Legislature(2011 - 2012)CAPITOL 120
04/04/2011 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB168 | |
| HB1 | |
| HB6 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 161 | TELECONFERENCED | |
| += | HB 168 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 1 | TELECONFERENCED | |
| += | HB 6 | TELECONFERENCED | |
HB 168 - INJUNCTION SECURITY: INDUSTRIAL OPERATION
1:09:45 PM
VICE CHAIR THOMPSON announced that the first order of business
would be HOUSE BILL NO. 168, "An Act requiring the amount of the
security given by a party seeking an injunction or order
vacating or staying the operation of a permit affecting an
industrial operation to include an amount for the payment of
wages and benefits for employees and payments to contractors and
subcontractors that may be lost if the industrial operation is
wrongfully enjoined."
1:11:58 PM
REPRESENTATIVE ERIC FEIGE, Alaska State Legislature, sponsor, to
briefly recap, indicated that HB 168 would establish in statute
language similar to that of Rule 65(c) of the Alaska Rules of
Civil Procedure in order to address lawsuits involving resource
development projects, specifically those wherein a party seeks a
restraining order, preliminary injunction, or order vacating or
staying the operation of a permit that affects an industrial
operation, [thereby essentially] requiring the court, when
setting the amount of the required security bond, to consider
the costs associated with that restraining order, preliminary
injunction, or order vacating or staying the operation of a
permit.
REPRESENTATIVE HOLMES noted that a memorandum in members'
packets dated March 21, 2011, from Legislative Legal and
Research Services indicates that if HB 168 is interpreted as
requiring the security bond to include an amount for wages,
benefits, and contract payments, then the bill might also be
interpreted as changing a court rule [because currently the
court may consider including amounts for those items in a
security bond but isn't required to]. She asked whether it's
the sponsor's intention to require that the security bond
include amounts for wages and benefits and contract payments.
REPRESENTATIVE FEIGE said, "[The] intent of the bill is to make
sure that the court at least includes that in their
consideration for the security amount; ... I don't believe it
directs ... them to impose that, particularly, but it does ...
ask that they consider that in the ...."
REPRESENTATIVE HOLMES sought clarification that the bill would
not require the court to include those amounts.
REPRESENTATIVE FEIGE said, "Correct."
REPRESENTATIVE GRUENBERG said, "With that clarification, that
there's not to be any change in the court rule but simply an
admonition, in the judge's discretion, that we'd like that to be
considered, then I don't think a court rule [change] is ...
required, and I feel much more comfortable with the bill."
REPRESENTATIVE FEIGE concurred with Representative Gruenberg's
interpretation.
REPRESENTATIVE GRUENBERG characterized HB 168 as being in line
with Rule 65(c).
1:16:26 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 1,
labeled 27-LS0395\B.2, Bailey, 3/29/11, which read:
Page 1, line 10:
Delete "determined by the court"
Insert "the court considers proper"
REPRESENTATIVE KELLER objected.
REPRESENTATIVE GRUENBERG explained that Amendment 1 provides for
language tracking that of Rule 65(c), and so could further
clarify that the bill is intended to do exactly the same thing
as that court rule.
REPRESENTATIVE FEIGE concurred.
REPRESENTATIVE KELLER offered his understanding, though, that
the term, "determination" constitutes a final judgment, and
expressed a preference for retaining the phrase, "determined by
the court", considering it to be "tighter."
REPRESENTATIVE HOLMES explained that that term, as used in the
bill, doesn't in any way refer to any sort of final judgment,
and instead simply means that the court shall decide what amount
the security bond should be for. Amendment 1 would not change
the meaning of the bill, does not constitute a substantive
change, and would instead simply allow the bill to track the
aforementioned court rule. Adoption of Amendment 1 would also
clarify that the legislature is not trying to change that court
rule, she ventured.
REPRESENTATIVE KELLER predicted that adoption of Amendment 1
would then allow people to make the argument that the bill isn't
necessary because [the situations that are of concern to the
sponsor] would be covered under the court rule. He then sought
clarification from the Department of Law regarding what the
effect of adopting Amendment 1 would be.
1:22:55 PM
TINA KOBAYASHI, Chief Assistant Attorney General - Statewide
Section Supervisor, Oil, Gas & Mining Section, Civil Division
(Juneau), Department of Law (DOL), said she agrees with
Representative Holmes's summation that because the language of
Amendment 1 more closely tracks the language of the court rule,
its adoption would clarify that the proposed statute would not
change the court rule, that the discretion would be left
entirely up to the court. In response to a question, she
offered her belief that under Amendment 1's proposed new
language - "the court considers proper" - the court would simply
continue following its current procedure.
REPRESENTATIVE GRUENBERG observed that the dictionary, which the
courts normally look to, in part defines the term, "determine"
as meaning to find out or come to a decision about something via
investigation, reasoning, or calculation.
REPRESENTATIVE FEIGE, in response to a question, concurred that
that was the meaning he intended when initially including the
phrase, "determined by the court" in HB 168.
REPRESENTATIVE GRUENBERG posited that Amendment 1's proposed new
language merely restates that intent, thereby removing all
question regarding what the bill does.
REPRESENTATIVE KELLER indicated that he still has concerns about
the meaning of Amendment 1's proposed new language.
1:25:51 PM
REPRESENTATIVE HOLMES reiterated that she doesn't consider
Amendment 1 to be effecting a substantive change. Instead, she
ventured, Amendment 1's proposed new language is just another
way of saying what the bill already says, and pointed out that
the bill's sponsor is in agreement. It is seemingly being
argued that the language currently in the bill should be kept
because it means something different than Amendment 1's proposed
new language and that which is currently in the court rule, but
if that's really the case, and it really does mean something
different, then by not adopting Amendment 1, it means that the
bill would indeed be changing a court rule - thereby requiring
an affirmative two-thirds vote. The closer the language of the
court rule is tracked, she opined, then the more likely it is
that the bill isn't going to get struck down as having
inappropriately effected a court rule change. In conclusion,
she urged adoption of Amendment 1.
REPRESENTATIVE KELLER mentioned that he simply didn't want to
change the bill contrary to what the sponsor wants. He then
removed his objection to the motion to adopt Amendment 1.
VICE CHAIR THOMPSON, noting that there were no further
objections, announced that Amendment 1 was adopted.
REPRESENTATIVE GRUENBERG asked the sponsor to consider, as the
bill moves forward, possibly changing it in order to ensure that
its proposed AS 09.40.230(c) would apply fairly to both parties
in a lawsuit; proposed subsection (c) currently reads:
(c) The existence of security under (b) of this
section does not
(1) prohibit a person who is wrongly enjoined or
restrained from obtaining relief that may be available
to that person; or
(2) limit the amount that a party may recover in
the action.
VICE CHAIR THOMPSON questioned how the portion of a security
bond that reflects lost wages and benefits would be distributed
to employees.
1:31:09 PM
DOUG WOOLIVER, Administrative Attorney, Administrative Staff,
Office of the Administrative Director, Alaska Court System
(ACS), explained that if a security bond is posted to protect
the interests of a company that's alleging potential lost wages,
and if that security bond is then forfeited, the court would pay
that bond amount to the party that was enjoined, but the court
wouldn't have any way of knowing who the company should be
reimbursing for lost wages - the decision of who to reimburse
would be left up to the company that received the forfeited
bond.
VICE CHAIR THOMPSON questioned whether a company could simply
pocket that money and not reimburse its employees for wages.
MR. WOOLIVER acknowledged that a company could do that. Again,
the court isn't going to have any of the information necessary
to address the distribution of funds, and so it must be left up
to the receiving party to appropriately reimburse its employees
and subcontractors.
REPRESENTATIVE GRUENBERG ventured that certain types of trusts
and specific court actions could probably be utilized to
mitigate the potential for an enjoined/restrained industrial
operation to abuse the system.
MR. WOOLIVER mentioned that the apportioning of a forfeited
security bond could get somewhat complicated and has the
potential of engendering further litigation.
VICE CHAIR THOMPSON, after ascertaining that no one else wished
to testify, closed public testimony on HB 168.
1:36:38 PM
REPRESENTATIVE KELLER moved to report HB 168, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSHB 168(JUD) was
reported from the House Judiciary Standing Committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB168 Proposed Amendment B.2 03-29-11.pdf |
HJUD 4/4/2011 1:00:00 PM |
HB 168 |
| HB1 CS Version B 04-01-11.pdf |
HJUD 4/4/2011 1:00:00 PM |
HB 1 |
| HB6 CS Version R WORK DRAFT 03-25-11.pdf |
HJUD 4/4/2011 1:00:00 PM |
HB 6 |
| HB6 Draft Amendment Keller 1 03-21-11.pdf |
HJUD 4/4/2011 1:00:00 PM |
HB 6 |
| HB6 Draft Amendment Keller 2 04-04-11.pdf |
HJUD 4/4/2011 1:00:00 PM |
HB 6 |
| HB6 Draft Amendment Keller 3 04-04-11.pdf |
HJUD 4/4/2011 1:00:00 PM |
HB 6 |
| HB6 Explanation of Changes Version T to R 04-04-11.pdf |
HJUD 4/4/2011 1:00:00 PM |
HB 6 |