HB 214 - PRISON LITIGATION Number 0624 CHAIRMAN KOTT announced that the next item of business would be House Bill No. 214, "An Act relating to litigation involving correctional facilities; and amending Rules 59(f), 60(b), 62, and 65, Alaska Rules of Civil Procedure." The first hearing had been the previous day, and some amendments had been adopted. He noted that there was a new proposed committee substitute (CS). Number 0643 REPRESENTATIVE ELDON MULDER, Alaska State Legislature, sponsor, pointed out that he had been awaiting the arrival of Mr. Luckhaupt, drafter, because of the belief that there was an amendment, discussed the previous day by Representative Croft, yet to be adopted. However, Mr. Luckhaupt had incorporated that amendment into the new proposed CS. Number 0686 REPRESENTATIVE ROKEBERG made a motion to adopt the proposed CS, version 1-LS0562\I, Luckhaupt, 4/30/99, as a work draft. There being no objection, Version I was before the committee. CHAIRMAN KOTT asked Mr. Luckhaupt to go through the changes. Number 0718 GERALD LUCKHAUPT, Attorney, Legislative Legal and Research Services Legislative Affairs Agency, informed members that Representative Croft's amendment, which put a time limit on consent decrees that didn't have to comply with the provisions of this Act, can be found on page 4, lines 10 and 11. He noted that the sentence that begins on line 8, continuing to the comma on line 10, basically existed the previous day. Added is, "provided the prospective relief does not continue for a period of more than two years." He stated his understanding that an outside time limit of two years is desired. MR. LUCKHAUPT pointed out other changes. In response to one amendment proposed the previous day by the Department of Law, regarding motions to modify, on page 3, line 30, he had added "modify or" [stated by Mr. Luckhaupt as "modify or terminate"]. To make that section work, he also had added, on page 4, line 4, the words "modification or". In addition, he had changed "prison" to "correctional facility" wherever it appeared in the bill. Number 0842 REPRESENTATIVE CROFT referred to page 4, lines 10 and 11. He noted that a consent decree would only last two years. He said he'd thought the mechanism would be that it couldn't continue unless, at the end of two years, the court looked at it and said there are still ongoing, current - not prospective - statutory or constitutional violations. MR. LUCKHAUPT replied that he'd had some trouble figuring out how to do that. It is the concept in the bill for consent decrees and prospective relief ordered by a court when the court finds a present violation. However, he pointed out, a court cannot impose injunctive relief until it finds a current violation; so, that is rather a given. MR. LUCKHAUPT said this was allowing the state to agree to injunctive relief without a current violation, as he understood it, in order to avoid litigation costs, or something along that line. He himself was a bit confused, he said, about how to tie this in to the "requirements that apply to all new actions that are filed, and existing actions on the effective date of the Act, if those findings weren't made to begin with, and we agreed to the imposition without any of those findings being made." Mr. Luckhaupt suggested they could attempt to say that the court can continue it, if the court makes those findings. He noted that Mr. Guaneli was shaking his head. Number 0991 DEAN GUANELI, Chief Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law, suggested that Representative Croft had accurately characterized it the previous day: It would terminate in two years unless the court continued the order after making certain findings. Mr. Guaneli noted that it now says, "provided that the prospective relief does not continue for a period of more than two years". MR. GUANELI suggested adding, on page 4, line 11, after the phrase "more than two years", the language, "unless the plaintiff proves, and the court orders, that continuation of the relief is appropriate under the standards set out in subsection (c)." He pointed out that subsection (c) is the standard that allows the court to continue relief after the state has moved to terminate it after two years. He said that gets towards Representative Croft's concern, although he would defer to Mr. Luckhaupt as to whether it is absolutely correct. Number 1100 REPRESENTATIVE CROFT asked whether it would be (c) or (a) for the standards. MR. GUANELI answered that subsection (c) sets out the standards for continuation of a court order. If it presumes a court order has been in effect for two years, and the state has moved to terminate it, that allows the court to continue it, under certain standards. He noted that subsection (c) refers back to (a). However, (c) requires that the plaintiff prove a current violation of a state or federal right. Number 1148 REPRESENTATIVE KERTTULA pointed out that it is a consent decree. She asked whether it wouldn't be better to say, "unless the court finds," rather than limiting it to, "unless the plaintiff proves," so that either party could bring it in. She noted that the language in (c) says "unless the court finds." MR. GUANELI replied that he doesn't have a problem with that. He added, "I think, then, the burden of proof falls under the ordinary rules of court; in general, in a civil action, a plaintiff has to prove a case." Number 1201 REPRESENTATIVE GREEN asked whether it would say, "unless the court finds and orders". MR. GUANELI said he thinks that would work. Number 1219 REPRESENTATIVE ROKEBERG referred to the definition on page 5, lines 14 and 15, which read, "(5) 'prospective relief' means all relief other than compensatory monetary damages". He asked if that is a general legal definition, pointing out that, to him, "prospective" means "future." In addition, for the new amendment, they had discussed anticipating a problem. He asked if the word "prospective" relates to the timing and would in any way negate the ability to enter into an agreement. Number 1279 MR. GUANELI agreed that "prospective" tends to refer to something that applies in the future. He said he believes that the intent was to be as broad as possible, however, to include all relief that a court could order, unless the court was going to order monetary damages, which don't really apply in the future. He suggested it may also be based upon definitions in the federal law, trying to be as broad as possible. He noted that in a consent decree situation, the court doesn't have to make a finding; in fact, the state sometimes would rather the court not make a finding when it has been in violation of the constitution. He restated that prospective relief allows them to agree to relief that would accrue in the future, which is, he believes, what they want it to do. Number 1406 MR. LUCKHAUPT added that the definition of "prospective relief" here refers to all relief, and then "relief" is defined below that to include any legal or equitable remedies. REPRESENTATIVE ROKEBERG reiterated his concern that it is different from the normal definition. MR. LUCKHAUPT replied that he himself wouldn't say that. He agrees with Mr. Guaneli that this language comes from the federal Prison Litigation Reform Act (PLRA), he added. In a civil action for damages, there is a judgment executed, which is the end of the case. However, other types of relief work into the future, including injunctions and other equitable relief, as well as some specialized legal forms of relief. If a current violation is found, the court could say that certain types of exercise must be provided, for example, as the U.S. Supreme Court requires at least 15 minutes a day of exercise for all prisoners; the court enjoins the state from not providing that. It is an example of prospective relief that operates in the future, as opposed to a prisoner's suing for exercise that wasn't provided for the last year, with a resulting monetary award. MR. LUCKHAUPT pointed out that to impose prospective relief, a current violation must be found of a constitutional or statutory right. However, Mr. Guaneli's amendment the previous day would allow a court to impose the prospective relief without that finding, in response to an agreement with the state, and then the limitation would come in that they are currently discussing. Number 1561 REPRESENTATIVE MULDER requested further discussion of the language on page 3, subsection (d), which began, "(d) A defendant may not file a motion to modify or terminate under (c) of this section until". He said disagreement may exist in relation to the fact that they are now limited in the ability to not only terminate but also to modify a court order. He asked that both Mr. Luckhaupt and Mr. Guaneli address the issue. Number 1611 MR. LUCKHAUPT explained that the concern arose regarding whether the state should be able to come in six months or a year after relief had been ordered. He cited Cleary as an example where the judge started imposing fines, then sent prisoners off to Arizona and found alternative ways to house the prisoners in order to exceed the population caps. Mr. Luckhaupt suggested that the legislature might believe it wise that the state could come in and say, "Hey, we corrected this problem. ... We've had an intervening legislative session. The ... finance committees and the legislature have provided funds to alleviate this constitutional concern. We don't want the court overseeing what we're doing anymore with this, or at least some portion of the remedy." MR. LUCKHAUPT pointed out that some remedies may be on the small side, such as saying the state won't open prisoners' mail, for instance. For those, the remedy would be easy, and the state would want to request that the court not impose those burdens anymore. Mr. Luckhaupt told members: That can't be done now. That was able to be done on the bill before this amendment was added yesterday. And, again, this is a provision that's not in the federal PLRA. ... We've discussed it at some length, and it's, I think, something Mr. Guaneli believes is necessary, again, to provide the administration with as much leeway and opportunity to negotiate with potential plaintiffs as they can. ... But it also, potentially, rests a greater burden on the legislature when we enact this, where the legislature is impliedly saying that "you can do this, and ... we'll abide by what you decide." And the legislature is impliedly saying that we're going to go ahead and fund whatever you agree to. And that maybe is a little downside to doing that. I brought the issue up with Representative Mulder, and I think he just basically wants the Department of Law to ... put on the record what their feelings are on this, and what the justification is. REPRESENTATIVE MULDER nodded in assent. Number 1757 MR. GUANELI advised members that the bill now says, basically, that if a court finds a violation of the constitution and issues an order, or if the state enters into a consent decree, that will last a period of two years. After that, the plaintiff has to come back and prove that the state is still in violation of the constitution, if the plaintiff wants that court order to continue. MR. GUANELI said he believes that some federal provisions also have a two-year period. But in Alaska it makes sense, he stated, because that is a couple of budget cycles, or one legislature. After two years, one can almost presume there will be some changed conditions in the state's budgetary situation and, certainly, in the executive branch departments. MR. GUANELI suggested that it flies in the face of what they are trying to structure here, however, to say that the state could come in and get 90 percent or 95 percent of the court order set aside in six months. He believes that is tied not only to preserving executive and legislative flexibility, but also to giving plaintiffs and judges some certainty about the time period during which the order will remain in effect. He stated his belief that this bill was tailored to really reflect the realities in Alaska. MR. GUANELI emphasized the importance of how the Alaska Supreme Court will interpret this. He said the federal courts have pretty uniformly upheld all the major aspects of the federal PLRA. However, the Alaska courts chart their own course, and they are trying to fashion legislation that will be upheld by the Alaska Supreme Court. He added, "The worst thing that I think could happen is if ... we pass something that really is too limited, and we're all counting on, ... a year from now, or a year and a half from now, getting out from under the Cleary case, and we're thwarted by the courts because they say that this was too restrictive." MR. GUANELI advised members that he believes this two-year limitation is an appropriate period of time - whether it applies to a part of an order or the entire order - for a court order to be in effect after the state is found to have violated the constitution, or if the state has agreed to a consent decree. He also believes that it should apply to all parts of the order. He concluded, "That's the basis for it: We want something that's going to be upheld by the courts, and I think we would be very nervous about moving to modify any significant part of an order before that two-year period, without running some risk that the court's going to shoot us down." Number 1908 REPRESENTATIVE MULDER asked Mr. Guaneli whether the department could move for a modification under Rule 60(b) of the Alaska Rules of Civil Procedure. MR. GUANELI replied that Civil Rule 60(b) can be used at any time by the state to try to get out from any court order. However, part of the reason why this legislation is needed is that it hasn't been a very effective remedy in Alaska or the rest of the country. Number 1941 REPRESENTATIVE KERTTULA asked, "What are your rights to modify under the Cleary order right now?" MR. GUANELI responded that a provision in the Cleary settlement itself says that if there are significant changed conditions, either party can come back to court and ask that it be modified. Essentially, it is the same standard that exists under Civil Rule 60(b). He noted that Rule 60(b) has a number of provisions for fraud or mistake, for instance, but there is also a catch-all to ask to be let out for any other reason. Mr. Guaneli concluded, "That's what we'd be going under, sort of this catch-all provision in 60(b). It's not very effective, it's restrictively interpreted by the courts, and it just doesn't work very well." Number 1983 REPRESENTATIVE KERTTULA inquired, "Have you brought motions to modify under Cleary, and have they been successful?" MR. GUANELI replied that the state has brought motions to modify Cleary in specific instances, usually relating to the population caps. Provisions in Cleary specify a certain inmate-to-staff ratio, certain programs and things like that, and certain square footage standards. In some institutions, the square footage has been increased, with added cells or added dorms, or there has been a staff increase. When that happens, they go back to the court to ask that the cap be raised a little. "Those are the kinds of things that we have asked the court to modify the judgment, and so far, we've been successful in those," Mr. Guaneli concluded. Number 2030 REPRESENTATIVE KERTTULA asked if Mr. Guaneli or someone from the Department of Corrections (DOC) had the answer to her previous day's question about population limits. MR. GUANELI said he doesn't have the numbers at hand, but that Mr. Cooper from the DOC, who was present, was well-versed about that and what the impacts would be on moving any large number of prisoners from Arizona. Number 2059 REPRESENTATIVE ROKEBERG remarked that he isn't sure he understands subsection (f) on page 4 in light of this new amendment. He asked whether it is consistent. MR. GUANELI clarified that a motion to modify or terminate would require the plaintiffs to come in and prove that unconstitutional conditions still are occurring. Subsection (f) says the court shall promptly rule on the motion, and is, he believes, an attempt to restrict the court's ability to prolong its ruling. Number 2130 REPRESENTATIVE ROKEBERG referred to page 4, lines 6 and 7. He stated his understanding that subparagraph (3) basically is a one-year standstill relating to Cleary before going to court. MR. GUANELI explained, "Certainly, the department wants to be in the best position it can be in, when it moves to terminate. Even though we believe the plaintiffs bear a fairly heavy burden of proving there are ... unconstitutional conditions, and we don't believe that there are, ... the department wants a period of time, so it can be sure that it's in the best position to move for that relief." MR. GUANELI pointed out that this is new legislation, changing the landscape of the Cleary case. To be fair to the plaintiffs, they need to provide notice, basically, that one year from the effective date of this Act, they will be called upon to prove that there are still unconstitutional conditions. He noted that in at least one federal circuit, when the prisoner plaintiffs were put in that position, the court threw out the limitations on injunctions, saying that the plaintiffs needed adequate time to prepare before being forced to go into court. Therefore, the department believes a one-year "notice" is appropriate, as they want the ultimate arbiter - the supreme court - to uphold whatever decision is made. Number 2219 REPRESENTATIVE ROKEBERG proposed the possibility of a more rapid effective date of July 1, for example, noting the many years that Cleary has been in effect. Number 2259 MR. LUCKHAUPT advised members: The plaintiff isn't going to have to come in after one year under Cleary, necessarily. It just depends upon if the administration decides to file a motion to terminate or modify at the end of that one-year period. So, ... these one-year and two-year periods you're hearing about aren't automatic. The plaintiffs have to come in and have to renew, unless the state decides to actually come into court. ... The administration's got to trust the legislature, to a certain extent, and the legislature has to trust the executive branch that they will put the plaintiffs to the test here. Mr. Guaneli's correct that we tried to tailor this legislation to make sure we meet the requirements of our supreme court and the problems that we sometimes run into in the supreme court. ... And we've actually switched positions around a little as this has progressed. I was a little ... less accommodating of some of the restrictions that were going in the bill earlier, and now, once they've been in, I'm also trying to protect the legislature's interests a little, in regards to maybe the legislature is putting a little too much faith in the executive branch to actually bring some of these actions. MR. LUCKHAUPT said this potentially places the legislature in a little different position. It is similar to legislative approval of large leases or purchases by the executive branch, which was put in after the previous administration's purchase of the "Spam Can" [Court Plaza Building in Juneau], for example, regarding items that will impact the state financially several years into the future. Mr. Luckhaupt noted that these consent decrees have that same potential, especially if the administration doesn't come into court after the end of that one-year or two-year period, and make that move to terminate. "Potentially, these consent decrees can last as long as Cleary has, if that motion is never made," he added. "And I just want to make sure the committee understood that that wasn't automatic." Number 2377 REPRESENTATIVE MULDER said he generally agrees with Mr. Luckhaupt, then added, "The reason I've gone along with the allowance here is it's my understanding, when visiting with Dean [Guaneli], that we've never really made [a] motion to have it dropped totally, because first there were some concerns about whether we were in compliance and, second, to make a motion under Rule 60(b), he felt that we didn't stand a very good chance of winning. So, it was his conclusion that ... with this additional statutory ability that we're granting them, they have far better opportunity to actually win in court, and they would be far more aggressive at actually terminating these consent decrees or court orders in the future." He asked Mr. Guaneli whether that is a fair assessment. MR. GUANELI affirmed that, adding that he certainly appreciates the tension and matters of trust among the branches of government. He stated, "With this kind of legislation, I think that the legislature is in a much better position to legitimately criticize an administration that doesn't take full advantage of this kind ... of legislation. I started out, in my presentation yesterday, saying the Department of Corrections needs the utmost flexibility in dealing with ... its responsibilities. And, as Representative Mulder indicated, ... having to deal with a court monitor who lives in California - and is, in essence, interfering with the operation of state facilities and, in particular, the facility in Arizona - is a problem for the department. ... I think that the intent is to take advantage of the tools that the legislature gives us." Number 2447 REPRESENTATIVE ROKEBERG suggested this bill needs a "hot foot" clause, to ensure that the administration files a timely action when it has the right to do so. TAPE 99-47, SIDE B Number 0001 MR. LUCKHAUPT clarified that he wasn't advocating a particular position. [Comments not on tape because of tape change.] REPRESENTATIVE ROKEBERG said as he understands it, however, these times have been extended, and Mr. Guaneli has counseled the committee about the need for one-year and two-year periods of standstill. There is no guarantee here that the administration will file the appropriate motions and actions at that time, he pointed out. Number 0034 REPRESENTATIVE MULDER responded that he is straddling the fence to ensure that the appropriate attention is given to reality, in terms of trying to adequately fund and manage the prisons, without having a consent decree dictate what is or isn't appropriate. He is trying to balance that against the desire to be successful when this is appealed to the court. To Representative Rokeberg he said, "So, I guess I would argue against that right now, only from the standpoint that if that does become a problem, we can come back in ... and perhaps do the 'hot foot' mechanism that you referred to." Number 0083 REPRESENTATIVE ROKEBERG said he appreciates that, but Mr. Luckhaupt's testimony is that there is an implication of funding. He suggested that it would be ceding their ability as a legislature to appropriate, by giving it over to the monitor in California. Representative Rokeberg declared that without some reporting mechanisms or a tacit agreement, if nothing else, between the legislature and the administration about how to handle this, he was really uncomfortable about it. "Every month is very expensive," he added. "It's a $10-million-a-month nut, plus." Number 0123 REPRESENTATIVE MULDER agreed that is the current situation, adding, "We're paying for the consent decree. This would allow us to basically try and put a time frame or time limit on payment of that consent decree, to try to rectify it and move on. ... Is it a perfect solution? No. Is it an improved solution? Probably. Hopefully." Number 0146 REPRESENTATIVE KERTTULA noted that in working on procedural aspects of peoples' rights to go back to the court, they are up against both due process rights of the parties and separation of powers issues. She said she has a lot of concern whether this bill will make it as it is. She offered the opinion that this is modifying it back, to show that both parties are basically giving up something. She added, "It's definitely not a perfect solution, but without this, you're going to run a greater risk of the court saying, 'You're redoing the whole deal. You had the right to come in and modify. You're changing parties' rights, and it's one-sided.'" REPRESENTATIVE KERTTULA asked Mr. Cooper her question of the previous day about how the state is doing on overcrowding and what the numbers are. Number 0201 ALLEN J. COOPER, Director, Division of Institutions, Department of Corrections, answered that in 1980, there were about 770 prisoners in the system. In the early 1980s, there was the "more tough on crime era," and today there are 4,335 prisoners, a sixfold or 1,031 percent increase. He stated that population drives cost, noting that corrections is looked upon to be the primary employer in the nation by the year 2,000. Although the population leveled off somewhat last year, he projects that there will be 4,500 prisoners by November 1999, an increase of 200 to 300 inmates. MR. COOPER said he believes the legislature recognized the population problem by passing HB 53 the previous year. He stated, "To think we could bring back 800 prisoners from Arizona as a result of this would not be possible. We were looking at ways now to - as Mr. Guaneli indicated - to modify some of our caps and things that we feel, with the resources we have now, ... do it safely, on a continuous basis. We're looking at probably 80-plus beds now. We're trying to go in and work on several ... institutions. But that's kind of where our counts are headed." He said he is thankful that it leveled off this past year, which gave the DOC the ability to start managing with the resources provided by the legislature, "to put us in the posture we are today." MR. COOPER referred to Representative Rokeberg's suggested "hot foot" clause and said, "We have a responsibility, doing Cleary. I've worked for 24 years in the department. I've been with Cleary since 1982." Mr. Cooper said that although there had been a lot of concern about Cleary when it came along, it did several things for them, as well, such as providing some continuity of operations and a good classification system. He emphasized that "population coupled with population" is what has caused today's situation. Number 0333 REPRESENTATIVE KERTTULA requested an example of how the population caps under Cleary apply to one institution. She also asked whether prisoners automatically go elsewhere now, if the levels get high enough. MR. COOPER affirmed that, adding that those in the system call it "chasing caps." He indicated 50 percent of the prisoner population emanates from the Anchorage Bowl. Cook Inlet Pre-Trial is the only overcrowded institution right now, and it has been that way for the past five years. Today, it houses 448 prisoners. Mr. Cooper said he went through that facility last week, and the overcrowding is causing it to fray at the edges. They will be implementing other options to start addressing that next month, he said, including electronic monitoring coupled with another option. MR. COOPER explained that people are transferred from the Cook Inlet Pre-Trial Facility to "Palmer medium" or to Wildwood Correctional Center. Anytime prisoners are moved around continually, he has strong concerns about public safety, and it is an everyday occurrence. Furthermore, it is not cheap, it is hard of staff, and it is difficult to manage that way. Five years ago, the average prisoner's sentence at "Palmer medium" was about ten years, he told members. In contrast, on the Palmer compound today, with 420 beds, the average stay for a prisoner is 37 days. These are unsentenced misdemeanants and unsentenced felons. All but two of the institutions - Spring Creek and Building 10 at Wildwood - contain unsentenced prisoners. Mr. Cooper pointed out that the DOC has ten jails and two correctional centers at this time, which he doesn't believe is healthy. MR. COOPER restated that HB 53 from the previous year will certainly help, as will the resources provided to do the job. He noted that he works closely with Department of Law attorneys. Mr. Cooper pointed out that the court monitor finds the state to be out of compliance with only the following: the need for an industry for females at Hiland, tracking of appeals at Spring Creek and overcrowding. He emphasized how far the state has come from 1982 in this regard. Number 0506 REPRESENTATIVE KERTTULA asked Mr. Cooper if he will continue what he is doing regarding overcrowding, regardless of whether this legislation passes. MR. COOPER affirmed that. Number 0521 CHAIRMAN KOTT asked whether anyone else wished to testify. He noted that there was one amendment yet to be adopted, as discussed earlier, but no quorum. He specified that that language would be inserted on page 4, line 11, after the words "two years," to read, "unless the court finds and orders that continuation of the relief is appropriate under the standards set out in subsection (c)." There now being a quorum, he asked whether there was any objection. There being none, the amendment was adopted. Number 0565 REPRESENTATIVE GREEN made a motion to move from committee CSHB 214, version 1-LS0562\I, Luckhaupt, 4/30/99 [as amended], with individual recommendations and the accompanying indeterminate fiscal note. There being no objection, CSHB 214(JUD) moved from the House Judiciary Standing Committee.