HOUSE JUDICIARY STANDING COMMITTEE March 29, 1999 1:11 p.m. MEMBERS PRESENT Representative Pete Kott, Chairman Representative Joe Green Representative Norman Rokeberg Representative Jeannette James Representative Lisa Murkowski Representative Eric Croft Representative Beth Kerttula MEMBERS ABSENT All members present COMMITTEE CALENDAR CS FOR SENATE BILL NO. 77(JUD) "An Act prohibiting certain civil actions against firearms or ammunition manufacturers and dealers." - WAIVED CSSB 77(JUD) OUT OF COMMITTEE HOUSE JOINT RESOLUTION NO. 18 Proposing an amendment to the Constitution of the State of Alaska relating to an office of administrative hearings. - HEARD AND HELD; ASSIGNED TO SUBCOMMITTEE * HOUSE BILL NO. 134 "An Act relating to the authority of the Department of Natural Resources to issue citations for certain skiing violations; relating to establishing a bail schedule for certain skiing violations and to procedures for issuing a citation for a skiing violation." - MOVED HB 134 OUT OF COMMITTEE * HOUSE BILL NO. 151 "An Act relating to revocation and reinstatement of the driver's license of a person at least 14 but not yet 21 years of age." - SCHEDULED BUT NOT HEARD * HOUSE BILL NO. 99 "An Act relating to sexual assault and the definitions of 'sexual contact,' 'sexual penetration,' and 'legal guardian' in AS 11." - SCHEDULED BUT NOT HEARD GOVERNOR'S APPOINTMENTS - SCHEDULED BUT NOT HEARD (* First public hearing) PREVIOUS ACTION BILL: SB 77 SHORT TITLE: LIABILITY RELATING TO FIREARMS SPONSOR(S): SENATOR(S) KELLY PETE, Ward, Donley, Taylor, Halford, Green, Miller Jrn-Date Jrn-Page Action 2/18/99 286 (S) READ THE FIRST TIME - REFERRAL(S) 2/18/99 286 (S) JUD, FIN 2/24/99 353 (S) COSPONSOR(S): WARD 3/08/99 (S) JUD AT 1:30 PM 3/08/99 (S) SCHEDULED BUT NOT HEARD 3/12/99 (S) JUD AT 1:30 PM 3/12/99 (S) HEARD AND HELD 3/12/99 (S) MINUTE(JUD) 3/15/99 (S) JUD AT 1:30 PM BELTZ 211 3/15/99 (S) MOVED COMMITTEE SUBSTITUTE (JUD) OUT OF COMMITTEE 3/15/99 (S) MINUTE(JUD) 3/15/99 546 (S) COSPONSOR(S):DONLEY, TAYLOR, HALFORD, 3/15/99 546 (S) GREEN, MILLER 3/16/99 563 (S) JUD RPT COMMITTEE SUBSTITUTE 4DP NEW TITLE 3/16/99 563 (S) DP:TAYLOR, TORGERSON, DONLEY, HALFORD 3/16/99 563 (S) ZERO FISCAL NOTE (COURT) 3/22/99 635 (S) FIN REFERRAL WAIVED 3/23/99 (S) RLS AT 10:50 AM FAHRENKAMP 203 3/23/99 (S) MINUTE(RLS) 3/25/99 681 (S) RULES TO CALENDAR AND 1 OR 3/25/99 3/25/99 684 (S) READ THE SECOND TIME 3/25/99 684 (S) JUD COMMITTEE SUBSTITUTE ADOPTED UNAN CONSENT 3/25/99 684 (S) ADVANCED TO THIRD READING UNAN CONSENT 3/25/99 684 (S) READ THE THIRD TIME CSSB 77(JUD) 3/25/99 685 (S) PASSED Y15 N5 3/25/99 685 (S) ELLIS NOTICE OF RECONSIDERATION 3/26/99 703 (S) RECONSIDERATION NOT TAKEN UP 3/26/99 704 (S) TRANSMITTED TO (H) 3/29/99 597 (H) READ THE FIRST TIME - REFERRAL(S) 3/29/99 598 (H) JUD BILL: HJR 18 SHORT TITLE: CONST. AM: ADMINISTRATIVE HEARINGS SPONSOR(S): REPRESENTATIVES(S) OGAN, Foster, Dyson, Rokeberg Jrn-Date Jrn-Page Action 2/24/99 300 (H) READ THE FIRST TIME - REFERRAL(S) 2/24/99 300 (H) STA, JUD, FIN 2/26/99 328 (H) COSPONSOR(S): FOSTER 3/04/99 (H) STA AT 8:00 AM CAPITOL 102 3/04/99 (H) HEARD AND HELD 3/04/99 (H) MINUTE(STA) 3/05/99 377 (H) COSPONSOR(S): DYSON, ROKEBERG 3/09/99 (H) STA AT 8:00 AM CAPITOL 102 3/09/99 (H) SCHEDULED BUT NOT HEARD 3/16/99 (H) STA AT 8:00 AM CAPITOL 102 3/16/99 (H) MOVED CSHJR 18(STA) OUT OF COMMITTEE 3/16/99 (H) MINUTE(STA) 3/17/99 489 (H) STA RPT COMMITTEE SUBSTITUTE(STA) NT 4DP 2DNP 3/17/99 489 (H) DP: JAMES, COGHILL, WHITAKER, OGAN; 3/17/99 489 (H) DNP: SMALLEY, KERTTULA 3/17/99 490 (H) FISCAL NOTE (GOV) 3/17/99 490 (H) REFERRED TO JUD 3/24/99 (H) JUD AT 1:00 PM CAPITOL 120 3/24/99 (H) HEARD AND HELD 3/24/99 (H) MINUTE(JUD) 3/29/99 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 134 SHORT TITLE: SKI VIOLATIONS BAIL SCHEDULE SPONSOR(S): REPRESENTATIVES(S) HUDSON, Kerttula, Bunde, Phillips Jrn-Date Jrn-Page Action 3/12/99 438 (H) READ THE FIRST TIME - REFERRAL(S) 3/12/99 438 (H) JUDICIARY 3/26/99 587 (H) COSPONSOR(S): PHILLIPS 3/29/99 (H) JUD AT 1:00 PM CAPITOL 120 WITNESS REGISTER TERESA WILLIAMS, Assistant Attorney General Fair Business Practices Section Civil Division Department of Law 1031 West 4th Avenue, Suite 200 Anchorage, Alaska 99501-1994 Telephone: (907) 269-5100 POSITION STATEMENT: Answered questions regarding HJR 18. EDWARD HEIN, Member National Association of Administrative Law Judges 3000 Blueberry Hills Road Juneau, Alaska 99801 Telephone: (907) 586-7261 POSITION STATEMENT: Testified in favor of HJR 18. REPRESENTATIVE SCOTT OGAN Alaska State Legislature Capitol Building, Room 128 Juneau, Alaska 99801 Telephone: (907) 465-3878 POSITION STATEMENT: Sponsor of HJR 18. REPRESENTATIVE BILL HUDSON Alaska State Legislature Capitol Building, Room 108 Juneau, Alaska 99801 Telephone: (907) 465-3744 POSITION STATEMENT: Sponsor of HB 134. LARRY DANIELS, General Manager Alyeska Resort P.O. Box 249 Girdwood, Alaska 99587 Telephone: (907) 754-1111 POSITION STATEMENT: Testified in support of HB 134. GARY MENDIVIL, Vice President Alaska Ski Areas Association 155 South Seward Street Juneau, Alaska 99801 Telephone: (907) 586-5284 POSITION STATEMENT: Testified in support of HB 134. PAUL SWANSON, Manager Eaglecrest Ski Area 155 South Seward Street Juneau, Alaska 99801 Telephone: (907) 586-5284 POSITION STATEMENT: Testified in support of HB 134. RUPE ANDREW Address not provided Telephone: (907) 789-7422 POSITION STATEMENT: Testified in support of the intent of HB 134. GARY CUSCIA, President Eaglecrest Ski Area Board of Directors Address not provided Telephone: (907) 789-5009 POSITION STATEMENT: Testified in support of HB 134. ACTION NARRATIVE TAPE 99-20, SIDE A Number 0001 CHAIRMAN PETE KOTT called the House Judiciary Standing Committee meeting to order at 1:11 p.m. Members present at the call to order were Representatives Kott, Green, James, Croft and Kerttula. Representatives Murkowski and Rokeberg arrived at 1:15 p.m. and 1:19 p.m., respectively. CSSB 77(JUD) - LIABILITY RELATING TO FIREARMS Number 0069 CHAIRMAN KOTT announced the first order of business is CSSB 77(JUD), "An Act prohibiting certain civil actions against firearms or ammunition manufacturers and dealers." CHAIRMAN KOTT announced that the bill will be waived out of committee. The House Judiciary Standing Committee already passed out of committee an identical version on March 22, 1999 [HB 103]. Number 0118 REPRESENTATIVE CROFT asked Chairman Kott whether the Senate version incorporated all of the amendments. CHAIRMAN KOTT replied it's essentially the same. If anybody wants to debate this, he suggested meeting about it later in the day or anytime before Wednesday [March 31, 1999]. HJR 18 - CONST. AM: ADMINISTRATIVE HEARINGS CHAIRMAN KOTT announced the next order of business is HJR 18, Proposing an amendment to the Constitution of the State of Alaska relating to an office of administrative hearings. CHAIRMAN KOTT indicated the committee will consider CSHJR 18(STA), 1-LS0513\G. CHAIRMAN KOTT announced that Teresa Williams in on the teleconference network and asked her for the citation on the court case she mentioned at the last meeting. TERESA WILLIAMS, Assistant Attorney General, Fair Business Practices Section, Civil Division, Department of Law, testified via teleconference from Anchorage. She replied the citation is 938 P. 2nd 1091. Number 0274 EDWARD HEIN, Member, National Association of Administrative Law Judges, testified in Juneau. The association supports the resolution. He is also in charge of the Administrative Appeals Office for the National Marine Fisheries Service-Alaska Region; he is a licensed attorney; and, he is a former attorney for Legislative Legal Counsel. Mr. Hein stated that HJR 18 is not a new idea. One-half of the states have a central panel of administrative law judges and hearing officers. This type of proposal, in various forms, has been before the legislature. He cited last year and about 14 to 15 years ago. But, this resolution is new in that it would establish a central panel by constitutional amendment rather than by statute. Alaska would be the first state to do so. There are at least three good reasons for placing this office in the constitution. He cited the following: First, centralizing the function of administrative adjudication is an important change in the structure of the executive branch, and is a subject of constitutional dimension; Second, a constitutional amendment would give the public a direct voice on this issue, and it would not be subject to the Governor's veto; and Third, approval by voters would provide a clear public mandate and deadline for both the legislature and the Administration to take action. MR. HEIN stated that previous efforts to create a central panel have been sidetracked by fights over the administrative details. That is to say that they aren't important. But, this resolution focuses the debate on the main question: Is a central office of administrative hearings a good idea for Alaska? Will it improve the fairness, efficiency and cost-effectiveness of administrative hearings in Alaska? Many witnesses from individual agencies have come before the legislature expressing fears and concerns of how a centralized administrative hearings office would affect their agencies when much of that testimony is premature. The shape of the proposed central panel would not be determined until the legislature considers implementing legislation. The purposes of the legislation are to centralize the administrative adjudicative function of the executive branch in a single agency; to create a core of professional, independent hearing officers who would provide the public with both the reality and appearance of impartial, fair administrative hearings; to eliminate costly and inefficient duplication of hearing officers and support staff positions in the executive branch; and to provide a uniform adjudication process and set of rules for all who have to participate in administrative hearings. This legislation is not intended to limit the legislature's power to create new quasi-judicial agencies in addition to the proposed office of administrative hearings, nor is it intended to prevent the legislature from continuing the adjudication function of selected existing boards and commissions, if the legislature so chooses. It is not intended to impinge on the adjudicatory functions of the judicial or legislative branch, or to create a fourth branch of government. It is not intended to disrupt the ability of the governor and heads of agencies to carry out public policy. The head of the office of administrative hearings would be appointed by the governor, and the office would be within the executive branch. A central hearings office would actually relieve executive agencies and heads from some political pressures to decide cases a certain way. MR. HEIN stated the legislature, as the resolution is written now, would determine the jurisdiction of the office of administrative hearings in the implementing legislation. The legislature could decide which agencies, if any, should be exempt from this office's jurisdiction. The legislature could also decide to exempt certain types of matters from this office's jurisdiction. The language of this constitutional amendment does not require that the office of administrative hearings have exclusive jurisdiction over all the administrative adjudications. It starts with the premise that the office of administrative hearings has jurisdiction over adjudications in the executive branch, but it leaves the legislature the power to carve out whatever it chooses in its wisdom. The legislature could provide, if it wished, that the office of administrative hearings would have mandatory jurisdiction over some agencies and discretionary jurisdiction over other specified agencies. Agencies over which this office had discretionary jurisdiction could by agreement refer selective cases to the office of administrative hearings for hearing and decision. But, as the resolution is written now, all decisions of the office of administrative hearings would be final and appealable to the superior court. MR. HEIN stated one objection raised was that in centralizing the adjudicative function expertise would be lost; the technical expertise that is necessary in many of the hearings that are currently run by various agencies. But, there is no reason that the office of administrative hearings could not have subject-matter expertise to decide all cases within its jurisdiction. The chief administrative law judge would have inherent authority to hire hearing officers with certain areas of expertise, perhaps from existing state agency hearing officers. The legislature could, if it wished, require that appropriate expertise be included within the office of administrative hearings or that the persons assigned to particular cases have the appropriate expertise. The chief administrative law judge could also provide training and continuing education as needed. In addition, the agencies that are party to hearings before this office could present expert testimony. MR. HEIN stated another objection raised was that this legislation would limit the legislature's authority to determine the office's jurisdiction. The Office of the Attorney General argues that because the proposed constitutional amendment uses language similar to Article IV, section 1, the legislature could not by statute take away some of the office's exclusive jurisdiction over all administrative hearings. In response, firstly, the proposed resolution does not delete the last sentence of Article III, section 22, which authorizes the legislature to establish by law additional quasi-judicial agencies. In other words, the legislature would implicitly retain the authority to establish or retain adjudicative power in agencies other than the office of administrative hearings. Secondly, the Rozkydal v. State case interpreted statutes which limited the right of convicted felons to appeal their sentence to the court of appeals, and which limited the court's jurisdiction to hear sentencing appeals. The court held that the statutes were constitutional, but concluded that the appellate retained the right to petition the Alaska Supreme Court for sentence review. The court of appeals citing a supreme court case noted that there would be a serious constitutional problem if a statute were interpreted in a way that infringed on the supreme court's authority as the highest court of the state with final appellate jurisdiction. The resolution, however, does not have such language. So, it's not clear whether a holding in that case would apply to this proposed constitutional amendment. Finally, in the Rozkydal v. State and Hickel v. Halford cases the courts have stated that it would take a commonsense approach to interpreting the language of constitutional amendments, and that it would look to legislative reports to determine their purpose and intent. In Hickel v. Halford for example, the court said that unless the context suggests otherwise words are to be given their natural, obvious and ordinary meaning. The court is generally reluctant to construe abstrusely any constitutional term that has a plain, ordinary meaning absent some signs that the term has acquired peculiar meaning by statute definition or judicial construction. Otherwise, the court defers to the meaning the people themselves placed on the proposition. The court referred to a House Finance Subcommittee report to determine the purpose of the amendment. And, likewise, in Rozkydal, the court referred to a House Judiciary Standing Committee report on HB 281 and rendered a decision based on the description of the legislative history in that report. The reports that the legislature writes are not ignored. That's not to say that other intent language should not be included; and, obviously, the clearer [the language] the better. MR. HEIN stated another objection raised was that this is too broad; it covers too many things, not just adjudicative hearings. The Office of the Attorney General cites Hickel v. Halford, and that the term "administrative law hearings" covers all agency dispute resolutions. The intent is to cover adjudications. If that is not clear, he suggested changing the language. In Hickel, the term "administrative proceedings" is interpreted which while it refers to adjudications is a different term. It was interpreted in the context of the amendment that created the Budget Reserve Fund. In Alaska's statutes, regulations and cases, the preferred term is "administrative hearing". It is one that has been widely recognized, and one that all three branches of government understand its meaning. MR. HEIN stated another objection raised was to the term "final agency decision". It is not actually agency decisions. He will not quibble about using that term, however. The intent is to show that once a decision has been rendered by the office of administrative hearings, it would be appealable to the court system; it would not go back to the agency for finalization and review. MR. HEIN stated another objection raised was that the title administrative law judge and chief administrative law judge are too formal, and, Alaska has purposely not adopted the administrative law judge style of hearing officer because it would be too formal. That hearing officers would wear robes, and would be referred to as "Judge" and "Your Honor". He has never found that a title makes any difference, and how an individual hearing officer acts is up to that officer. In addition, there are some positions in the state that have the title administrative law judge. One was created for revenue hearings. MR. HEIN stated another objection raised was concern about the hearings becoming too formal. That is a reasonable concern. The obvious intent is to provide a less formal, less expensive, and less time consuming process than the court system. That is implicit with any administrative hearing procedure, but there is nothing in this legislation that would suggest or require the nature of the hearings to be changed. MR. HEIN stated another objection raised was that there is no provision for the removal of the chief administrative law judge for cause. He suggested adding that provision wouldn't hurt. He noted that SJR 19 has such language. Number 1311 MR. HEIN stated, in conclusion, that he is here from the federal government, so he doesn't have to fear any retribution for what he says today. Therefore, on behalf of all the state hearing officers who do not feel free to speak out publicly, either in support or opposition, he knows of specific examples where hearing officers have been told pointedly that they are not to be objective and impartial because they work for an agency. There have been instances in which executive branch supervisors have told hearing officers how individual cases are to be decided. According to horror stories from hearing officers from many different states, it is not uncommon to hear that hearing officers within an agency are subject to pressures from their supervisors to decide cases a certain way. This reflects a disregard for the basic principles of due processes, fair hearings and impartial hearing officers. As a hearing officer himself, it is exceptionally important that hearing officers are not placed in a position of jeopardizing their career or job in order to do what they think is right in a given case. The public also has a right to expect that a hearing officer is going to render a fair decision, otherwise the parties, public and attorneys come to the agencies as a matter of going through the motions and do not expect real justice. This legislation can go a long way towards remedying those types of problems. He is not saying that Alaska's administrative process is particularly worse than other states, but rather that this is an inherent problem common in most states. The result of a central office would be to have more impartial, professional, and better trained decision makers, as well as better decisions that would ultimately benefit the public. Number 1496 CHAIRMAN KOTT asked Mr. Hein why the other 49 states, of which one-half have this type of process, have not gone to a constitutional amendment. MR. HEIN replied he really doesn't know why it hasn't been done in other states. This is the first time that he is aware of this type of approach. There hasn't been any objection to it as far as he can tell; there just isn't any literature on it. He has talked to a few people who are the heads of central panels in other states and they think it is a wonderful idea. "Maybe they just didn't think of it before, I don't know." He feels that this is the right approach. It doesn't sully the constitution or is inconsistent with other types of provisions in the constitution. "I will admit, however, that by placing this agency within the constitution, by creating it by constitutional amendment, you are making a commitment to the agency. You're saying, 'we're not going to be able to turnaround in a couple of years and pass a bill to abolish it.' You have control over funding, obviously, and you'll have control over the--the legislation that sets up the details and the structure of it, and you'll have continuing oversight over the agency." It is an important change in the way the state does business and putting it in the constitution is a way to make it permanent and to give the public a direct voice. Number 1635 REPRESENTATIVE KERTTULA asked Mr. Hein whether the National Association of Administrative Law Judges supports this particular bill. MR. HEIN replied the National Association of Administrative Law Judges does not have a statement on this particular bill or the approach of using a constitutional amendment. It supports the concept of a central panel. It supports in particular the model Act drafted by the ABA (Alaska Bar Association). The officers that he has spoken to from the association agree with this approach. It is not inconsistent with other pieces of legislation. Of course, the legislature in Alaska has the right and discretion to create any kind of legislation that it wants in detail to create a central panel. The 25 states that have a central panel have chosen various structures and various degrees of coverage. He noted that no state has 100 percent coverage, and for good reasons. He doesn't expect that Alaska would have 100 percent coverage either. There is nothing in this piece of legislation that is inconsistent with the overall goal of a central panel. Number 1735 REPRESENTATIVE CROFT said that Mr. Hein testified in favor of Representative Ogan's bill last year. He asked him whether that bill was constitutional. In other words, can a central panel be set up without a constitutional amendment? MR. HEIN replied yes. Article III, section 22, of the state constitution, says that the legislature has the specific authority to create quasi-legislative [quasi-judicial] agencies. This legislation does not remove that provision. He doesn't know of any constitutional provision that is an impediment to creating a central panel by legislation. Number 1779 REPRESENTATIVE CROFT said he has substantial worries that it would limit the legislature's power. If the legislature has the complete power to create a central power, he asked Mr. Hein wouldn't that cause unintended problems? MR. HEIN replied there are only problems if the legislature actually does something. The legislature has never acted on this issue. The bill that came before the legislature last year died in subcommittee. The bill introduced years ago never saw the light of day because there wasn't the will on the part of the Administration or perhaps the legislature at the time to take action. Objections to a 200-page bill were very easy to find, and it was very easy to stop. "And, without some public mandate to do it, and some time limit to get it done, as this would do if it passes, I don't think the legislature will approve any legislation on a central panel. Now, show me I'm wrong." This legislation asks the legislature to make a commitment to not only create an agency and accept the basic concept, but to put it before the public to make the final decision. It still leaves the difficult battle of sorting out all the details of a central panel. Clearly, if this passes the public vote, the legislature will have a major task on its hands. The resolution starts from the premise that there would be an agency with jurisdiction over administrative hearings and that the various agencies would have to come before the legislature and justify why they should be opted out. They might have very good reasons for why they shouldn't be covered under a central panel. But, this starts with that premise. It gives the legislature marching orders and direction. In essence, by approving the resolution, the legislature is agreeing to put itself under discipline; and, frankly, that is a big part of this. Number 1934 REPRESENTATIVE CROFT stated it seems that the discipline may be imposed by the courts. If this vests administrative law hearings and final agency decisions [in the office of administrative hearings], then it would be for the legislature to sort it out later. The courts would sort it out when the legislature has plenary power to do it now. "If we enact this, we may have a much more limited power. It may be the court telling us which decisions are under this and which aren't, and, not which ones we choose. In fact, the court would be telling us what their reading of 'final agency decision' is, and when we make out differing allocations they'd be telling us whether it's right or wrong under this provision and that worries me." MR. HEIN said he is not wedded to any particular language in the resolution. He is interested in the basic concept and goals. He suggested changing the language, if there are concerns. It can be easily changed, if there is a consensus. The courts have said that they will interpret the language in an obvious way. The question still is one of liking the concept or not. Number 2016 CHAIRMAN KOTT said, if the legislature likes the concept, wouldn't it be more efficient to proceed statutorily in pieces rather than to come up with a 200-page bill? He thinks, that the legislature gives up some of its responsibility, if a constitutional amendment goes before the voters. MR. HEIN said this resolution is more efficient because it recognizes that this is a big job, looks at the administrative process as a whole, deals with the Administrative Procedure Act and all the different agencies and statutes that might be affected by this. That could very well take two years, but this cuts across legislatures; it provides a mandate that would supply the consistency lost from legislature to legislature. The resolution would give the time frame and requirement to work on this large project over a period of two years or more. In addition, there is nothing in the resolution that says the legislature can't bite off a little bit at a time. It would allow for some experiment and would require the participation of the Administration and the different agencies to come forward and explain why they think this is or isn't a good idea and why their particular board or commission should or shouldn't be under a central office. This resolution would provide the commitment and need to work on this issue during the interim, and there is nothing to prevent the legislature from assigning a special committee to work on it year round in order to come up with a proposed bill before the public even votes on it. It's up to the legislature. He reiterated a constitutional amendment gives more options. Number 2203 REPRESENTATIVE MURKOWSKI asked Mr. Hein how this resolution does not create a fourth branch of government, intentionally or unintentionally. MR. HEIN replied when he was in school the fourth branch of government was the press. The administrative branch is sometimes referred to as the fourth branch of government. It was not originally part of the U.S. Constitution, and it is not spelled out very well in the state constitution. There is quite a lot of latitude for the legislature to create an administrative branch by establishing as many boards and commissions as it so chooses. The resolution is not talking about a separate branch of government; it is talking about the legislature asserting its power to tell the executive branch that it would like this function centralized within the executive branch. It doesn't take it outside of the executive branch. A governor's appointee heads the office of administrative hearings. In addition, the legislature is not required to put everything in this central agency. It wouldn't make sense to do that ultimately. It really challenges the executive and legislative branches to decide what is their paradigm for administrative hearings. Are administrative hearing officers simply instruments of executive agency policies? Are they there as just one more staff member to further that particular agency's stated and unstated, written and unwritten policies? Or, are they there as a middleman between the public and government who don't have a pride of authorship in the regulations or an investment in them? The public wants that. It would be refreshing for the public to go before a hearing officer and know that this person is not having informal, ex parte conversations on a regular basis with people in the agency. He noted that the executive branch is a microcosm of the three branches. It was designed that way and has been that way for every state and the federal government for a long time now, at least since the New Deal. There are quasi-legislative and quasi-judicial functions within the administrative branch. The question is, can the decision makers become overwhelmed with pressures from their own agencies to interfere with the outcome of a particular case? He has heard executive branch supervisors and people express concern about the quality of hearing officers in other agencies. They are concerned that the independent hearing officers would not decide a case the way that they would want to. If there is concern about the quality and competency of a hearing officer, the implementing legislation can specify the standards, review the office's budget and oversight - the traditional functions that the legislature performs with respect to the executive branch. TAPE 99-20, SIDE B Number 0001 MR. HEIN continued. He thinks that it is obvious, when creating a central panel, that the agencies will have to live with the possibility that they could lose. That's just the way it is, but it is still within the executive branch. He doesn't see it as a separate branch. Number 0035 REPRESENTATIVE GREEN referred to the testimony earlier regarding dealing with this issue in segments, and asked Mr. Hein whether he thought that meant it would require coming back to the constitution on several occasions with subsequent pieces of legislation to add various departments to the constitution. MR. HEIN replied no. He suggested using one constitutional amendment to establish a centralized office thereby making a commitment for a centralized process. Then, in the implementing legislation, decide how much or how little of the agencies boards' and commissions' work it should deal with. He suggested initially giving the office limited jurisdiction and as it develops expand its jurisdiction. He sees the resolution as setting up a permanent framework. The idea is not to come back to the constitution again, but to get the big question settled. The details can be worked out later with as many bills as needed. Number 0142 REPRESENTATIVE GREEN said one of the concerns of getting the tax court appeal set up was expertise. There are states with a higher repetition of certain things that an administrative law judge could deal with year round. There could be a tax appeal from an oil company which would be massive in importance, but small in frequency. He is concerned because Alaska is small and even though the expertise will have been established in several jurisdictions, there will not be enough load in each to require that expertise. Number 0194 MR. HEIN stated that is one of the things a central panel is intended to address: the extent that hearing officers in agencies don't have enough work. A central panel could find other work and keep a hearing officer busy full time. It would also relieve the pressure of agencies to use them for the purposes of drafting policies and regulations. The resolution does not suggest that a hearing officer would have only one area of expertise. With a centralized agency there is continuing education, cross-training and backup. If there is a heavy case load for a period of time, extra officers could be assigned for that period. The problem with an isolated hearing officer in an agency is that officer doesn't have any professional support which is different than the professional problems of advocates, court judges and attorneys. It is a profession within its own right with unique practices and problems. The judicial branch doesn't have problems of direct or indirect pressures from bosses that administrative hearing officers have. In terms of expertise, he doesn't see that as a problem because whoever does the hiring in such an office would have the option of hiring people from existing agencies now, as well as expertise in the private sector. Number 0356 REPRESENTATIVE JAMES noted that she has been working on changing the business of appealing to the same agency that writes and enforces the law [regulation] for six years now. There may be different people involved, but they all work for the same person - the commissioner. The next step for a complaint that has been ruled in favor of the complainant by a commissioner is the courts without this administrative law judge. If there is this panel of innocent folks, a complaint could then be taken to them after going to the commissioner. In other words, all of the same steps that are taken now are still there, except that a final decision for an agency would be put in this panel prior to going to court. In addition, in relation to the expertise issue, she believes that expertise means bias because each party would be presenting their cases before an administrative law judge. MR. HEIN said it was accurately said last week that, "one size doesn't fit all." There is quite a range of different kinds of boards and commissions and matters that the agencies have jurisdictions over, and their procedures differ somewhat. A motor vehicle licensing matter is different than a public utilities matter or workers' compensation matter. It is a question of who an agency, board or commission wants to make the final decision before going to court. It is a question of the role of the commissioner. It is an agency-by-agency determination, and it wouldn't be the same for each. An agency could make certain determinations with something less than due process, for example, that becomes the agency's decision which would be appealed to an hearing officer in a central panel or otherwise. An agency could maintain its own hearing officer, for example, that would make recommendations to the governing board or commission. He reiterated that no state has 100 percent coverage; it's a mixture. And, within certain states there are different structures even for the central panels. He suggested looking at the different states. MR. HEIN said, in response to the question of expertise, it varies from agency to agency. Some agencies require a higher level of technical expertise. He cited motor vehicle matters would be less technical than utility matters. The level of expertise depends on the structure of the central panel. For example, it could be structured so that a hearing officer represents an agency and in a hearing there would only be the officer and the citizen, for example. In essence, it's a two-party case, but only one party is there. In that case, it is easy to see why an agency would start to look at that hearing officer as its person and is suppose to represent the agency's point of view. A central panel represents a more even-sided structure where an agency could or might not be represented. There is expertise by virtue of training and experience by others providing expert testimony/documentation that could be challenged by either side. This suggests a two-party system where both sides would be represented before an impartial hearing officer who would have some expertise and who would bring in other expertise on a case-by-case basis. Number 0829 CHAIRMAN KOTT referred to Mr Hein's suggestion that there are hearing officers in various agencies who are not making independent decisions and stated that is extremely alarming. There must be a remedy to ensure that doesn't occur. Maybe this is the remedy, if in fact that is true. Number 0868 REPRESENTATIVE ROKEBERG asked Mr. Hein whether he would find it troublesome to amend the resolution to include the language, "...to render final agency decisions or recommendations to the boards or commissions...". The boards and commissions are constitutionally empowered. It seems that giving the final decision to the administrative law judge would negate the powers of almost all the boards and commissions from making final determinations. It seems that this would work well for an administrative law judge to make a decision that is passed on to the board or commission to determine the punishment. That is where the expertise lays; they could decide whether revocation [of a license], for example, is appropriate. Number 0930 MR. HEIN replied it's not necessarily a problem; it's just that the existing legislation makes a policy choice. The existing legislation starts with the premise that all the decisions of the central panel would be final decisions. If the legislature prefers to build in more flexibility, it can certainly do so... REPRESENTATIVE ROKEBERG interjected and stated not under this resolution. The language needs to be changed to give the legislature the discretion to prescribe what it should be doing. MR. HEIN said he agrees that the existing language has a bias in favor of [the central panel making the] final decisions. But, Representative Rokeberg's suggested language leaves open who would decide the final decision. Obviously, that could be spelled out in the subsequent implementation legislation. Number 1011 REPRESENTATIVE CROFT said that Mr. Hein reads the language, "The jurisdiction of the office shall be prescribed by law.", as 100 percent, 0 percent, or anywhere in between. He asked him whether it could say that the jurisdiction of the office is nothing and keep that for 10 years. MR. HEIN replied to put in nothing would undermine the whole purpose of the bill. He doesn't know what a court would do with that language. It's the same as a zero fiscal note. REPRESENTATIVE CROFT asked Mr. Hein whether there couldn't be a zero fiscal note. MR. HEIN replied it could be done, but there probably would be challenges to it. A constitutional amendment is different than dealing with something that is just in statute. The current language does not restrict the legislature beyond what is says. It suggests that the office would have some jurisdiction, but it doesn't say how much or how little. It arguably could be read as having all jurisdiction. "You're hear to make these policy choices, and the words can come later." Number 1181 REPRESENTATIVE CROFT said if a jurisdiction is put over a very small amount, then it would behoove the court to say whether there is enough to meet the jurisdiction. MR. HEIN said anything that the legislature does is subject to reasonableness. He can't say what the courts would do; it depends on the final language. The clearer the legislation the better. He doesn't know how much latitude a court could give to the legislature. Typically, the courts give the legislature a very wide latitude, particularly since there is history behind legislation. He assumes that the legislature would adopt legislation consistent with the amendment. Number 1257 CHAIRMAN KOTT asked Mr. Hein, if the resolution is passed and goes into effect, whether he is correct in saying that if the legislature does nothing then nothing happens. MR. HEIN replied, "That's probably right." CHAIRMAN KOTT commented there is a shallowness in the constitution. MR. HEIN commented perhaps there is a constitutional impasse. CHAIRMAN KOTT asked Mr. Hein whether there is merit in including a specific date, even though a legislature can't legislate future legislators. "It just seems like we could be spinning our wheels and not getting anywhere. And, if we can't pass legislation today that would in effect implement something very similar, there's no guarantee in the future. In fact, there's probably lesser of a guarantee." MR. HEIN replied, if the legislature has the authority to stop time, it can probably find a way around any deadlines imposed. This version of the resolution has a date by which hearings would come under the jurisdiction of a centralized office. If the office was not yet in existence and ready for hearings, then there might be a bunch of parties filing suits to force the state to do something. He hopes that should the public vote, particularly with any kind of a substantial margin in favor of the amendment, that the legislature and the Administration would get the message and be responsive politically. Number 1427 CHAIRMAN KOTT closed the meeting to public testimony. Number 1441 REPRESENTATIVE ROKEBERG stated he is concerned with the language, "final agency decisions" and suggested adding the language, "...or recommendations to boards and commissions...". "It would change the focus here from a final agency decision by the administrative law which would relate--that'd be okay because it'd have to do with the agency, but then the recommendations to the boards and commissions could be recommendations to leave the final power up to the duly constituted boards and commissions which are in the constitution and are established by law. That would seem to be consistent with the ability to prescribe by law or by--have the legislature pick and choose. Because the way this is drafted now, I don't think they could pick and choose, in my opinion. Or, if they can, this ain't gonna pass because the public's not going to like it." There is already poison in the water hole by alienating the boards and commissions which need to be dealt with from a political sense. He also thinks that there is merit to allow them to at least have a role. Right now, they use hearing officers to make comments and decisions, but the board or commission actually makes disciplinary decisions based on recommendations from the hearing officers. One of the reasons that he likes the bill is because the attorneys from the Department of Law don't get around to taking up some of the matters before agencies because they are a low priority. This bill addresses a huge need. Nevertheless, there needs to be some more legal words in the resolution to give the legislature discretion to prescribe more laws. Number 1561 REPRESENTATIVE JAMES noted that the bill does not say to render "the" or "all" final agency decisions; it just says, "to" render final agency decisions. The agencies determined to have authority would be prescribed by law. She doesn't see a problem with it. Number 1624 REPRESENTATIVE KERTTULA commented that this piece of legislation leads to so many unintended consequences. It's one of the broadest, more unthinking pieces of legislation that she has seen this session. She has worked with many, many administrative agencies and hearing officers, and her experiences have been vastly different than the fears expressed by Mr. Hein and others. She thinks that at the kernel of the issue is a grain of truth - the fear of unfairness. That kernel of truth deserves some looking at and flushing out. Many agencies don't use the APA (Administrative Procedure Act), for example, which might be an avenue to use to clean up some of this concern. But, to take this type of broad-brush approach, when the legislature couldn't enact a bill with specifics last year, is unbelievable. The way that she reads the language in the bill is that the office of administrative hearings has the power. The court may read it that way as well. Two lawyers who have testified who practice exclusively in this field are very concerned about this as well. She called this piece of legislation the chicken before the egg. Number 1741 REPRESENTATIVE CROFT said he agrees with Representative Kerttula. It would put all of the power into the office of administrative hearings. It is something, however, that the courts will decide. At its best, it does nothing. At its worst, it is a substantial judicial straightjacket. Chairman Kott is right in that the legislature should start with a small, identified area that people agree on. In addition, it upsets a series of historical policy determinations, such as those relating to workers' compensation. In that board, labor and business are relatively happy with the process because they helped form it. It's a major peace treaty in a difficult area, and this bill would blow that out of the water. No state has 100 percent coverage, and there is a substantial risk that this is what the bill would require. The funding issue is an interesting question. If funding was cut, the state could find itself in a lawsuit. He commented, "You can't do that with this jurisdiction, any more than you could cut off all funding for the court system." He thinks that any good idea taken too far can become a bad idea. There is a kernel of a point here, and it should be handled incrementally. This way is just fraud with danger. It also seems odd that the legislature would force itself to do something when it has not yet convinced itself to do anything. He's not sure that the legislature should do something that is irrevocable, when it is not sure that it wants to something temporarily. Number 1967 REPRESENTATIVE JAMES reiterated that the language is just an authorization to do it. She asked Representative Croft whether a jurisdiction such as workers' compensation could be denied by law. REPRESENTATIVE CROFT replied it would be very different if the language read, "The office of administrative hearings shall have the power to..." rather than, "The power to conduct administrative law hearings and to render final agency decisions is vested in...". That kind of language implies that the power isn't anyplace else. That is the worrisome part of the language. The second sentence, "The jurisdiction of the office shall be prescribed by law.", tries to take it back. That is what a court would have to wrestle with. That's why the language of the jurisdiction of the courts is being looked at. He said, "'The supreme court shall be the highest court of the State, with final appellate jurisdiction.' And, if we try to take away their power, we can limit or condition or put fees or those sorts of things, but if somebody doesn't have an appeal to the supreme court someway, we've gone too far and the case law makes it clear there." Number 2141 REPRESENTATIVE ROKEBERG commented that the second sentence in Section 1(a) is desirable in that the legislature would be able to prescribe that by law. But, there is a conflict between the two sentences and he's not so sure that there is a complete distinction between them. If this committee can't agree on the clarity of the language, he wondered how the average voter would figure it out; and, consequently, it would fail to get the public's support. Number 2212 REPRESENTATIVE SCOTT OGAN, Alaska State Legislature, said it seems that a lot of the discussion is about who would have the last say. He submits that a central panel, without a vested interest in covering up something, would be the best one to make the final decisions. Although the boards would lose their quasi-judicial authority, they could certainly have hearings and make recommendations to the administrative law judge. It is more appropriate than the other way around, otherwise there is another layer of bureaucracy and more hoops for the public to jump through. If this bill dies, in his opinion, the Administration will not come to the table. He introduced the bill this year because two years ago he tried and the Administration ran interference every step of the way. "I would suggest to you, if this bill dies, then we'll just keep on having this kind of hearing that we've got now and--and the public won't be well served and they won't have due process. I honestly believe that with every fabric of my being, cause I've put a lot of blood, sweat and tears into working on this two years ago, and just had hurdle after hurdle put up. It wasn't a linear process; it was a circular process. We'd all--we'd jump through these hurdles then they'd put up some more. And, so, this forces this issue to be resolved. And--and--I think, if there's problem with some of the language--you'd like to have a little bit more legislative authority, I think that can be adjusted." Number 2388 REPRESENTATIVE ROKEBERG said he supports the legislation, but has concerns about how it would work practically. Right now, there are administrative hearings in the boards and commissions, and there are administrative hearing officers within the departments that adjudicate grievances. The commissioners then make the final determination on the punishment. For example, the APUC (Alaska Public Utilities Commission) has a hearing officer, but the full commission makes the final decision. He is trying to make sure that there is flexibility, and that the legislature can by statute give guidance. TAPE 99-21, SIDE A Number 0001 REPRESENTATIVE OGAN said that the Administration, two years ago, kept saying that it supported the concept, but it wanted to see the legislation. "Until then, I think, you know, you let 'em run interference on this one and kill this bill, then we can forget about anything ever being done." Number 0045 CHAIRMAN KOTT assigned the bill to a subcommittee consisting of Representative Murkowski as chair, Representatives Green and Kerttula. The intent is not to bury the bill, but to deal with some of the issues discussed today. He cited working on the nexus between the first two sentences in Section 1(a), the issue of removing a judge for cause, and tying a date to mandate the legislature to act. HB 134 - SKI VIOLATIONS BAIL SCHEDULE CHAIRMAN KOTT announced the next order of business is HB 134, "An Act relating to the authority of the Department of Natural Resources to issue citations for certain skiing violations; relating to establishing a bail schedule for certain skiing violations and to procedures for issuing a citation for a skiing violation." CHAIRMAN KOTT called on Representative Bill Hudson, sponsor of the bill. Number 0203 REPRESENTATIVE BILL HUDSON, Alaska State Legislature, stated HB 134 is simple. It is a technical amendment to the Alaska Ski Safety Act of 1994 which provides ski areas and skiers with equitable treatment on the ski slope for their own safety and the safety of others around them. This bill amends sections of the Act that will improve enforcement. It will make it available to all ski areas in the state. He explained, when the Alaska Ski Safety Act was fashioned in 1994, the drafter laid on some language that related to the ski areas over which the state has jurisdiction when there are a number of ski areas in which the land is owned by private operators. In addition, in order to fully implement the Act, a bail schedule needs to be established which was not included in the original bill in 1994. The courts have indicated that they need specific language in the law in order to permit them to establish a bail schedule. Section 2 gives them that ability. A bail schedule is absolutely essential to enforce the Act. He reiterated HB 134 is technical; it doesn't expand any of the language in the original Act; it doesn't expand any police powers on the ski slopes; it simply provides a technical change for the courts to establish a bail schedule. Number 0426 CHAIRMAN KOTT asked Representative Hudson whether this will cite the seven year olds on the slopes. REPRESENTATIVE HUDSON replied no. This is trying to save their lives by keeping the big guys from not following the rules. This keeps skiers out of areas that might generate a landslide forcing the ski patrol to rescue them from areas that are secured. A skier can still get off the trail if that skier wants to. Number 0491 CHAIRMAN KOTT asked Representative Hudson whether there are signs posted to warn skiers of the issuance of citations. REPRESENTATIVE HUDSON deferred the question to the experts. Number 0558 LARRY DANIELS, General Manager, Alyeska Resort, testified via teleconference from Anchorage in support of HB 134. The 1994 ski safety Act is very broad. It identifies numerous responsibilities of the ski areas, the state, and individual skiers. It contemplates the issuance of citations for skiers who violates specific sections of the Act, but as the supreme court correctly noted, it does not mention a bail schedule. The Act is also ambiguous concerning ski areas not on state lands. House Bill 134 corrects those deficiencies and provides ski area operators a tool to encourage appropriate behavior. Currently, ski area operators have authority to issue a $50 citation, and thus far no citations have been issued. Therefore, any concerns of a large number of citations being issued are not realistic. Citations have been issued in years past, but at the current level there isn't a deterrent to significantly discourage skiers from going back and performing the same act. In regards to signs, the Act requires a notice at every lift, but because it is so wordy, a skier has to seek out specific issues from the Act itself. Number 0711 REPRESENTATIVE MURKOWSKI asked Mr. Daniels whether there is the ability to pull a ticket, besides issuing a citation, or is it an either-or deal. MR. DANIEL replied ski operators have the right and do revoke skiing privileges. However, more often than not, a violation occurs late in the afternoon and taking away a ticket with the balance of an hour or so doesn't provide that much of a deterrent. Number 0841 GARY MENDIVIL, Vice President, Alaska Ski Areas Association, testified in Juneau in support of HB 134. He is also the business manager for the Eaglecrest Ski Area. He noted that there are over 14 ski areas in the state. Some are operated by non-profits; some are operated by city governments; some are privately operated; and, some are operated by the military. When the Act was passed in 1994, it contained language allowing for a bail schedule for citations on a specific list of infractions. But, the court system declined to create a bail schedule because there was no clear authorization in statute. The purpose of HB 134 is to correct that oversight. Although these citations may be considered the equivalent of a parking ticket, they will not be issued as frequently. Each individual ski area has policies and disciplinary procedures in place for dealing with many of these offenses. Unfortunately, there are chronic and intentional offenders that do not comply with the discipline requiring appropriate legal action. The proposed bail schedule will allow ski areas to deal more effectively with those persons. Number 0945 PAUL SWANSON, Manager, Eaglecrest Ski Area, testified in Juneau in support of HB 134. He concurs with everything that Mr. Daniels said. The Act was intended to set a bail schedule for certain violations. The bill will not prohibit skiers from going outside ski area boundaries. It says that skiers cannot go into closed areas. Eaglecrest does not recommend that skiers go outside the boundaries because there is no avalanche control or first aide work done outside them. But, people are able to go out there on their own. The problem at Eaglecrest is that people go into areas that are roped for avalanche control, and once they go into those areas, Eaglecrest has to stop its control work and chase them out. Currently, the policy at Eaglecrest is to restrict ski privileges for two weeks if a person is caught within an area. But, if that person has a day pass, there isn't much that can be done. He feels that people come to Eaglecrest to have fun and this bill helps to ensure that. Number 1149 REPRESENTATIVE KERTTULA stated a concern she has heard is that this approach is more disciplinarian than educational. According to statute, it is the responsibility of the ski operator to make available at reasonable fees instruction and education on the dangers and risks of skiing. She asked Mr. Swanson to put on the record the efforts that Eaglecrest has made towards that. Number 1192 MR. SWANSON replied Eaglecrest presently has signs and runs a video. The ski patrol does a very good job at addressing and marking hazards, and dealing with the public. Number 1220 REPRESENTATIVE KERTTULA asked Mr. Swanson whether the ski instructors also make a big point of teaching safety. MR. SWANSON replied yes. It is part of the curriculum. Number 1250 RUPE ANDREW testified in Juneau in support of the intent of HB 134. There are problems in the way the bill is written. It may cause problems that aren't seen right now. For example, he wants to know whether it applies to Nordic skiers. They ski most of the time outside of regulated areas. They are all over the countryside. In addition, the bill indicates that the commissioner of DNR (Department of Natural Resources) and/or the ski operator will designate people to enforce it. What happens if a person refuses to sign a citation? he asked. Enforcement will not be without cost, if a citation is challenged. Who will provide for lost wages and time in court? he asked. In addition, AS 11.81.900 defines the term "recklessly" which leaves a lot of personal interpretation by the person charged with enforcement. A defendant has the burden of preponderance [of evidence] in proving his/her innocence. Number 1383 REPRESENTATIVE MURKOWSKI commented she read somewhere that a person doesn't have to sign a copy of a citation. REPRESENTATIVE KERTTULA noted that was changed in Section 3 of the bill, precisely for the reasons that Mr. Andrews cited. MR. ANDREWS asked whether the person charged with enforcement will have the authority to arrest a person for refusing to sign a citation. There will be a "preponderance" of juveniles in these cases, and fines of $75 to $100 will be tough for them. Number 1458 CHAIRMAN KOTT noted that Nordic skiers are included. REPRESENTATIVE KERTTULA replied that Nordic skiers are not included. Cross-country ski trails are not included in the definition of ski area. There could be a Nordic skier on a downhill slope, however. Number 1481 REPRESENTATIVE CROFT referred to AS 05.45.200 and the definition of the term "ski area." He said it really isn't going to prohibit back-country skiing. It has to be under the control of a downhill ski area. If they have no power to open it, they have no power to close it. Number 1505 MR. ANDREWS referred to AS 11.81.900 and the definition of the term "recklessly." He interprets it as "going beyond area boundaries." The boundaries are clearly marked, and if a skier goes beyond them, it's that skier's responsibility financially if something happens. Number 1539 REPRESENTATIVE KERTTULA noted the intention of HB 134 is to enact the bail schedule in AS 05.45.100. The list is pretty exclusive and includes skiing on a slope or trail that has been posted as "closed." It doesn't cover out-of-bound skiing, however. The list has been in statute since 1994, but the supreme court has not had specific language to enact a bail schedule. MR. ANDREWS explained he was looking at AS 05.45.100(c)(5), "knowingly enter upon public or private land from an adjoining ski area when the land has been closed by an owner and is posted by the owner or by the ski area operator under AS 05.45.060(e)(3)." To him, that means "skiing out of bounds." He supports Mr. Swanson's testimony that when an area is posted as "closed" it should jolly well be closed. "If you're gonna go off a cliff, I'd like to see a 'closed' sign there." He would like to see specific language for better legislation and safety. CHAIRMAN KOTT noted that the definition refers to land that is closed and posted "closed." He thinks that covers Mr. Andrews' concern. Number 1662 GARY CUSCIA, President, Eaglecrest Ski Area Board of Directors, testified in Juneau in support of HB 134. We are talking about an area that is closed within a ski area boundary. Imagine that you are a member of a ski patrol and your job is to go into an area, that is presently closed, to do avalanche control work and a few skiers or snowboarders sneak in, you are put in harm's way. Those skiers are in a place that they shouldn't be, and you have to get them out. That is the board's primary concern. Number 1730 CHAIRMAN KOTT closed the meeting to public testimony. Number 1736 REPRESENTATIVE KERTTULA made a motion to move HB 134 from the committee with individual recommendations and the attached fiscal note(s). There being no objection, HB 134 was so moved from the House Judiciary Standing Committee. ADJOURNMENT Number 1782 CHAIRMAN KOTT adjourned the House Judiciary Standing Committee meeting at 3:15 p.m.