Legislature(2005 - 2006)CAPITOL 124

02/09/2005 01:00 PM RESOURCES

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Moved CSHJR 6(FSH) Out of Committee
Heard & Held
Heard & Held
Bills Previously Heard/Scheduled
HB 107-ATTY FEES: HUNTING/FISHING INTERFERENCE                                                                                
1:04:06 PM                                                                                                                    
CO-CHAIR RAMRAS announced  that the next order  of business would                                                               
be HOUSE  BILL NO. 107  "An Act providing  for the award  of full                                                               
actual attorney fees and costs  to a person aggrieved by unlawful                                                               
obstruction or hindrance of hunting,  fishing, or viewing of fish                                                               
or  game;  amending  Rules  79  and 82,  Alaska  Rules  of  Civil                                                               
Procedure;  and  amending Rule  508,  Alaska  Rules of  Appellate                                                               
CO-CHAIR  SAMUELS  moved  to  adopt the  CSHB  107,  Version  24-                                                               
LS0444\F Utermohle, 2/7/05, as a work draft.                                                                                    
REPRESENTATIVE SEATON objected for discussion purposes.                                                                         
The committee took an at-ease from 1:05 PM to 1:09:25 PM.                                                                     
1:09:38 PM                                                                                                                    
JIM  POUND, Staff  to Representative  Jay  Ramras, described  the                                                               
changes made to HB  107.  He said "we added  in language that was                                                               
in  the section  790 which  was  the proceeding  of the  original                                                               
bill."   He  added that  "in  discussions with  the Alaska  State                                                               
Troopers  and the  court system,  these are  additions that  they                                                               
thought would  help, particularly with the  court system's fiscal                                                               
note, possibly bringing it down to zero."                                                                                       
MR. POUND  noted that the  first addition is  on page 2,  lines 4                                                               
and  5, "this  is  based on  a criminal  situation  in which  the                                                               
individual actually  cut a  trap line  and released  the animals,                                                               
but because  of the  existing statute the  only thing  they could                                                               
charge the  individual with was  criminal mischief."   The second                                                               
change, he said, is  on page 2, lines 14 and 15,  and is based on                                                               
a suit  that was recently  settled.  He  said the state  was sued                                                               
after  a fish  and  wildlife enforcement  helicopter disrupted  a                                                               
commercial fishing  operation.   Mr. Pound  said the  change will                                                               
protect police officers and law  enforcement officials from being                                                               
sued for obstruction.                                                                                                           
MR. POUND stated  that regarding full attorney fees,  "in most of                                                               
the cases that we'll be looking  at that's in Section 791, that's                                                               
the original language  of the bill, we are  normally dealing with                                                               
something that [has] already had  a criminal conviction.  This is                                                               
primarily language intended to further  induce individuals not to                                                               
obstruct people  enjoying the Alaska  lifestyle, similar  to what                                                               
the criminal side  of it would be."  Mr.  Pound said the original                                                               
language in  statute contains the term  "intentionally obstruct,"                                                               
which is  described in Black's Law  as he read: "to  do something                                                               
purposefully   and  not   accidentally,"  and   "a  person   acts                                                               
intentionally if he desires to  cause consequences of his acts or                                                               
he  believes  that  consequences  are  substantially  certain  to                                                               
REPRESENTATIVE SEATON  said he noticed that  obstruction offenses                                                               
do  not  apply  to  lawful competitive  practices  among  persons                                                               
engaged in  lawful hunting, fishing,  or trapping.   He expressed                                                               
his concern that the laws  regarding the distance between nets in                                                               
a  gill net  fishery may  result in  unlawful fishing  practices.                                                               
"Therefore,"  he said,  "commercial fishing  in those  situations                                                               
would be  included in this  full award  of attorney fees  for the                                                               
plaintiff."  He asked Mr. Pound if that is correct.                                                                             
1:14:12 PM                                                                                                                    
MR. POUND said he believes Representative Seaton is correct.                                                                    
CO-CHAIR  RAMRAS  closed  public  testimony  after  no  one  came                                                               
forward to testify.                                                                                                             
REPRESENTATIVE SEATON  removed his  objection to the  adoption of                                                               
CSHB 107,  Version 24-LS0444\F Utermohle,  2/7/05,.   There being                                                               
no further objection, Version F was before the committee.                                                                       
CO-CHAIR  SAMUELS moved  to report  CSHB 107,  Version F,  out of                                                               
REPRESENTATIVE SEATON objected.                                                                                                 
REPRESENTATIVE  SEATON said  that  there  could be  unanticipated                                                               
consequences by  including commercial fishermen.   If a fisherman                                                               
is sued  for having nets  too close to another  fisherman's nets,                                                               
the  plaintiff could  get full  attorney fees  and the  defendant                                                               
would  be  limited by  Rule  82  of  the  Alaska Rules  of  Civil                                                               
Procedure.  "So  I do not think that we  have solved that problem                                                               
in this bill," he said.                                                                                                         
REPRESENTATIVE  LEDOUX said  she has  the same  problem with  the                                                               
legislation, and  it "goes beyond  the commercial  fishing aspect                                                               
of  things,   although  I  see   that,  actually,  as   the  most                                                               
significant  problem."    She  said   that  the  ability  of  the                                                               
plaintiff to  get full attorney  fees and the defendant,  even if                                                               
fully exonerated, is  limited to 30 percent of  the attorney fees                                                               
- "that just strikes me as fundamentally unfair."                                                                               
REPRESENTATIVE SEATON  said that  the legislation also  takes out                                                               
the word  "reasonable," so that  there won't be  consideration of                                                               
the number of  lawyers.  The defendant could be  charged full and                                                               
actual  attorney fees  "no matter  how egregious"  the costs  and                                                               
fees  are, he  said.   He also  warned that  "we may  have people                                                               
loading up attorney fees to make  the other person default on the                                                               
case instead of having the case go to court."                                                                                   
1:18:39 PM                                                                                                                    
REPRESENTATIVE GATTO  said a person  suing for $3,000  could have                                                               
attorney fees  build up to $10,000.   Without Rule 82  a litigant                                                               
could hire  a "bank  of attorneys"  knowing he  or she  could get                                                               
those fees  back.   He said  he is concerned  that there  will be                                                               
people not  willing to take a  risk because they could  afford to                                                               
pay judgment but  not attorney fees, and  intimidation will cause                                                               
them to default in the judgment.                                                                                                
1:20:00 PM                                                                                                                    
REPRESENTATIVE  ELKINS said  that he  had the  same concern.   "I                                                               
can't support this."                                                                                                            
1:20:15 PM                                                                                                                    
CO-CHAIR RAMRAS  said, "...let's take  it back and we'll  work on                                                               
it some more, clean it up, and bring it back."                                                                                  
[HB 107 was held over.]                                                                                                         

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