Legislature(2003 - 2004)

03/24/2004 01:15 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 533 - IF UNREAS. AGENCY DELAY, COURT DECIDES                                                                               
Number 1326                                                                                                                     
CHAIR McGUIRE  announced that the  final order of  business would                                                               
be  HOUSE  BILL  NO.  533,   "An  Act  relating  to  the  state's                                                               
administrative   procedures   and   to  judicial   oversight   of                                                               
administrative matters."                                                                                                        
Number 1368                                                                                                                     
REPRESENTATIVE  SAMUELS moved  to  adopt  the proposed  committee                                                               
substitute  (CS)  for  HB 533,  Version  23-LS1833\D,  Bannister,                                                               
3/24/04, as the work draft.   There being no objection, Version D                                                               
was before the committee.                                                                                                       
Number 1381                                                                                                                     
REPRESENTATIVE  BRUCE  WEYHRAUCH,  Alaska State  Legislature,  as                                                               
chair of the  House State Affairs Standing  Committee, sponsor of                                                               
HB 533, reviewed  the changes encompassed in Version D.   On page                                                               
2,  line 12,  the word  ["significant"  is replaced  by the  word                                                               
"immediate"],  and  the sentence  on  page  2, lines  14-16,  was                                                               
added.    Representative  Weyhrauch   explained  that  for  those                                                               
individuals  who come  before an  administrative  law judge,  the                                                               
decision  is under  advisement for  some  time, occasionally  for                                                               
years or even  decades.  This can be quite  frustrating for those                                                               
individuals  who have  a permit  or decision  pending within  the                                                               
purview of  an agency  hearing officer but  no decision  has been                                                               
reached.   This  legislation would  allow the  individual in  the                                                               
aforementioned situation  to ask the  court to either  enjoin the                                                               
agency to issue a decision sooner  rather than later or take some                                                               
other remedial step to that effect.                                                                                             
REPRESENTATIVE  WEYHRAUCH pointed  out that  HB 533requires  that                                                               
the  individual notify  the  agency that  if  the agency  doesn't                                                               
"move," then  it will  be taken  to court.   The  individual will                                                               
request a  reason why  no ruling is  being made.   Representative                                                               
Weyhrauch posed a situation in  which an individual has "a simple                                                               
summary judgment  action."  An  opposition and a reply  is filed,                                                               
and the  court then  holds oral  arguments.   At that  point, the                                                               
case is  taken under advisement  and the  record is closed.   Six                                                               
months from the  day the case is under advisement,  the court has                                                               
to  rule or  its  checks  are withheld.    Although delays  don't                                                               
happen in  every case, it's  frustrating to the public  when they                                                               
CHAIR McGUIRE  inquired as  to the case  in which  the petitioner                                                               
continues to file  appeals to delay the process  because it's not                                                               
to the petitioner's benefit to obtain an ultimate result.                                                                       
REPRESENTATIVE  WEYHRAUCH acknowledged  that there  are instances                                                               
in which  someone would file  appeal and that individual  wants a                                                               
delay  and doesn't  want a  decision to  ever be  issued.   Those                                                               
individuals don't have  to act under this  legislation.  "There's                                                               
no requirement  that they repair to  a court to force  a decision                                                               
maker  of  an  agency,"  he  clarified.    With  respect  to  the                                                               
Commercial  Fisheries Entry  Commission  (CFEC),  the longer  the                                                               
pending permit is under advisement,  the longer the person has an                                                               
interim permit and  the longer that person can  continue to fish.                                                               
Therefore, it's  in the interest  of someone with zero  points on                                                               
his/her permit  to draw out  the case.   Representative Weyhrauch                                                               
reiterated that  this legislation  doesn't require that  the CFEC                                                               
drag  out a  decision, rather  it's a  remedy in  cases that  are                                                               
where that is occurring.                                                                                                        
REPRESENTATIVE  SAMUELS offered  his belief  that in  the supreme                                                               
court, if  one justice can't  make a decision within  six months,                                                               
the case is passed to the next justice.                                                                                         
REPRESENTATIVE WEYHRAUCH said that  from everything he has heard,                                                               
the [judiciary]  is trying its best  to put forth decisions  in a                                                               
timely manner.                                                                                                                  
Number 1746                                                                                                                     
REPRESENTATIVE  GRUENBERG referred  to AS  22.05.140, which  says                                                               
that a judge may not receive  a salary warrant until an affidavit                                                               
is  signed  specifying  that  no opinion  or  decision  has  been                                                               
uncompleted  or undecided  by the  justice for  a period  of more                                                               
than six months.   In the supreme court or  the court of appeals,                                                               
which are  multi-judge courts, this  means that there must  be an                                                               
opinion    circulating    within    the    [six-month]    period.                                                               
Representative  Gruenberg  said  he  believes  that  [withholding                                                               
checks  until opinions  or decisions  are  completed or  decided]                                                               
REPRESENTATIVE SAMUELS  pointed out that there  are justices with                                                               
work  that is  over  six  months old,  but  who  have signed  the                                                               
affidavit and  received payment.   For those  cases, there  is no                                                               
REPRESENTATIVE  GRUENBERG opined  that the  remedy would  be with                                                               
the Commission on Judicial Conduct  because that's filing a false                                                               
affidavit, which is against the judicial tenets.                                                                                
REPRESENTATIVE GARA agreed  that there are times  when the judges                                                               
have waited too  long to issue opinions.  However,  one must keep                                                               
in mind that  these judges have numerous opinions  before them to                                                               
decide.   He suggested  that the committee  hear from  the Alaska                                                               
Court System (ACS) on this issue.                                                                                               
REPRESENTATIVE GARA  said he believes  the legislation is  a good                                                               
idea, although he has a couple  of concerns.  He pointed out that                                                               
once   the  right   of  unreasonable   delay  is   created,  very                                                               
sophisticated  parties  are going  to  try  to  use this  in  the                                                               
administrative  process.    In  order to  prevent  abuse  of  the                                                               
process,  Representative   Gara  suggested  the   sponsor  exempt                                                               
corporate  tax  and  oil  revenue   cases  from  the  legislation                                                               
because, in  a billion-dollar case,  the parties will  attempt to                                                               
find any  possible advantage in  order to avoid or  delay paying.                                                               
Representative Gara  recalled a  case involving the  Amerada Hess                                                               
Corporation,  which  was  a  multibillion-dollar  case  in  which                                                               
parties  on  both sides  did  everything  possible to  obtain  an                                                               
advantage, and  said he didn't want  to see this happen  under HB
Number 1929                                                                                                                     
REPRESENTATIVE GARA predicted that  once this legislation passes,                                                               
many  of these  motions  will be  filed in  superior  court.   He                                                               
predicted  that.   If this  is  allowed too  liberally, it  could                                                               
delay  the  court   process  further.    He   asked  whether  the                                                               
"unreasonable   delay"   language   could  be   maintained   with                                                               
additional  language specifying  a minimal  amount of  time [that                                                               
would have to pass] before the relief in court could be filed.                                                                  
REPRESENTATIVE WEYHRAUCH  indicated that  the timeline  should be                                                               
on  a case-by-case  basis.   Furthermore, having  exemptions will                                                               
make  it difficult  to establish  a state  policy with  regard to                                                               
which agencies should issue decisions quickly.                                                                                  
REPRESENTATIVE  GARA  acknowledged  that  perhaps  such  language                                                               
isn't  necessary.   He  noted  that a  provision  [in Version  D]                                                               
allows one  to request an alternative  dispute-resolution process                                                               
in superior court.                                                                                                              
REPRESENTATIVE  WEYHRAUCH  clarified  that   the  intent  of  the                                                               
legislation is  to provide a method  by which to force  an agency                                                               
to issue a decision once it  has been pending for an unreasonable                                                               
time.  He went on to say:                                                                                                       
     I think  that the  key point here  is ...  the judicial                                                                    
     inquiry  that's going  to have  to take  place in  this                                                                    
     kind  of thing.   When  was  the case  filed before  an                                                                    
     administrative agency; how complex  was the record; how                                                                    
     long has  the case been  under advisement; is  this the                                                                    
     best forum to re-litigate this  case ...; or do we need                                                                    
     time  for the  administrative agency  to cook  on this;                                                                    
     and  let's  hear  from  the agency,  on  some  sort  of                                                                    
     affidavit,  that they're  diligently  working on  this.                                                                    
     [The judge will  say], "I'm going ... to  deny this and                                                                    
     I'm going to put ...  the case under advisement for six                                                                    
     months  from  today,  and  I want  a  notice  from  the                                                                    
     parties [regarding where the case  is at that point; If                                                                    
     it's still ... being delayed  at that point, then we'll                                                                    
     have another  hearing in  this court  ... to  hear from                                                                    
     the agency  and the parties  about the delay,  and then                                                                    
     I'll make a decision at that point."                                                                                       
     So I  think it's  in the  reasonable discretion  of the                                                                    
     superior court  judge not to clutter  the calendar with                                                                    
     these  kind of  agency appeals,  but to  ... [let]  the                                                                    
     agency  act  on  these  kind  of  appeals  [in]  ...  a                                                                    
     relatively  timely  way  ....     I  think  that  every                                                                    
     reasonable judge  knows that  these agencies  are going                                                                    
     to have some  backlog of cases to deal  with, just like                                                                    
     they do.                                                                                                                   
REPRESENTATIVE  OGG remarked  that  this provides  a nice  escape                                                               
valve.   He further remarked  that he wishes  there was a  way to                                                               
urge the federal judiciary to such quick action.                                                                                
REPRESENTATIVE WEYHRAUCH  said he has worked  with administrative                                                               
agencies who say they can't help  and specify that the agency has                                                               
to  be asked  for  an  expedited decision,  but  that doesn't  go                                                               
anywhere.    He   concluded  by  stating  that   he  agrees  with                                                               
Representative Ogg.                                                                                                             
CHAIR McGUIRE  recalled dealing with the  regulations surrounding                                                               
shellfish farming.   In 1984,  the Aquatic Farm Act  was adopted;                                                               
it made  it clear  that aquatic  farming was  allowed so  long as                                                               
certain criteria  were met.   However, in 2002, some  issues were                                                               
still not  resolved.  Chair  McGuire characterized [HB 533]  as a                                                               
good tool,  but said she  hopes that it  doesn't have to  be used                                                               
Number 2324                                                                                                                     
DAVID STANCLIFF,  Staff to Senator Gene  Therriault, Alaska State                                                               
Legislature, on behalf  of Senator Therriault, the  sponsor of SB
333, companion  bill to  HB 533, informed  the committee  that he                                                               
has some statistics that might  provide some comfort.  He pointed                                                               
out that [the  legislation] is building standards  with regard to                                                               
a  reasonable  timeframe in  order  to  provide guidance  to  the                                                               
courts.   There  is a  diversity  of timeframes  that range  from                                                               
those that  are required by  statute, those that are  required by                                                               
federal law, and others that are open-ended.                                                                                    
Number 2345                                                                                                                     
JAN DeYOUNG, Assistant Attorney  General, Labor and State Affairs                                                               
Section,  Civil Division  (Anchorage), Department  of Law  (DOL),                                                               
informed   the  committee   that  she   handles  employment   and                                                               
administrative law  issues at  the DOL.   She noted  her previous                                                               
experience as  a hearing officer  for the state for  seven years.                                                               
Ms.  DeYoung mentioned  that the  DOL has  been working  with the                                                               
bill sponsor to  address some of the department's  concerns.  The                                                               
DOL  is  pleased to  see  some  of  that work  incorporated  into                                                               
[Version  D], she  remarked,  because a  chief  concern with  the                                                               
original   legislation  was   the  absence   of  notice   to  the                                                               
administrative agency that an individual  involved in the hearing                                                               
was going to go to court to seek a remedy for delay.                                                                            
TAPE 04-47, SIDE B                                                                                                            
Number 2380                                                                                                                     
MS. DeYOUNG relayed,  however, that the DOL  had also recommended                                                               
a minimum  of 30  days before  the individual  could go  to court                                                               
after  providing notice;  that 30-day  timeframe would  allow the                                                               
agency  the opportunity  to  do  respond to  the  concern and  to                                                               
discover the  particular harm being  caused to the  individual by                                                               
the delay  in the  hearing.   She pointed  out that  the judicial                                                               
process isn't going to be fast,  so if a remedy could be obtained                                                               
within 30  days, the individual  would probably fair  much better                                                               
than through  assistance from  the court.   Ms. DeYoung  said she                                                               
doesn't  believe the  15 days  specified in  Version D  is enough                                                               
time  to  allow   the  agency  to  "clean   house";  the  [15-day                                                               
timeframe]  will be  a problem,  particularly for  those agencies                                                               
whose decision  makers are volunteers on  boards and commissions.                                                               
In the aforementioned situation, it  could simply take the entire                                                               
15 days to get in touch with and poll the members.                                                                              
MS.  DeYOUNG reiterated  the DOL's  appreciation  for the  notice                                                               
provision,  as   well  as  for   the  change  in   language  from                                                               
"significant"  to "immediate"  because it  will provide  guidance                                                               
with  regard  to  what  might  be  required  for  the  courts  to                                                               
Number 2273                                                                                                                     
MS. DeYOUNG then turned to the  actual remedies [on page 2, lines                                                               
20-25] that the judge would be  able to award if it appeared that                                                               
there  was  unreasonable  delay.   Enjoining  the  administrative                                                               
proceeding and  determining the matter  would be unusual  for the                                                               
court  to  do,  and  it  remains  unclear  how  the  court  would                                                               
substitute  itself   for  the  agency.     She   questioned  what                                                               
procedures the court would follow  if there is already a hearing.                                                               
In many cases, the courts don't have  the power to do some of the                                                               
things agencies do.                                                                                                             
MS.  DeYOUNG turned  to  the ability  of the  judge  to order  an                                                               
administrative matter  to be handled  by another form  of dispute                                                               
resolution.      Normally,   alternate  dispute   resolution   is                                                               
voluntary.    Furthermore,  parties  often  agree  to  share  the                                                               
expense  when there  is agreement  to proceed  with an  alternate                                                               
form of dispute resolution.  She  inquired as to how a compulsory                                                               
alternate dispute  resolution would  actually work and  who would                                                               
bear the expense of it.                                                                                                         
MS. DeYOUNG  stated that there  are already  other opportunities,                                                               
at least  for some administrative  agencies, to  address concerns                                                               
about delay.   Therefore,  she said,  the DOL  questions possible                                                               
duplication  and inconsistencies  with  some  of those  remedies.                                                               
For  example,  the  administrative procedure  that  provides  the                                                               
superior court  the authority to enjoin  an administrative action                                                               
beyond the scope  of the agency's administrative  powers also has                                                               
the  ability  to  order  the  administrative  agency  to  act  or                                                               
initiate action when it's withholding  that action.  At least for                                                               
Administrative  Procedure  Act  (APA)  agencies,  there  is  some                                                               
recourse  already in  statute  to address  some  of the  concerns                                                               
raised.  For  those agencies not subject to the  APA, statute has                                                               
provisions  addressing  delay and  undue  delay.   Therefore,  it                                                               
would be ideal  if this legislation could  coordinate [with those                                                               
statutes] in  order to make  sure that the remedies  fit together                                                               
without overlap.                                                                                                                
MS. DeYOUNG,  recalling an earlier  comment that it's  not always                                                               
in the  interest of an  individual or a non-government  party for                                                               
the  proceeding to  be decided  quickly,  she said  she found  it                                                               
interesting  to note  that this  legislation is  limited to  non-                                                               
government parties,  because state and political  subdivisions do                                                               
appear as parties  before state agencies.   Ms. DeYoung expressed                                                               
her appreciation to the sponsor and the committee.                                                                              
Number 2098                                                                                                                     
REPRESENTATIVE GRUENBERG offered his  belief that legislation [on                                                               
page  2, line  31, through  page 3,  line 3]  changes the  Alaska                                                               
Rules  of  Appellate  Procedure because  it  makes  the  judicial                                                               
decision not  to issue an order  and keeps the proceeding  in the                                                               
administrative   agency  a   final  "appealable"   order.     The                                                               
aforementioned  will  have a  major  impact  on the  practice  of                                                               
appellate  law   in  so  far   as  this  involves   appeals  from                                                               
administrative  agencies.   He suggested  that if  this provision                                                               
[necessitates] an  amendment to one  of the appellate  rules, the                                                               
bill ought  to be  held over  in order  to obtain  information on                                                               
this   matter    from   someone   practicing   in    this   area.                                                               
Representative  Gruenberg  posited  that the  real  question  is:                                                               
What  is  a  final,  "appealable" order  from  an  administrative                                                               
MR. STANCLIFF  noted his appreciation for  the DOL's suggestions.                                                               
He explained  that the  15-day limit  is based  on the  fact that                                                               
with  most administrative  communications  with  the public,  the                                                               
agency  reserves  30 days  and  requires  the public  to  respond                                                               
within 15  days.   In a  memorandum laying  out concerns,  it was                                                               
brought out that it shouldn't take  an agency 30 days to agree to                                                               
work on  a matter once a  party has approached the  agency saying                                                               
it will exercise this option if  [no action is taken].  He agreed                                                               
that the  language change from ["significant"]  to "immediate" is                                                               
a  good change.     Mr.  Stancliff said,  "On some  of the  other                                                               
issues, we don't think that the  court system will have a problem                                                               
interpreting how  they want  to deal with  the dispute  at hand."                                                               
He remarked  that Mr.  Wooliver testified  in a  Senate committee                                                               
that in most  cases, it's anticipated that the  courts are simply                                                               
going to  say they agree  that it's taking  a long time,  and ask                                                               
the agency to hurry things up.                                                                                                  
MR. STANCLIFF  opined that knowing  this legislation is  in place                                                               
will change the  way agencies do business.   Regarding a possible                                                               
court rule change,  he said that the drafters  were instructed to                                                               
not include anything in the bill  that would require a court rule                                                               
CHAIR  McGUIRE  asked  if  the   15-day  standard  to  which  Mr.                                                               
Stancliff referred was 15 business days or just 15 days.                                                                        
MR. STANCLIFF explained  that the 15 days would begin  on the day                                                               
that the  envelope goes into the  postal system.  He  relayed his                                                               
belief that  [Version D] met in  the middle with the  DOL and met                                                               
its primary goals in this  compromise, but acknowledged that it's                                                               
the committee's prerogative to choose to go further.                                                                            
Number 1854                                                                                                                     
CHAIR  McGUIRE  asked whether  there  is  any concern  that  once                                                               
notice is given, there could be a threat of retribution.                                                                        
MR. STANCLIFF  said he hopes such  wouldn't occur.  He  also said                                                               
that  he could  see how  30 days  could allow  the department  to                                                               
prepare a case, knowing it was going  to court.  He said it would                                                               
also allow  time to  poll the boards  and commissions,  though in                                                               
today's electronic world, 30 days seems more than adequate.                                                                     
REPRESENTATIVE  GARA opined  that  if  the intent  is  to send  a                                                               
message to the  agency to obtain a decision, then  a 15-day limit                                                               
would  probably back  the  agency  into a  corner.   He  pondered                                                               
whether 30 days  would, in a more complex case,  provide time for                                                               
the agency to issue a decision.                                                                                                 
MR. STANCLIFF acknowledged that to be a consideration.                                                                          
REPRESENTATIVE GRUENBERG  noted that Rule 42(c)(3)  of the Alaska                                                               
Rules of Civil Procedure reads in part:                                                                                         
     Notice of  change of  judge is  timely if  filed before                                                                    
     the commencement  of trial and  within five  days after                                                                    
     notice that  the case has  been assigned to  a specific                                                                    
REPRESENTATIVE  GRUENBERG recalled  that  the  courts have  ruled                                                               
that  a person  looses his/her  right if  he/she hasn't  actually                                                               
filed the  document in court on  that date.  Therefore,  it's not                                                               
enough to  put it  in the  mail on that  date.   This legislation                                                               
refers to  providing the  state agency  written notice,  which he                                                               
pointed out  may be read  as having  filed the document  with the                                                               
agency on  that date.   This is a  very ambiguous term,  he said.                                                               
Therefore, if the  intent is to have mailed  the [document], then                                                               
that should be specified so that there is no question.                                                                          
REPRESENTATIVE  GRUENBERG referred  to Mr.  Stancliff's testimony                                                               
that there  is no intent to  impact the court rules.   He offered                                                               
his belief that the language on  page 2, line 31, through page 3,                                                               
line 3,  seems problematic because  it may be  saying, "appealing                                                               
the  failure of  the court  to provide  relief".   Therefore, the                                                               
language,  "as  if  the  person  had not  filed  a  petition"  is                                                               
meaningless  because  the  appeal   is  occurring  because  of  a                                                               
decision by the superior court.                                                                                                 
Number 1634                                                                                                                     
REPRESENTATIVE OGG said the language  on page 2, line 31, through                                                               
page 3, line  3, seems to say that if  the superior court decides                                                               
the  party isn't  eligible for  judicial relief  under subsection                                                               
(a) of  Section 2, then the  party has the right  to continue the                                                               
administrative procedure and make any  other appeal it has to the                                                               
court.  He surmised that  Representative Gruenberg is saying that                                                               
if the  superior court  makes a decision  that is  improper under                                                               
this statute,  then the party would  also have the right  to take                                                               
the superior  court decision through  the [supreme]  court route.                                                               
He  emphasized  that  [the  party]  isn't  denied  anything,  and                                                               
therefore he finds the language to be clear.                                                                                    
REPRESENTATIVE GRUENBERG  highlighted the use of  the term "right                                                               
of  appeal", and  said,  "You wouldn't  necessarily  be taking  a                                                               
right  of appeal  from that,  you'd be  taking a  petition for  a                                                               
review."    The decision  of  the  superior  court to  allow  the                                                               
administrative agency to  go forward isn't a  final decision, and                                                               
therefore "you can't quote appeal from  that, you can only take a                                                               
petition for review," he added.                                                                                                 
MR. STANCLIFF offered  to research this issue, and  noted that he                                                               
is open to a better way of achieving the earlier-stated intent.                                                                 
[HB 533, Version D, was held over.]                                                                                             

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