Legislature(1995 - 1996)

1995-03-06 House Journal

Full Journal pdf

1995-03-06                     House Journal                      Page 0590
HB 234                                                                       
HOUSE BILL NO. 234 by the House Rules Committee by request of                  
the Governor, entitled:                                                        
"An Act relating to administrative adjudication under the                     
Administrative Procedure Act."                                                 
was read the first time and referred to the State Affairs and Judiciary        

1995-03-06                     House Journal                      Page 0591
HB 234                                                                       
The following fiscal notes apply:                                              
Zero fiscal note, Dept. of Administration, 3/6/95                              
Zero fiscal notes (4), Dept. of Commerce & Economic Development,               
Zero fiscal note, Dept. of Environmental Conservation, 3/6/95                  
Zero fiscal notes (2), Dept. of Education, 3/6/95                              
Zero fiscal note, Dept. of Fish & Game, 3/6/95                                 
Zero fiscal note, Dept. of Health & Social Services, 3/6/95                    
Zero fiscal note, Dept. of Labor, 3/6/95                                       
Zero fiscal note, Dept. of Law, 3/6/95                                         
Zero fiscal note, Dept. of Public Safety, 3/6/95                               
Zero fiscal note, Dept. of Transportation & Public Facilities, 3/6/95          
The Governor's transmittal letter, dated March 6, 1995, appears below:         
"Dear Speaker Phillips:                                                        
Under the authority of art. III, sec. 18, of the Alaska Constitution, I am     
transmitting a bill relating to administrative adjudication under the          
Administrative Procedure Act (APA).                                            
This bill would make changes to the APA in order to streamline, and            
cut costs of, administrative adjudication.  Technical amendments to the        
affected sections are also made in the bill for clarification and              
simplification.  The changes made in this bill will assist in reducing         
costs and providing more clarity to participants in administrative             
Sections 1, 2, and 9 of the bill allow the use of certified, rather than       
registered mail.  The latter is more expensive and provides no better          
notice than the former.  Registered mail costs $2 more than certified,         
and is metal-tagged to allow for easier tracing if it is lost in transit; it   
is more appropriately used when the actual contents of the mail are            
valuable or irreplaceable.  Section 1 of the bill also provides for            
service of a statement of issues by mailing to the last address provided       
by the applicant.                                                              

1995-03-06                     House Journal                      Page 0592
HB 234                                                                       
Under existing AS44.62.410(a), the place of a hearing is determined            
by the senate districts as they existed in 1959 (i.e., Southeastern Senate     
District).  In a note following that statute, the revisor of statutes has      
noted that those old senate districts are somewhat similar to the              
boundaries of judicial districts established under AS 22.10.010.               
Section 3 of the bill amends AS44.62.410(a) to change the                      
terminology to instead refer to the comparable judicial district.              
Section 4 of the bill provides for routine telephonic participation in         
hearings.  Current law gives any party veto power over telephonic              
hearings.  In this electronic age, telephonic participation should be          
routinely allowed absent some due process reason compelling personal           
attendance.  This change will allow substantial savings to the state and       
In sec. 5 of the bill, reimbursement for witness subsistence expenses          
is raised from $15 a day, set in 1959, to the compensation amount paid         
to state employees.  The new rate was chosen because court rules for           
witness travel compensation require compensation at "the rate allowed          
state employees."  In sec. 5, the source of that rate is identified.           
Sections 5 and 6 of the bill contain technical changes to make other           
witness fee provisions of AS44.62.430 more understandable.                     
Section 7 of the bill provides express authorization for discovery.            
Presently, the APA provides a limited and cumbersome process for               
taking depositions, and no other discovery is authorized.                      
Section 8 of the bill provides an express statement of the burden and          
standard of proof.  A consistent standard is needed because hearing            
officers are now assigning varying standards of proof: either the              
"preponderance of the evidence" standard or the "clear and convincing          
evidence" standard.  The "preponderance of the evidence" standard is           
the most appropriate.  In  Amerada Hess Pipeline v. Alaska Public             
Utilities Commission, 711 P.2d 1170, 1179 n.14 (Alaska 1986), the             
Alaska Supreme Court held that "[a] party in an administrative                 
proceeding can assume that preponderance of the evidence is the                
standard of proof unless otherwise stated."                                    

1995-03-06                     House Journal                      Page 0593
HB 234                                                                       
The "clear and convincing" standard of proof is rarely used by the             
Alaska courts.  At common law, this higher standard was used in cases          
involving fraud; oral contracts to make a will; specific performance on        
an oral contract; and proceedings to modify written transactions.              
However, Alaska has departed from the common law so that no more               
than a preponderance of the evidence is necessary to establish fraud.          
Dairy Queen v. Travelers Indemnity, 748 P.2d 1169 (Alaska 1988);             
Gabaig v. Gabaig, 717 P.2d 835, 839 n. 4 (Alaska 1986); Saxton v.           
Harris, 395 P.2d 71, 72 (Alaska 1964).  In Cavanah v. Martin, 590           
P.2d 41 (Alaska 1979), the court reversed a lower court decision that          
required clear and convincing proof of a claim against an estate,              
holding that such claims need only be proved by a preponderance of             
the evidence.                                                                  
A judicial determination to waive children's court jurisdiction over a         
juvenile, and to subject the juvenile to adult criminal court jurisdiction,    
is based on a preponderance of the evidence standard of proof.                 
W.M.F. v. State, 723 P.2d 1298 (Alaska 1986).  In Avery v. State, the      
court held that the use of a preponderance standard was appropriate in         
a parole revocation hearing.  616 P.2d 872, 874 (Alaska 1980).  In             
order to adjudicate a child as a child in need of aid (which generally         
results in state custody over the child for a period of years), the            
preponderance standard applies.  Children's Rule 15(c).  The clear and         
convincing standard does not apply unless the court is also terminating        
parental rights.  Id.                                                        
The Alaska Supreme Court has held that the use of the preponderance            
standard, rather than the clear and convincing standard was proper in          
attorney discipline cases.  In re Walton, 676 P.2d 1078, 1085 n. 11          
(Alaska 1983); In re Robson, 575 P.2d 771 (Alaska 1978); cf. In re        
Hanson, 532 P.2d 303 (Alaska 1975) ("clear and convincing" standard           
applied to judicial discipline case).                                          
Section 10 of the bill clarifies the time period for requesting                
reconsideration of an agency decision.  Some respondents (including            
those represented by attorneys) have viewed AS44.62.540(a) as                  
allowing a full 30 days to file a petition for reconsideration, giving no      

1995-03-06                     House Journal                      Page 0594
HB 234                                                                       
time for the agency to review the petition and determine whether to            
order reconsideration.  The amended language will clearly inform a             
respondent of the limited time in which he or she may file a petition          
for reconsideration.  The amended language was taken from                      
comparable court rules.  See Civil Rule 77(k) and App. Rule 506(b).          
I urge your favorable action on this bill.                                     
									Tony Knowles