Legislature(2003 - 2004)

05/06/2004 09:08 AM STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
SB 354-HUMAN RIGHTS COMMISSION PROCEDURES                                                                                     
                                                                                                                                
Number 1749                                                                                                                     
                                                                                                                                
CHAIR WEYHRAUCH announced that the  last 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."                                                                                                                    
                                                                                                                                
CHAIR WEYHRAUCH reminded  the committee that the  motion to adopt                                                               
Amendment 2  on May 5,  2004, had been  left pending in  order to                                                               
wait   for  response   from   Lisa   Fitzpatrick,  Human   Rights                                                               
Commission, to questions from the  committee.  [Amendment 2 would                                                               
delete paragraphs (4), (6), (8), and  (9), on page 3, lines 2, 5,                                                               
7, and 8, and renumber accordingly.]                                                                                            
                                                                                                                                
Number 1785                                                                                                                     
                                                                                                                                
LISA FITZPATRICK,  Chair, Human Rights Commission,  Office of the                                                               
Governor, responding  to the committee's  questions on  behalf of                                                               
the commission, indicated that the  commission is concerned about                                                               
leaving  in  language  [on  page  3,  paragraphs  (6)  and  (9)].                                                               
Paragraph (6) read:   "(6) a hearing will not  represent the best                                                               
use  of  commission  resources;".   Paragraph  (9)  read:    "(9)                                                               
proceeding  to a  hearing will  not serve  the public  interest."                                                               
She explained that the commission  is concerned that its caseload                                                               
is becoming  overwhelming again,  to the point  of backlog.   She                                                               
offered an example where an individual  may only be entitled to a                                                               
nominal  amount  of relief  and  it  may  not  be in  the  public                                                               
interest to proceed to  a hearing on a case like  that.  She said                                                               
the  commission  would  like  some   latitude  to  exercise  some                                                               
discretion in the degree to which  a caseload is worked, in order                                                               
to "be successful in housekeeping the caseload."                                                                                
                                                                                                                                
MS. FITZPATRICK, in response to  a request for clarification from                                                               
Representative   Seaton,   said   the   commission   would   like                                                               
[paragraph] (6)  and either [paragraphs]  (8) or (9) [on  page 3]                                                               
to remain in the bill.                                                                                                          
                                                                                                                                
Number 1970                                                                                                                     
                                                                                                                                
SCOTT  J. NORDSTRAND,  Deputy Attorney  General, Civil  Division,                                                               
Office of  the Attorney General,  Department of Law,  in response                                                               
to  a question  from Representative  Gruenberg as  to whether  he                                                               
sees  any  benefit in  keeping  both  [paragraphs] (6)  and  (9),                                                               
answered that  the department  would defer  to the  commission on                                                               
what  it wants  in terms  of  its prosecutorial  discretion.   He                                                               
stated that the  department agrees with the  commission that "the                                                               
necessity of number (8) is very important."                                                                                     
                                                                                                                                
Number 1980                                                                                                                     
                                                                                                                                
CHAIR WEYHRAUCH  directed attention to Amendment  2 and clarified                                                               
that the committee  is faced with deleting  [paragraph] (4), [and                                                               
is considering] leaving  in [paragraph] (8).  He  said, "Then the                                                               
committee has a policy decision to  make on whether [to] leave in                                                               
[paragraphs] (6) and (9)."                                                                                                      
                                                                                                                                
Number 1995                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG  moved [Amendment 1] to  Amendment 2, to                                                               
delete  from Amendment  2, [paragraph]  (8).   He explained  that                                                               
that would keep [paragraph] (8) in the bill.                                                                                    
                                                                                                                                
CHAIR  WEYHRAUCH offered  his understanding  that  by leaving  in                                                               
[paragraph] (8) - which read,  "(8) the probability of success of                                                               
the complaint on the  merits is low; or" - the  concern is that a                                                               
prejudgment would be made without  really hearing the alternative                                                               
side to the story.                                                                                                              
                                                                                                                                
REPRESENTATIVE  GRUENBERG  interjected,  "No, that's  not  it  at                                                               
all."                                                                                                                           
                                                                                                                                
CHAIR WEYHRAUCH clarified  that that was a concern  that had been                                                               
stated by a previous testifier.                                                                                                 
                                                                                                                                
REPRESENTATIVE GRUENBERG stated:                                                                                                
                                                                                                                                
     Any litigator needs to weigh  the merits of their case,                                                                    
     and if  they feel they  have a very low  probability of                                                                    
     success, they  definitely need  to have  the discretion                                                                    
     not to pursue it or,  if they're a defendant, to settle                                                                    
     the matter.   This is  the heart of being  an attorney.                                                                    
     It's  bad policy  to force  litigation when  there's no                                                                    
     chance of success; that's just not good.                                                                                   
                                                                                                                                
CHAIR  WEYHRAUCH offered  his  understanding  that the  executive                                                               
director  would  determine  the probability  of  success  of  the                                                               
complainants, based on merits.                                                                                                  
                                                                                                                                
REPRESENTATIVE GRUENBERG  responded, "I would hope  ... that this                                                               
is really a  form of litigation, and it may  be a legal question,                                                               
it may  be that  the facts  are weak.   And ...  if it's  a legal                                                               
question  I  assume  the commission  director  would  be  getting                                                               
advice from the assistant attorney general."                                                                                    
                                                                                                                                
Number 2083                                                                                                                     
                                                                                                                                
REPRESENTATIVE SEATON told Chair Weyhrauch:                                                                                     
                                                                                                                                
     As the bill's originally there,  I agreed with you, but                                                                    
     now that we've  amended it so that there has  to be ...                                                                    
     concurrence  of  the  commission, I  think  that  we've                                                                    
     taken  care  of  the   arbitrariness  of  an  executive                                                                    
     director.   So,  there's  got to  be that  concurrence.                                                                    
     So,  if ...  the facts  were being  ... misjudged,  the                                                                    
     commission could  say, "No, we  need to take a  look at                                                                    
     this  anyway."    So, I  think  I'm  not  uncomfortable                                                                    
     leaving that one in with the previous amendment.                                                                           
                                                                                                                                
Number 2140                                                                                                                     
                                                                                                                                
CHAIR  WEYHRAUCH  clarified that  [Amendment  1]  to Amendment  2                                                               
would  delete [paragraph]  (8) from  Amendment  2.   He asked  if                                                               
there was  any objection to  Amendment 1  to Amendment 2.   There                                                               
being none, it was so ordered.                                                                                                  
                                                                                                                                
CHAIR  WEYHRAUCH stated  that the  question before  the committee                                                               
now was whether to delete [paragraph] (6) or (9).                                                                               
                                                                                                                                
Number 2150                                                                                                                     
                                                                                                                                
REPRESENTATIVE  SEATON noted  that  paragraphs (6)  and (9)  have                                                               
subtle  differences;  the  former addresses  finance,  while  the                                                               
latter addresses  the public  interest.   He suggested  that they                                                               
both be  removed from  Amendment 2, thereby  leaving them  in the                                                               
bill.                                                                                                                           
                                                                                                                                
Number 2170                                                                                                                     
                                                                                                                                
REPRESENTATIVE  BERKOWITZ stated  his  preference  to leave  both                                                               
paragraphs  (6) and  (9) in  [Amendment 2].   He  noted that  the                                                               
cases in question are those  brought by an individual; therefore,                                                               
there could  conceivable be instances  where the  public interest                                                               
is  marginally  served.    Having   been  a  prosecutor  who  has                                                               
dismissed cases  because they  have been  too expensive,  he said                                                               
that doing  so is  something that  must be  noted.   He indicated                                                               
that  if he  had to  pick one  of the  paragraphs to  delete from                                                               
Amendment 2, it would be [paragraph] (6).                                                                                       
                                                                                                                                
CHAIR  WEYHRAUCH suggested  combining  [paragraphs]  (6) and  (9)                                                               
with an "or".                                                                                                                   
                                                                                                                                
REPRESENTATIVE GRUENBERG  said he would like  to keep [paragraph]                                                               
(6) in the bill [thus removing  it from Amendment 2] for the same                                                               
reason Representative  Berkowitz just stated.   He said  he would                                                               
like to further  discuss whether to retain  or delete [paragraph]                                                               
(9).  He asked if the two  paragraphs could be addressed one at a                                                               
time.                                                                                                                           
                                                                                                                                
Number 2244                                                                                                                     
                                                                                                                                
REPRESENTATIVE  HOLM concurred  with  Representative Seaton  that                                                               
there is oversight by the commission.   He said, "It would appear                                                               
to  me you'd  want to  keep this  in so  that you  wouldn't -  as                                                               
Representative Berkowitz says - ...  have cases where it would be                                                               
so  terribly [expensive]  you couldn't  afford to  do them."   He                                                               
noted,  "The State  of Alaska  - we  don't print  the money;  the                                                               
[federal government] prints the money ...."                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG   [moved  to   adopt  Amendment   2  to                                                               
Amendment 2], to delete "(6)".                                                                                                  
                                                                                                                                
CHAIR WEYHRAUCH asked  if there was any objection  to Amendment 2                                                               
to Amendment  2.   [No objection  was stated  and Amendment  2 to                                                               
Amendment 2 was treated as adopted.]                                                                                            
                                                                                                                                
Number 2305                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG said he would  like at least one example                                                               
of  the kind  of  case  that would  fall  under  the category  of                                                               
[paragraph (9)].                                                                                                                
                                                                                                                                
Number 2317                                                                                                                     
                                                                                                                                
MR.  NORDSTRAND said  he  thinks  the commission  would  be in  a                                                               
better position  to talk  about examples  of cases.   He  said he                                                               
thinks the administration would  be comfortable in keeping either                                                               
[paragraph]  (6) or  (9).   He said  if [paragraph]  (6) is  more                                                               
specific   and  therefore   "more  palatable,"   that  would   be                                                               
acceptable.  He  stated, "There may be circumstances ...  - and I                                                               
don't have  an example for you  - where in the  public interest a                                                               
case should be  dismissed.  And it might be  easy to characterize                                                               
it as a resource issue, and  it might be better to [require] them                                                               
... to  say, 'Yes, it  is, in fact,  in the public  interest, and                                                               
here's why.'"                                                                                                                   
                                                                                                                                
REPRESENTATIVE BERKOWITZ asked, "Why  was this section drafted in                                                               
there?"                                                                                                                         
                                                                                                                                
MR. NORDSTRAND answered that the  Department of Law tried to come                                                               
up  with a  list that  made sense,  in terms  of what  discretion                                                               
should be exercised.   He noted that some  original language said                                                               
that  [cases] may  be dismissed  for administrative  convenience.                                                               
He  said that  language was  problematic for  the Senate  and was                                                               
removed.   He explained  that there was  some thought  that there                                                               
shouldn't  be  limits, and  an  effort  was  made to  find  "some                                                               
description of discretion that we could be comfortable with."                                                                   
                                                                                                                                
REPRESENTATIVE GRUENBERG asked Ms.  Fitzpatrick for an example of                                                               
"something that would fall in  that category [that] wouldn't fall                                                               
in some other category."                                                                                                        
                                                                                                                                
TAPE 04-80, SIDE A                                                                                                            
Number 2378                                                                                                                     
                                                                                                                                
MS. FITZPATRICK  offered an  example where  there is  no monetary                                                               
loss to  the individual  but the  situation has  been remediated.                                                               
She said  that might be  a situation that could  conceivably fall                                                               
under the ambit of [paragraph] 9.                                                                                               
                                                                                                                                
REPRESENTATIVE  GRUENBERG  said that  satisfies  him.   He  asked                                                               
Representative Berkowitz for his feedback.                                                                                      
                                                                                                                                
Number 2324                                                                                                                     
                                                                                                                                
REPRESENTATIVE BERKOWITZ responded:                                                                                             
                                                                                                                                
     When you  are making a prosecutorial  decision, I think                                                                    
     it's  fundamentally  incompatible to  smith  individual                                                                    
     justice, which  is what  we do  in our  justice system,                                                                    
     ...  taking a  step back  and saying,  "Well, how  does                                                                    
     this fit in the best interest of the system?"                                                                              
                                                                                                                                
     I can think  of a circumstance ...,  for example, where                                                                    
     someone has  been horribly discriminated against  by an                                                                    
     institution  that's  vitally  important to  the  state.                                                                    
     And what  do [we] say  to that  person?  "Oh  no, we're                                                                    
     not going to  pursue your case, because  it might bring                                                                    
     injury to an institution  that's of vital importance to                                                                    
     the  state."   And  so,  ... we're  going  to deny  the                                                                    
     individual justice, because  the state's best interests                                                                    
     aren't served.   So, I think deletion  of [paragraph] 9                                                                    
     from the bill is appropriate.                                                                                              
                                                                                                                                
MR. NORDSTRAND  reiterated that the  department will  support the                                                               
commission's position.                                                                                                          
                                                                                                                                
Number 2274                                                                                                                     
                                                                                                                                
REPRESENTATIVE  COGHILL asked,  "If  we  delete this  [paragraph]                                                               
out, would  it take  away the discretion  for that  very scenario                                                               
that  the commissioner  brought before  us?"   He indicated  that                                                               
what is  being talked about  is "a dismissal  without prejudice."                                                               
He said, "I  understand the other extremity of  the argument, but                                                               
there's  also a  place where  satisfaction has  been brought  and                                                               
we're  still compelled  to take  action."   He indicated  that he                                                               
wouldn't  worry about  deleting the  language if  he had  comfort                                                               
from  the commissioner  that  the discretion  would  still be  in                                                               
place.                                                                                                                          
                                                                                                                                
Number 2213                                                                                                                     
                                                                                                                                
CHAIR  WEYHRAUCH clarified  that  the previously  stated idea  to                                                               
delete paragraph (9)  from Amendment 2 would  be called Amendment                                                               
3  to Amendment  2.   He  asked  if there  was  any objection  to                                                               
Amendment 3 to Amendment 2.                                                                                                     
                                                                                                                                
REPRESENTATIVE COGHILL responded:                                                                                               
                                                                                                                                
     Only with  one caveat  that if we  keep the  wording of                                                                    
     [paragraph]   (6)  in   there,  that   it's  with   the                                                                    
     understanding  that, if  there is  remedy found  in ...                                                                    
     the circumstances  given that that's what  that applies                                                                    
     to.  So, I won't object.                                                                                                   
                                                                                                                                
REPRESENTATIVE GRUENBERG  said, "I  think that's  the legislative                                                               
history."                                                                                                                       
                                                                                                                                
CHAIR  WEYHRAUCH  asked  again  if there  was  any  objection  to                                                               
Amendment 3 to Amendment 2.                                                                                                     
                                                                                                                                
Number 2176                                                                                                                     
                                                                                                                                
REPRESENTATIVE BERKOWITZ objected.                                                                                              
                                                                                                                                
Number 2165                                                                                                                     
                                                                                                                                
A roll call  vote was taken.  Representatives  Holm, Coghill, and                                                               
Lynn   voted  in   favor   of  Amendment   3   to  Amendment   2.                                                               
Representatives   Berkowitz,  Gruenberg,   and  Weyhrauch   voted                                                               
against it.   Therefore, Amendment 3  to Amendment 2 failed  by a                                                               
vote of 3-3.                                                                                                                    
                                                                                                                                
Number 2132                                                                                                                     
                                                                                                                                
CHAIR  WEYHRAUCH  asked  if  there   was  objection  to  adopting                                                               
Amendment 2, as amended.   [The objection to Amendment 2, without                                                               
amendments, originally  stated by Representative Holm  during the                                                               
previous  hearing on  SB  354, on  May 5,  2004,  was treated  as                                                               
withdrawn.]    There  being  no  objection  to  Amendment  2,  as                                                               
amended, it was so ordered.                                                                                                     

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