Legislature(2003 - 2004)

05/05/2004 09:03 AM STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
SB 354-HUMAN RIGHTS COMMISSION PROCEDURES                                                                                     
                                                                                                                                
Number 1588                                                                                                                     
                                                                                                                                
CHAIR WEYHRAUCH announced that the  next order of business was CS                                                               
FOR SENATE  BILL NO.  354(STA) am(efd fld),  "An Act  relating to                                                               
complaints filed  with, and investigations, hearings,  and orders                                                               
of, the State Commission for  Human Rights; and making conforming                                                               
amendments."                                                                                                                    
                                                                                                                                
Number 1600                                                                                                                     
                                                                                                                                
LISA FITZPATRICK,  Chair, Human Rights Commission,  Office of the                                                               
Governor,  testifying on  behalf of  the commission,  stated that                                                               
the commission opposes the language  of Section 6 - the provision                                                               
that provides the  remedies that the commission can  order when a                                                               
legal discrimination  has occurred -  because it would  take away                                                               
the tools the commission needs to do its job.                                                                                   
                                                                                                                                
MS. FITZPATRICK  mentioned a recent  celebration of the  40 years                                                               
that  the commission  has  been  in existence.    She noted  that                                                               
discrimination is  just as alive  today as  it was 40  years ago.                                                               
She  gave  examples  of  discrimination   and  said  there  is  a                                                               
continuing  need  to eliminate  discrimination  in  Alaska.   She                                                               
opined that the  bill would encroach on  the commission's ability                                                               
to do its job.                                                                                                                  
                                                                                                                                
MS.  FITZPATRICK noted  that, under  current law,  the commission                                                               
has  the   authority  to  order   any  appropriate   relief  when                                                               
discrimination  has occurred.    She  clarified that  appropriate                                                               
relief  isn't  extraordinary  relief,  doesn't  include  punitive                                                               
damages, and doesn't include compensating  the person for his/her                                                               
pain  and suffering.   She  stated, "The  whole premise  of human                                                               
rights laws is simply:  Let  the individual back in the situation                                                               
they  would  have been  in  had  the illegal  discrimination  not                                                               
occurred."  She  noted that the majority of the  cases handled by                                                               
the  commission are  regarding discrimination  in the  workplace;                                                               
therefore,   the  remedies   that  are   relevant  to   workplace                                                               
discrimination are particularly important.                                                                                      
                                                                                                                                
MS. FITZPATRICK  noted that the  bill would allow  the commission                                                               
to order "training of the  employer for discriminatory practices"                                                               
and for the  reinstatement or upgrading of an  individual who has                                                               
been discriminated.   It would  authorize the award of  front pay                                                               
for one  year.  She  said the bill  doesn't take into  account so                                                               
many  types  of relief  that  the  commission -  and  commissions                                                               
around that country - have  been historically empowered to award.                                                               
She offered examples.                                                                                                           
                                                                                                                                
Number 1800                                                                                                                     
                                                                                                                                
MS.   FITZPATRICK  explained   that  back   pay  compensates   an                                                               
individual for the loss of  pay, retrospectively, while front pay                                                               
- which is rarely awarded  - pays an employee prospectively when,                                                               
for   whatever  reason,   it's  not   possible  to   restore  the                                                               
discrimination by restoring the  individual to the situation that                                                               
he/she  would  have  been  in before  the  discrimination.    She                                                               
offered examples.   She noted that the bill would  [allow for] an                                                               
award for a period of one year's  front pay.  She stated that the                                                               
commission  opposes the  one-year limitation  and would  prefer a                                                               
bill with  no limitation  on it,  because "every  situation where                                                               
it's used  is unique."   She  noted that there  has never  been a                                                               
complaint that the  commission has abused its  discretion in this                                                               
regard, and she questioned the reason for the change.                                                                           
                                                                                                                                
Number 1883                                                                                                                     
                                                                                                                                
MS. FITZPATRICK said she has  heard the argument made at previous                                                               
committee hearings that it's important  that individuals know the                                                               
scope of  relief that can  be awarded  against them.   She stated                                                               
the fact is that people do  [know].  She reiterated that the idea                                                               
is to put  the individual back in the position  he/she would have                                                               
been in without the discrimination.   She said, "Because this can                                                               
be so fact-dependent, it's extremely  difficult to create an all-                                                               
purpose list.   But, if you  have an individual and  you have not                                                               
given them  a raise as  a result of  their being a  black person,                                                               
...  a woman,  or disabled,  then you  can reasonably  anticipate                                                               
exactly  what kind  of relief  ... could  potentially be  ordered                                                               
against you."                                                                                                                   
                                                                                                                                
MS.  FITZPATRICK  noted that  a  second  argument heard  is  that                                                               
victims of discrimination  could just take their  cases to court.                                                               
She  explained  that that  is  not  a realistic  alternative  for                                                               
people.   She indicated  that she  doesn't know  why it  would be                                                               
preferable to ship  the people over to the  court's calendar when                                                               
there is  an agency  [to deal with  these issues].   Furthermore,                                                               
she  stated that  it  is  not practical  to  send  people to  the                                                               
courts.    She  explained  that   the  average  value  where  the                                                               
commission  has  found  that   there's  substantial  evidence  to                                                               
proceed is $5,800.   She said there is no  economic incentive for                                                               
a lawyer  to take  the case and  proceed to court  with it.   She                                                               
said, "Individuals cannot  go to small claims  court, because, by                                                               
statute, the  original jurisdiction for  these cases lies  in the                                                               
superior  court.   And  that  is  a  world  apart from  both  the                                                               
commission and from the small claims court forum."                                                                              
                                                                                                                                
MS. FITZPATRICK estimated  450 cases are processed,  and the vast                                                               
majority  of those  cases "settle  out."   She said  most of  the                                                               
cases are  small dollar  settlements; however,  in the  "cases of                                                               
higher value,"  probably only about  20 percent of  the employers                                                               
are represented  by attorneys.   She  said that  "this is  a very                                                               
informal  sort of  a process,"  which gives  people relief.   She                                                               
stated  that  it  doesn't  give   people  anything  beyond  their                                                               
restoration to  their position before the  discrimination, but it                                                               
serves an incredibly valuable function  - both society as a whole                                                               
and individuals.   She said it pains her to  consider that a bill                                                               
has been  introduced which could turn  back the hands of  time on                                                               
discrimination law by taking away  the tools the commission needs                                                               
to do its job and to protect the public.                                                                                        
                                                                                                                                
Number 2038                                                                                                                     
                                                                                                                                
REPRESENTATIVE  BERKOWITZ  noted   that  the  legislative  intent                                                               
section  [in   current  statute]   regarding  the   Human  Rights                                                               
Commission says  that the  statutory scheme is  "to seek  out and                                                               
eradicate discrimination  in employment, in credit  and financing                                                               
practices, in  places of public  accommodations and in  the sale,                                                               
lease or  rental of  real property."   He asked  if SB  354 would                                                               
compromise the  ability of the  Human Rights Commission  to carry                                                               
out the legislative intent.                                                                                                     
                                                                                                                                
MS. FITZPATRICK answered yes.                                                                                                   
                                                                                                                                
Number 2080                                                                                                                     
                                                                                                                                
REPRESENTATIVE BERKOWITZ  moved to adopt Amendment  1, which read                                                               
as follows [original punctuation provided]:                                                                                     
                                                                                                                                
     Page 2, line 26                                                                                                            
                                                                                                                                
          Delete "in the executive director's discretion"                                                                       
          Insert: "with the concurrence of the commission"                                                                      
                                                                                                                                
REPRESENTATIVE LYNN objected.                                                                                                   
                                                                                                                                
REPRESENTATIVE  BERKOWITZ  said  Amendment 1  would  ensure  that                                                               
there are some  checks and balances involved in the  process.  He                                                               
said it  would make sure that  if an executive director  is going                                                               
to  get  rid  of  a  case,  it  is  done  with  the  commission's                                                               
concurrence.                                                                                                                    
                                                                                                                                
CHAIR WEYHRAUCH suggested that the  executive director could send                                                               
letters  to the  commission members  to which  they could  reply.                                                               
There wouldn't necessarily have  to be an affirmative concurrence                                                               
of  the   commission  by   a  vote,  for   example.     He  asked                                                               
Representative  Berkowitz if  he  agrees that  "this  is sort  of                                                               
broad  to allow  the commission  to do  its business  in lots  of                                                               
different respects."                                                                                                            
                                                                                                                                
REPRESENTATIVE BERKOWITZ agreed.   He explained that  if it's not                                                               
particularly onerous  for the director, he  would actually prefer                                                               
that one person not have  the authority to dismiss cases, without                                                               
the concurrence of others.                                                                                                      
                                                                                                                                
Number 2143                                                                                                                     
                                                                                                                                
REPRESENTATIVE  SEATON  commented  that   "that's  in  line  with                                                               
testimony that we had the other day."                                                                                           
                                                                                                                                
REPRESENTATIVE  COGHILL  said he  would  like  to hear  from  the                                                               
department.                                                                                                                     
                                                                                                                                
Number 2158                                                                                                                     
                                                                                                                                
SCOTT  J. NORDSTRAND,  Deputy Attorney  General, Civil  Division,                                                               
Office  of the  Attorney  General, Department  of  Law, said  the                                                               
department  drafted  the bill  to  allow  the discretion  in  the                                                               
executive  director.    He offered  his  understanding  that  the                                                               
commission supports  "the current text."   He said  [Amendment 1]                                                               
would require the commission to  "do concurrence," and he said he                                                               
understands that  the commission does not  support [Amendment 1].                                                               
He   noted  that   Ms.  Fitzpatrick   had  indicated   that  [the                                                               
commission]  prosecutes  Human  Rights  Act  violations  for  the                                                               
state.   He said  that in  the context of  a criminal  case, [the                                                               
department]   gives  the   district  attorney's   office  -   and                                                               
ultimately the attorney  general - the authority  to decide which                                                               
cases  to bring,  based  upon the  needs of  the  office and  the                                                               
evidence that's  available.  He emphasized  that [the department]                                                               
does not  ask for the  concurrence of  the court, at  that point.                                                               
He compared  asking for concurrence  of the commission  to asking                                                               
for concurrence of the court.                                                                                                   
                                                                                                                                
Number 2215                                                                                                                     
                                                                                                                                
REPRESENTATIVE  BERKOWITZ stated  that  it's  not absolutely  the                                                               
case that  prosecutors have absolute discretion  to "not charge."                                                               
He said  there are  some profound  policy requirements  [to meet]                                                               
before cases  can be dismissed.   He  noted that there's  a great                                                               
body of law that has to  do with prosecutorial discretion and the                                                               
abuse of  prosecutorial discretion.   He said the courts  and the                                                               
executive  branch  do intrude  on  how  prosecutors charge.    He                                                               
concluded, "And that analogy, I think,  is a propos in this case,                                                               
because we're  saying if we  don't want a single  individual with                                                               
absolute discretion over whether to pursue or not pursue cases."                                                                
                                                                                                                                
Number 2247                                                                                                                     
                                                                                                                                
MR.  NORDSTRAND responded  that the  whole process  of the  Human                                                               
Rights  Commission  charges  the   executive  director  with  the                                                               
responsibility for investigating the cases.  He said:                                                                           
                                                                                                                                
     This  person  has  the   sole  authority  to  determine                                                                    
     whether there  is 'substantial evidence,' which  is the                                                                    
     gate that opens that allows  someone to even get to the                                                                    
     commission.   So,  to somehow  say  that the  executive                                                                    
     director would have  too much power with  this, when in                                                                    
     fact  they   are  the  ones  themselves   to  make  the                                                                    
     determinations  without the  commission  on whether  or                                                                    
     not there's  a substantial evidence finding  that would                                                                    
     allow anyone to  even ever get to a hearing  - it seems                                                                    
     to me it's six to one or half dozen of another.                                                                            
                                                                                                                                
Number 2273                                                                                                                     
                                                                                                                                
REPRESENTATIVE COGHILL  indicated that the concern  that is being                                                               
addressed  is  that in  the  process  of  making a  complaint,  a                                                               
complainant  may  be left  without  some  recourse or  "some  due                                                               
process beyond this."   He asked Mr. Nordstrand if  he could give                                                               
him some  comfort that  if [Amendment 1]  fails that  that [would                                                               
not happen].                                                                                                                    
                                                                                                                                
MR. NORDSTRAND  responded that if the  executive director chooses                                                               
not to  pursue a case,  the recourse for the  person is to  go to                                                               
court;  however,  the recourse  in  the  Human Rights  Commission                                                               
would end.   He clarified  that the  process of providing  a free                                                               
attorney to represent the person  to go forward through a hearing                                                               
process and,  ultimately, to a  decision by the  commission would                                                               
end.                                                                                                                            
                                                                                                                                
REPRESENTATIVE COGHILL  said he wonders if  having the commission                                                               
"review these things" doesn't give  the complainant at least some                                                               
comfort that  he/she will be heard.   He asked, "Can  you give me                                                               
some reason that that shouldn't happen?"                                                                                        
                                                                                                                                
MR. NORDSTRAND answered, "It certainly  could happen.  We believe                                                               
that  it's ...  more appropriate  for the  executive director  to                                                               
make  that  decision,  because the  executive  director  has  the                                                               
information necessary to  make that decision.  He  said he thinks                                                               
people  may  be  under  the  assumption  that  the  Human  Rights                                                               
Commission  actually  hears  cases  as a  body  that  listens  to                                                               
testimony.  He said that's not  the fact.  He said, "What happens                                                               
is these  cases are  heard before  ... contract  hearing officers                                                               
that are hired - lawyers that are  hired for $100 an hour to hear                                                               
the case.   They  hear all  the evidence;  they evaluate  all the                                                               
evidence;  they  write the  decisions;  they  send a  recommended                                                               
decision to  the commission; the  commission then  considers it."                                                               
He  said to  ask  volunteer  member of  the  commission board  to                                                               
substantively  evaluate  every dismissal  that's  made  is a  big                                                               
challenge.    He  said,  "We  have to  ask  whether  a  voluntary                                                               
commission can do that."                                                                                                        
                                                                                                                                
REPRESENTATIVE COGHILL  asked if  the executive director  is held                                                               
to a protocol.                                                                                                                  
                                                                                                                                
TAPE 04-79, SIDE B                                                                                                            
Number 2382                                                                                                                     
                                                                                                                                
REPRESENTATIVE COGHILL  explained that the reason  he is pursuing                                                               
this  line  of  questioning  is   because  the  issue  of  having                                                               
significant power  vested in the  executive director  "begins the                                                               
whole argument of the remaining amendments."                                                                                    
                                                                                                                                
CHAIR WEYHRAUCH  asked if  Representative Coghill  is maintaining                                                               
his objection.                                                                                                                  
                                                                                                                                
REPRESENTATIVE COGHILL said he still  wants an answer regarding a                                                               
protocol or body of law  that would compel the executive director                                                               
or hold  the executive accountable,  such as a  district attorney                                                               
might be.                                                                                                                       
                                                                                                                                
Number 2345                                                                                                                     
                                                                                                                                
MR. NORDSTRAND responded that the  statute that is being proposed                                                               
in Section  4 provides  that the  executive director  may dismiss                                                               
cases  in accordance  with a  list of  criteria at  the executive                                                               
director's discretion.   He explained  that would mean  that that                                                               
decision would  be subject to review  in the courts for  an abuse                                                               
of  that discretion.   So,  if someone  could establish  that the                                                               
director had,  for some inappropriate reason,  dismissed the case                                                               
and  had  not done  it  meaningfully,  accurately, and  correctly                                                               
pursuant to  the list of  criteria, then the court  could reverse                                                               
the decision and it would be an abuse of discretion situation.                                                                  
                                                                                                                                
Number 2322                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG mentioned  Wagstaff v.  Superior Court.                                                             
In that  case, he  noted, the  superior court  said it  could not                                                               
review a  decision whether  or not to  prosecute a  case, because                                                               
that was a  violation regarding separation of powers.   He stated                                                               
that there  may be  "internal things that  govern whether  a case                                                               
can be  reviewed or  not."   The question  of judicial  review is                                                               
highly  circumscribed by  the separation  of  powers doctrine  in                                                               
that case.   He  offered his understanding  that there  are other                                                               
cases, as well.                                                                                                                 
                                                                                                                                
Number 2282                                                                                                                     
                                                                                                                                
MR. NORDSTRAND replied that that may  be the case, although he is                                                               
not a criminal lawyer and does not profess to be one.  He said:                                                                 
                                                                                                                                
     But, in the  case of administrative law,  which is what                                                                    
     we're talking  about here,  where a  ... representative                                                                    
     of an administrative agency takes  an action that would                                                                    
     violate in some way the  statute, and thereby abuse the                                                                    
     discretion  given  under  the statute,  I  would  argue                                                                    
     that, in fact, the courts  do have the power to address                                                                    
     whether that ... discretion were abused.                                                                                   
                                                                                                                                
REPRESENTATIVE  GRUENBERG said  he thinks  Mr. Nordstrand  should                                                               
"really check  that out," because he  does not think it  would be                                                               
an  abuse  of  discretion  standard,   but  is  a  constitutional                                                               
separation  of powers  standard.   He emphasized  that that's  an                                                               
important difference.                                                                                                           
                                                                                                                                
Number 2233                                                                                                                     
                                                                                                                                
A  roll   call  vote  was  taken.     Representatives  Berkowitz,                                                               
Gruenberg, Seaton, and  Weyhrauch voted in favor  of Amendment 1.                                                               
Representatives  Lynn,  Holm,  and   Coghill  voted  against  it.                                                               
Therefore, Amendment 1 was adopted by a vote of 4-3.                                                                            
                                                                                                                                
Number 2210                                                                                                                     
                                                                                                                                
REPRESENTATIVE BERKOWITZ moved to  adopt Amendment 2, which would                                                               
delete paragraphs (4), (6), (8), and  (9), on page 3, lines 2, 5,                                                               
7, and 8,  and renumber accordingly.  [Amendment  2, as submitted                                                               
to  the  committee  read  "subsections"   where  it  should  read                                                               
"paragraphs".]                                                                                                                  
                                                                                                                                
REPRESENTATIVE HOLM objected.                                                                                                   
                                                                                                                                
REPRESENTATIVE  BERKOWITZ explained  that the  criteria by  which                                                               
the  executive director  "in now  the  commission" would  dismiss                                                               
complaints is  overbroad and, in  some ways, is a  deprivation of                                                               
due process.  He said one  of the criteria he wants eliminated is                                                               
from  paragraph (4),  which would  allow a  determination by  the                                                               
executive  director   that  "a  hearing  will   not  benefit  the                                                               
complainant".  He said that  is paternalistic and he doesn't know                                                               
what that means.  Paragraph (6)  would be deleted by Amendment 2;                                                               
it pertains to a determination  by the executive director that "a                                                               
hearing   will  not   represent  the   best  use   of  commission                                                               
resources".    Representative  Berkowitz remarked,  "Well,  under                                                               
that criteria, ever  the most deserving of cases -  if they might                                                               
tax  the resources  overmuch to  the exclusion  of, for  example,                                                               
other cases  - could  be thrown  out because  they don't  want to                                                               
take  the hard  cases that,  in fact,  might be  most in  need of                                                               
attention."                                                                                                                     
                                                                                                                                
REPRESENTATIVE BERKOWITZ  turned to  paragraphs (8) and  (9), the                                                               
last  two   paragraphs  which  he  proposed   to  delete  through                                                               
Amendment 2.   Paragraph (8)  would allow a determination  by the                                                               
executive  director  that  "the  probability of  success  of  the                                                               
complaint on the merits is  low", while paragraph (9) would allow                                                               
a determination by  the executive director that  "proceeding to a                                                               
hearing  will   not  serve  the  public   interest".    Regarding                                                               
paragraph  (8), Representative  Berkowitz said,  "If you  believe                                                               
that everyone deserves their day  in court, then you shouldn't be                                                               
in  a position  where the  court looks  at you  and says,  "We're                                                               
tossing you out before we get  you, because we don't think you're                                                               
going to  prevail.  That's  prejudging the evidence, and  I think                                                               
that is  ... an unfair way  for any branch of  the justice system                                                               
to  work.   We do  not prejudge  evidence."   Regarding paragraph                                                               
(9), he said  the public interest is determined  in AS 18.80.200,                                                               
and [paragraph  (9)] is "an  overbroad description and  gives too                                                               
much authority."   He added  that it  frankly is an  intrusion on                                                               
the legislative authority that is enshrined in statute.                                                                         
                                                                                                                                
Number 2124                                                                                                                     
                                                                                                                                
MR. NORDSTRAND  stated that the  department thinks that  the four                                                               
provisions [that would  be deleted by Amendment  2] give latitude                                                               
to  the  executive   director  to  do  what   the  federal  Equal                                                               
Employment  Opportunity Commission  (EEOC)  does.   He  explained                                                               
that the EEOC has similar  jurisdiction and "remedies available,"                                                               
and it  proceeds with cases that  "it chooses to believe  are the                                                               
most important, the most egregious,  [and the most] significant."                                                               
He said  that, unlike  the Human Rights  Commission, if  the EEOC                                                               
wants  to bring  a  complaint,  it has  to  "go  downtown to  the                                                               
federal  courthouse and  file a  complaint in  federal court  and                                                               
proceed  forward, with  a  few exceptions."    He stated,  "We're                                                               
trying to  describe discretion  here and  ... obviously  it's ...                                                               
intended to  be an inclusive  list."   He offered the  example of                                                               
the issue of resources, which he  said is a serious issue for the                                                               
commission.  He continued as follows:                                                                                           
                                                                                                                                
     The way the thing is set  up now - with the substantial                                                                    
     evidence test  and the low  standard for  a substantial                                                                    
     finding  of a  discrimination, combined  with the  fact                                                                    
     that there's no  process to ... end  claims for summary                                                                    
     judgment  or  any  other summary  proceeding  prior  to                                                                    
     hearing - essentially, if you  have the merest smidgeon                                                                    
     of evidence of discrimination, you  get a hearing.  And                                                                    
     that has essentially brought the  system ... -- they're                                                                    
     certainly  working more  quickly  than  they have,  but                                                                    
     year's past it took years  to get to a hearing, because                                                                    
     of all  the cases  that were  stacked up.   And  so, we                                                                    
     think that the merits (indisc.)  is a good standard.  I                                                                    
     mean,  ... any  good lawyer  would look  at a  case and                                                                    
     say, "Are we going to win,  or is this a waste of time?                                                                    
     Is  there  really  enough evidence  here  to  win  this                                                                    
     case?"   And if  that's not  the case,  then government                                                                    
     resources need not be used  to pursue the case.  Again,                                                                    
     all of these  folks will have the  same remedy everyone                                                                    
     else does to  go to the courts, should  they choose to,                                                                    
     with  any other  kind of  claim.   But it's  just these                                                                    
     specialized discrimination  claims that have  access to                                                                    
     the  Human Right  Commission.   That's a  good thing  -                                                                    
     that should be  there - but we ... I  think as a policy                                                                    
     matter  ought to  be able  to say  which cases  are the                                                                    
     most  significant to  take to  hearing,  and which  are                                                                    
     not.  And this gives them that power.                                                                                      
                                                                                                                                
Number 2023                                                                                                                     
                                                                                                                                
REPRESENTATIVE BERKOWITZ  responded that  he is troubled  by what                                                               
Mr. Nordstrand said,  because the purpose of  alternative ways of                                                               
pursuing  justice   is  to  make  justice   more  affordable  and                                                               
available.   He said,  "If you're saying  that, because  we don't                                                               
want to  pay for it at  the administrative level people  now have                                                               
to shell  out money to go  to court, what you're  doing is you're                                                               
putting more of  a burden on the court system.   You're making it                                                               
harder for  individuals to seek  regress in  a nonconfrontational                                                               
way  ..., and  I just  reject that."   He  said "this"  would add                                                               
costs to the  court system if done incorrectly  and would deprive                                                               
people of the chance to pursue the justice they think they need.                                                                
                                                                                                                                
Number 1999                                                                                                                     
                                                                                                                                
REPRESENTATIVE HOLM  stated, "I think  that flies in the  face of                                                               
what the courts  ought to be doing, and that  is making decisions                                                               
about  frivolous  law suits  and  frivolous  circumstances."   He                                                               
asked Mr. Nordstrand to discuss  the balance that should be exist                                                               
between  accusation  and  justice  when someone  has  truly  been                                                               
[discriminated against].   He  said it seems  to him  that that's                                                               
where the  balance is and  the assumption  would be made  that an                                                               
[executive]  director  would "get  the  information  at hand"  to                                                               
decide whether [a case] should go  forward to some causation.  He                                                               
said it's easy to "spout out" and  say that the intent is to look                                                               
for  justice,  but  he  pointed out  that  the  accused  deserved                                                               
justice as  well.   He stated,  "I'm trying  to find  that middle                                                               
ground and I think  I tend to err on the  side of having somebody                                                               
oversee it first, just to make that decision."                                                                                  
                                                                                                                                
MR. NORDSTRAND said  the department's view of the  system is that                                                               
it's designed  to provide a  fair outcome  to all of  the parties                                                               
that  appear before  it.   He confirmed  that there  are lots  of                                                               
cases that sometimes are brought  repetitively by the same people                                                               
who  have grievances  that they  want to  play out  in the  Human                                                               
Rights Commission  "or other  forum like this."   He  said, "Now,                                                               
that's not  to say there aren't  lots and lots of  very deserving                                                               
cases that need  the commission's support ... [and  action]."  He                                                               
clarified, "What we're saying is,  if they can focus better their                                                               
resources and their efforts on those  cases, then I think that we                                                               
will have  a better system  overall."  Regarding the  process, he                                                               
asked the  committee to remember  that there's a  cost associated                                                               
with taking every  case to hearing.  The  commission doesn't want                                                               
to do that.   The Department of Law represents  the commission in                                                               
cases where the executive director  finds no substantial evidence                                                               
and the case  gets appealed.  He said, "Well,  the superior court                                                               
-  now based  upon the  decision we've  talked about  ... -  they                                                               
reverse it and  tell the commission, 'Sorry, you've got  to go to                                                               
hearing on  this case.'"  He  clarified that he is  talking about                                                               
cases that did not even  make the substantial evidence test which                                                               
are being required to  be heard.  He said that's  just not a good                                                               
use of  resources and he  thinks the commission would  agree with                                                               
that entirely.                                                                                                                  
                                                                                                                                
REPRESENTATIVE BERKOWITZ  asked if the committee  could hear from                                                               
a representative of the commission.                                                                                             
                                                                                                                                
Number 1865                                                                                                                     
                                                                                                                                
MS. FITZPATRICK said the commission  is under tremendous monetary                                                               
pressure  due to  a backlog  in processing  cases, and  there are                                                               
cases  that the  commission believes  should be  dismissed.   She                                                               
said [the commission] went  from a staff of 22 to  a staff of 15,                                                               
within  the  last  several  years, and  she  estimated  that  the                                                               
current backlog  is 80  cases -  a number that  is growing.   She                                                               
noted that  the backlog was  down to zero  a couple of  years ago                                                               
because of additional funding, but  now that the funding is gone,                                                               
the  commission is  struggling once  again  to keep  up with  the                                                               
caseload.                                                                                                                       
                                                                                                                                
MS.  FITZPATRICK offered  an  example  of a  case  that might  be                                                               
dismissed  under [paragraph  (4)]:   She  said there  was a  case                                                               
where an  individual was offered  by his/her employer all  of the                                                               
relief that he/she  would be entitled to at the  hearing, but the                                                               
individual   somehow  wanted   something  more.     Under   those                                                               
circumstances where the commission  views that the individual has                                                               
received  all of  the benefits  that  would make  them whole,  it                                                               
believes  it  has  to  push  its resources  on  to  other  cases.                                                               
Because of  the fiscal problems  the commission faces,  it cannot                                                               
simply  prioritize  cases,  because   then  people's  cases  just                                                               
languish if  they're not  top priority.   She concluded,  "So, we                                                               
believe   that  this   language   would   actually  benefit   the                                                               
commission."                                                                                                                    
                                                                                                                                
Number 1765                                                                                                                     
                                                                                                                                
REPRESENTATIVE SEATON asked if the  case to which Ms. Fitzpatrick                                                               
referred  wouldn't have  been covered  under  [paragraph (1),  on                                                               
page  2,  lines  27-28,  which   read  as  follows]:    "(1)  the                                                               
complainant's objection  to a proposed conciliation  agreement is                                                               
unreasonable;".                                                                                                                 
                                                                                                                                
CHAIR WEYHRAUCH  announced his intent  to hold SB 354,  return to                                                               
SB 231, recess  to a call of  the chair, and address  SB 354 when                                                               
the committee reconvenes.                                                                                                       
                                                                                                                                
MS.   FITZPATRICK  offered   to  speak   to  "staff"   [regarding                                                               
Representative Seaton's question] during the recess.                                                                            
                                                                                                                                
[SB 354 was heard and held.   The motion to adopt Amendment 2 was                                                               
left pending.]                                                                                                                  

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