04/28/2003 02:10 PM House JUD

HB 86 - INJUNCTIONS AGAINST PERMITTED PROJECTS                                                                                
                                                                                                                                
Number 1655                                                                                                                     
                                                                                                                                
CHAIR McGUIRE announced that the  next order of business would be                                                               
SPONSOR SUBSTITUTE  FOR HOUSE  BILL NO. 86,  "An Act  relating to                                                               
permits issued by  the state; and amending Rules 65,  79, and 82,                                                               
Alaska Rules of Civil Procedure."                                                                                               
                                                                                                                                
Number 1685                                                                                                                     
                                                                                                                                
REPRESENTATIVE  SAMUELS moved  to  adopt  the proposed  committee                                                               
substitute  (CS)   for  SSHB  86,  Version   23-LS0349\V,  Kurtz,                                                               
4/25/03, as the work draft.   There being no objection, Version V                                                               
was before the committee.                                                                                                       
                                                                                                                                
REPRESENTATIVE GARA asked for a  brief at-ease for the purpose of                                                               
working  with   the  sponsor's   representative  on   a  possible                                                               
amendment to Version V.                                                                                                         
                                                                                                                                
The committee took an at-ease from 4:31 p.m. to 4:35 p.m.                                                                       
                                                                                                                                
Number 1731                                                                                                                     
                                                                                                                                
JIM  POUND,  Staff  to Representative  Hugh  Fate,  Alaska  State                                                               
Legislature, remarked on behalf  of Representative Fate, sponsor,                                                               
that  Version V  maintains  the sponsor's  intent  to "provide  a                                                               
private remedy  to the  permittee or  owner of  a state-permitted                                                               
project   who  is   the  victim   of  frivolous,   obstructionist                                                               
litigation."   The  private remedy  is in  addition to  any other                                                               
penalty or sanction otherwise provided  by law.  Under Version V,                                                               
a person who  initiates or maintains a malicious  claim against a                                                               
state-permitted  project will  be  liable for  damages caused  by                                                               
such a lawsuit should he/she lose  the case.  Version V specifies                                                               
the elements that  would have to be established in  order for the                                                               
person to  be held liable, and  it specifies the type  of damages                                                               
the aggrieved  person would be  able to  seek.  The  elements for                                                               
such a cause  of action are based on concepts  established in law                                                               
for stating a  claim for unlawful civil proceedings  and abuse of                                                               
process.                                                                                                                        
                                                                                                                                
MR. POUND remarked  that [Version V] has two key  benefits.  One,                                                               
it  avoids use  of  the unfamiliar,  potentially ambiguous  terms                                                               
currently found  in SSHB 86.   Two, the  courts would be  able to                                                               
draw  on  existing  case  law  from  Alaska  to  assist  them  in                                                               
interpreting  and applying  the  proposed law.    He assured  the                                                               
committee  that the  civil remedy  provided for  in Version  V is                                                               
narrow  and  focused,  adding  that   "it  would  apply  only  to                                                               
egregious cases  of abusive  civil litigation."   If  adopted, he                                                               
remarked,  Version  V would  not  have  a chilling  or  deterrent                                                               
effect  on  litigants  who would  bring  legitimate,  meritorious                                                               
cases to court.                                                                                                                 
                                                                                                                                
Number 1834                                                                                                                     
                                                                                                                                
REPRESENTATIVE GARA  made a motion to  adopt Conceptual Amendment                                                               
1:  on  page 2, lines 16-17, delete "(A)  without probable cause;                                                               
or (B)", and insert "in bad  faith"; on page 2, delete subsection                                                               
(d)  located  on   lines  23-25.    There   being  no  objection,                                                               
Conceptual Amendment 1 was adopted.                                                                                             
                                                                                                                                
REPRESENTATIVE  SAMUELS suggested  that page  1, line  10, should                                                               
have  the  phrase,   ",  but  not  limited   to"  inserted  after                                                               
"including".                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG  explained  that language  in  Title  1                                                               
defines "including" to mean "including, but not limited to".                                                                    
                                                                                                                                
REPRESENTATIVE  SAMUELS  withdrew  his  suggestion,  which  Chair                                                               
McGuire referred to as Amendment 2.                                                                                             
                                                                                                                                
Number 1940                                                                                                                     
                                                                                                                                
REPRESENTATIVE  SAMUELS moved  to report  the proposed  committee                                                               
substitute  (CS)   for  SSHB  86,  Version   23-LS0349\V,  Kurtz,                                                               
4/25/03,   as  amended,   out   of   committee  with   individual                                                               
recommendations and  the accompanying fiscal notes.   There being                                                               
no  objection,  CSSSHB  86(JUD)   was  reported  from  the  House                                                               
Judiciary Standing Committee.