 changes the presumption of
validity of a regulation and says a court cannot uphold a
regulation unless it is the least intrusive on rights of property
or it serves a substantial state interest. The bill contains no
definition of "substantial state interest," so MS. BEHR said the
court "will have to figure out what that means." She suggested one
problem that might arise from this standard is whether to use the
best scientific way to do something versus the least intrusive way.
The substantial state interest standard, along with the presumption
of invalidity, will make it difficult for even reasonable
approaches that are good public policy to meet this standard. MS.
BEHR said although the bill prohibits a temporary restraining order
or an injunction, a person could still get a declaratory injunction
under SB 24.
Number 504
MS. TERESA WILLIAMS, representing the Department of Law, addressed
the issue of administrative adjudication. MS. WILLIAMS said now,
when a challenge to a regulation is brought under the
Administrative Procedures Act (APA), the Governor's office appoints
a hearing officer. Generally, a board or commission is the final
decision maker, and the hearing officer only hears the case and
issues a proposed decision. The board or commission can accept the
decision, remand it, or call for the record and make its own
decision. SB 24 institutes a 60-day deadline on the issuance of a
final decision in such cases and, according to MS. WILLIAMS, "that
time line is impossible . . . even if the person making the final
decision is a single person. It is clearly untenable for a board or
commission."
MS. WILLIAMS said hearing officers often request that the parties
involved submit proposed findings and conclusions, or send drafts
of proposed decisions to the parties for review and rebuttal. She
said this process enhances the final decision but, due to the fact
that hearing officers are private attorneys with their own case
loads, this process takes time. To convene a public meeting of a
Board or Commission, assemble a quorum of private citizens, give
advance public notice, and give members time to deliberate over the
information presented in the case could not happen.
MS. WILLIAMS also argued that, though most hearings are completed
within two years, those delayed are delayed mostly at the request
of the respondent. Another reason for lengthy delays is parallel
criminal or civil proceedings. In cases such as this, the
Commission often relies on the findings from the case for its own
decision and saves a lot of its own time and money. MS. WILLIAMS
said these problems and others keep some administrative proceedings
from being completed within two, or even four years and would
require the issue to be taken up again from the beginning at the
Supreme Court level.
Number 592
MS. WILLIAMS also expressed concern that SB 24 "really takes away
the final decision making authority from the department and gives
it to this single hearing officer . . . "
TAPE 99-11, SIDE B
Number 594
MS. WILLIAMS asserted the process proposed in SB 24 gives too much
power to hearing officers with their own agenda, and with no public
accountability. She argued that transferring these cases back to
the court will end up taking longer as the process starts over and
the court is educated about any technical aspects of a particular
case. In conclusion, MS. WILLIAMS said this legislation seems to be
directed at a particular problem and is "way too wide in scope to
be effective." She said the APA currently allows for court
intervention to compel agency action.
SENATOR DONLEY asked why agencies cannot set time lines for hearing
officers. MS. WILLIAMS said that is done, but the hearing officers
do not always comply. The governor's office is advised when a
hearing officer fails to meet a deadline.
SENATOR TORGERSON asked the normal time line for the adjudication
process. MS. WILLIAMS replied it averages about 18 months for a
straightforward case. SENATOR TORGERSON suggested if the hearing
officers were not paid unless they kept their time line, and if
respondents were held to the same standard, there would be fewer
delays. MS. WILLIAMS commented, "we have refused to pay hearing
officers who have gone past the deadline," but there is no
incentive in SB 24 for quick action by the respondents.
Number 514
SENATOR TORGERSON said it would be a matter of a simple amendment
to exempt cases that have ongoing parallel court action. SENATOR
DONLEY suggested they could change the bill to impose the time
limit on the proposed decision, rather than the final decision and
add thirty days for the final decision. TERESA WILLIAMS said the
problem with that is Boards and Commissions cannot usually convene
within thirty days. SENATOR DONLEY said he could insert an
exemption for Boards and Commissions.
SENATOR HALFORD commented there are 21 fiscal notes included with
this bill and it appears that SENATOR DONLEY "has reached out and
touched someone." He concluded that the goal is right on target,
though some exemptions might make sense.
Number 475
SENATOR DONLEY said he would like to continue to work with the
Administration on this bill.
SENATOR DONLEY moved CSSB 24(JUD) from committee with individual
recommendations and the accompanying fiscal notes.
SENATOR ELLIS objected, saying the bill needs more work that should
be done in the Judiciary Committee, not the Finance Committee.
The roll was taken on the motion. Voting yea: SENATOR DONLEY,
SENATOR HALFORD and SENATOR TORGERSON. Voting nay: SENATOR ELLIS,
and so CSSB 24(JUD) moved from committee.
With nothing else to come before the committee, VICE-CHAIRMAN
HALFORD adjourned at 2:33 p.m.
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