HOUSE BILL NO. 103 An Act requiring an actionable claim against the state to be tried without a jury. REPRESENTATIVE MIKE KELLY, SPONSOR, stated that HB 103 would make a small but important change to the manner in which claims against the State are adjudicated. The doctrine of "sovereign immunity", originally taken from English common law, is familiar within the legal system. The doctrine precludes the institution of a suit against the sovereign [government] without consent. It is intrinsic to the legal system. The Alaska State Constitution addresses the issue of sovereign immunity in Article 2, Sec. 21, when it grants the Legislature sole authority to determine the manner in which suits against the State are tried. Without that addition, the language in Article 1, Sec.16, specifically refers to "common law", presupposes that sovereign immunity is absolute in Alaska. Representative Kelly continued, although HB 103 does change from the current standard of a trial by jury in a claim against the State, it returns to the standard that was in place until 1975. Since that time, there have been a number of cases that have resulted in exorbitant jury awards against the State. HB 103 would accomplish the intent by making a direct statutory change. He urged support of the legislation. 2:17:08 PM HEATH HILYARD, STAFF, REPRESENTATIVE MIKE KELLY, offered to answer questions of the Committee. Co-Chair Meyer inquired if there was concern that a judge would be harsher than a jury. Mr. Hilyard replied that had been considered as a possibility. It has been a long time since there was a trial decision by a judge that there are no statistics available. Representative Kelly interjected that could be the case and might not be inappropriate. He stressed that the bill addresses the "deep pocket" concern of the State and was worried about some jury awards. 2:18:58 PM Representative Weyhrauch defended some of the "deep pocket cases of the State". Representative Kelly noted that there were a number of cases cited. He noted that a constituent who is a retired lawyer requested the bill. Representative Kelly mentioned that historically there have been some outrageous rewards. Representative Weyhrauch asked if the legislation had been geared toward cases in Bethel and Western Alaska and not the ones in the Big Lake fire areas. Representative Kelly responded that his concern was with the smaller ones such as the windsock case. 2:21:50 PM In response to further queries by Representative Weyhrauch, Representative Kelly commented that there are four states that do not allow their state to be sued. GAYLE VOIGHTLANDER, (TESTIFIED VIA TELECONFERENCE), ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF LAW, ANCHORAGE, offered to answer questions of the Committee regarding the Department of Law's fiscal note. Representative Weyhrauch commented on the cases sighted as examples of jury awarding "deep pockets", and inquired how many had actually been paid out. Ms. Voightlander advised that the windsock case continues to be in litigation; the other three have been completed. Representative Weyhrauch referenced the case sighted in the Bethel verdict and asked if there had been a motion to reduce the amount of that verdict. Ms. Voightlander advised in that case, there have been post trail motions. Also, the search and rescue case was appealed and then cross-appealed. The Department of Law asked for large verdicts from the last few years. 2:26:15 PM Vice-Chair Stoltze mentioned an incident in Chugiak in the early 1990's, ultimately, in which that woman received a settlement. He asked how that case would have been affected through the proposed statutory change. Ms. Voightlander explained that case was tried with the State as the defendant. A negotiated settlement amount was determined. If HB 103 had been in effect, a judge rather than the jury of twelve would have deliberated the case. 2:29:26 PM DOUG WOOLIVER, ADMINISTRATIVE ATTORNEY, ALASKA COURT SYSTEM, noted that the Courts anticipate a $16 thousand dollar savings with implementation of the legislation. That amount was determined by figuring out how many jury trials there were in the last five years. There have been approximately 20 cases during that time. He checked all costs associated with those trials, which averaged approximately $4 thousand dollars per trial. 2:31:10 PM Representative Weyhrauch MOVED to ADOPT Amendment #1, adding a new sentence on Page 1, Line 5, "the State may request a jury trial under this subsection". Co-Chair Meyer OBJECTED. Representative Kelly noted that he did not object to the amendment. Co-Chair Meyer WITHDREW his OBJECTION. There being NO further OBJECTION, Amendment #1 was adopted. 2:33:27 PM Representative Kelly MOVED to REPORT CS HB 103 (FIN) out of Committee with individual recommendations and with the accompanying fiscal notes. Representative Croft OBJECTED. Representative Croft commented that he did not like supporting the taking of people's rights away. There is a reason we have a constitutional right to a jury trail. He maintained that the right to take a case before peers and people not employed by the government, is important. The government has gotten so pervasive; it can determinately affect a person's life. Representative Croft thought it would be un-wise to pass the proposed legislation since it goes against our country's history. He reiterated that he did not support the bill. Representative Weyhrauch observed that there is a right in this society to a jury trial. A jury is made up of a broad section of people. He sited a case, which he litigated and which he had requested a jury trial. The case ultimately settled with the jury's verdict against the State. There were fees and costs built into that cost. There are instances in which the State will have to pay; however, within the context of a jury trial, there is an appeal process. The State, currently is immune and cannot award damages against the State. Right now, when a case appears and there is a punitive damage award, the State gets half of that award. He emphasized that sometimes, the State should pay, as there is gross negligence. Sometimes the verdict ends up with the person getting fired. Representative Weyhrauch believed that juried trials usually end up with society benefiting as a whole. He clarified that he does not distrust judges, however, sometimes the State rightfully should pay. 2:40:49 PM Vice-Chair Stoltze pointed out his history and voting record for legal reform measures, however was concerned with the proposed legislation. He stated that he respects the intent but was not comfortable with the concept of "deep pockets". Representative Kelly interjected that the present debate highlights the difficult issue being addressed through the legislation and acknowledged the "heart" of that struggle. He believed that HB 103 was a "good bill" and would save the State money and abuse. 2:44:06 PM A roll call vote was taken on the MOTION to MOVE the bill from Committee. IN FAVOR: Holm, Kelly, Stoltze, Weyhrauch, Foster, Hawker, Meyer, Chenault OPPOSED: Moses, Croft Representative Joule was not present for the vote. The MOTION PASSED (8-2). CS HB 103 (FIN) was reported out of Committee with a "no recommendation" and with fiscal note #1 by the Alaska Court System and fiscal note #2 by the Department of Law. 2:45:11 PM