Legislature(2003 - 2004)

05/13/2003 08:07 AM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
          HB 86-INJUNCTIONS AGAINST PERMITTED PROJECTS                                                                      
                                                                                                                                
REPRESENTATIVE HUGH  FATE, prime sponsor  of HB 86,  told members                                                               
that for too long, properly  permitted projects have been delayed                                                               
before  ground is  ever broken.  Projects are  often put  on hold                                                               
because  our   current  [legal]  system  allows   individuals  or                                                               
entities  to  stop  projects  without  a  legitimate  reason  and                                                               
without any  serious consequences. Adding  the language in  HB 86                                                               
to  the  code  of  civil  procedure means  that  those  who  file                                                               
malicious or  bad faith claims  in an  attempt to stop  a project                                                               
must realize that  the economic effects of their  actions will be                                                               
increased. This bill is written to  give the defendant a cause of                                                               
action  and to  provide guidance  to the  court when  determining                                                               
damages.                                                                                                                        
                                                                                                                                
REPRESENTATIVE  FATE  said  in  most cases,  when  a  project  is                                                               
permitted,  the  contractor  begins  the  process  of  purchasing                                                               
materials, hiring  subcontractors and employees,  and essentially                                                               
commits to  go to work. The  economic damage of even  a temporary                                                               
forced work  stoppage far exceeds  attorney and court  fees. This                                                               
bill  requires  the responsible  party  or  plaintiffs to  assume                                                               
economic   responsibility  for   their  actions   if  the   court                                                               
determines the action was improper.  He said this legislation has                                                               
been  closely   scrutinized  and   has  been  determined   to  be                                                               
constitutional,  legally clear,  and  it  contains no  provisions                                                               
that  will violate  due  process. He  emphasized  the court  will                                                               
determine whether the cause or action was improper.                                                                             
                                                                                                                                
SENATOR THERRIAULT asked if a court  would have to dismiss a case                                                               
and  declare  it  to  be  malicious  and  ungrounded  before  the                                                               
permittee could initiate the civil action.                                                                                      
                                                                                                                                
MR.  JIM POUND,  staff to  Representative Fate,  said this  would                                                               
happen at  the injunctive part  of the process. If  an injunction                                                               
were granted, which is an  extensive process, the cause of action                                                               
would fall  into place when  the determination was made  that the                                                               
case was based on unfounded, bad faith, or malicious claims.                                                                    
                                                                                                                                
SENATOR THERRIAULT asked  if he was granted a  permit through the                                                               
agency process  and someone  moved for  an injunction,  which the                                                               
court denied, whether  he would then make a claim  in civil court                                                               
that the filing  for injunctive relief was a bad  faith action or                                                               
whether  the court  would  have  to make  a  proclamation on  the                                                               
request for  injunctive relief before  he could initiate  a civil                                                               
action.                                                                                                                         
                                                                                                                                
REPRESENTATIVE FATE said his understanding  is that a plaintiff's                                                               
filing for injunctive relief will not  be granted by the court if                                                               
the court  finds the cause of  action was filed in  bad faith. If                                                               
injunctive  relief   is  not  granted,  the   project  continues.                                                               
However,  that  does not  stop  the  court from  determining  the                                                               
plaintiff  had just  cause  in  filing the  cause  of action  for                                                               
injunctive relief.  In that event,  it is likely the  court would                                                               
rule for injunctive  relief, in which case there  would either be                                                               
a  delay or  the project  would be  stopped. The  beauty of  this                                                               
piece  of legislation  is that  it actually  allows the  court to                                                               
determine whether the  cause of action was filed in  bad faith or                                                               
was malicious.                                                                                                                  
                                                                                                                                
CHAIR  SEEKINS  said  under  normal  circumstances,  if  a  court                                                               
determines  that the  plaintiff  is liable  under  this law,  the                                                               
court would  initiate damages  at a damages  hearing. If  not, it                                                               
would  be  incumbent upon  the  defendant's  attorney to  file  a                                                               
motion for  damages. He said  he has observed that  when lawsuits                                                               
are  determined  by  the  court  to  be  frivolous,  damages  are                                                               
assessed at meetings with the clerk of the court.                                                                               
                                                                                                                                
REPRESENTATIVE  FATE  said  this  legislation  should  act  as  a                                                               
deterrent  because the  liability  for filing  a  lawsuit in  bad                                                               
faith will increase.                                                                                                            
                                                                                                                                
SENATOR  FRENCH  offered  an amendment  [Amendment  1]  and  told                                                               
members the U.S.  Supreme Court has provided  some good direction                                                               
in this  area. His amendment  is an  attempt to comport  with the                                                               
U.S.  Supreme  Court's position  on  these  lawsuits. Second,  he                                                               
believes the  amendment will  help shift the  focus to  the legal                                                               
merit of a  claim and away from the subjective  intentions of the                                                               
person filing it.                                                                                                               
                                                                                                                                
SENATOR FRENCH moved to adopt Amendment 1.                                                                                      
                                                                                                                                
CHAIR SEEKINS objected.                                                                                                         
                                                                                                                                
SENATOR   FRENCH  said   the  amendment   would   make  a   small                                                               
modification  to page  2, line  8,  by changing  the language  to                                                               
read:                                                                                                                           
                                                                                                                                
        the person initiates or maintains an objectively                                                                        
     baseless legal or administrative claim.                                                                                    
                                                                                                                                
He said that he and  Representative Fate discussed the difficulty                                                               
of  defining "objectively  baseless" but  the U.S.  Supreme Court                                                               
has defined that  term as a case in which  no reasonable litigant                                                               
could  reasonably expect  success on  the  merits. He  said if  a                                                               
person  brings a  lawsuit on  grounds with  no legal  merit, that                                                               
person should  be held accountable.  His amendment  would clarify                                                               
that the  court first looks at  the legal merits of  the case and                                                               
then look at  the intention of the person who  filed the case. He                                                               
noted  that Amendment  1  comports with  the  U.S. Supreme  Court                                                               
decision written  by Justices  Scalia, Thomas,  Rehnquist, White,                                                               
Blackmun, Kennedy, and Souter.                                                                                                  
                                                                                                                                
CHAIR SEEKINS asked Senator French  if he means that if Amendment                                                               
1 is not  adopted, a person's rights would be  violated under the                                                               
U.S. Constitution.                                                                                                              
                                                                                                                                
SENATOR FRENCH  said his intent  is to get  the bill as  close as                                                               
possible to what he sees as "the state of the law."                                                                             
                                                                                                                                
CHAIR SEEKINS  continued, "The  state of  the law  regarding that                                                               
particular case that is cited, in other words."                                                                                 
                                                                                                                                
SENATOR FRENCH replied, "Exactly. The  case where you sue - where                                                               
you assess damages  against somebody who has gone  to court under                                                               
a [indisc.] citizen."                                                                                                           
                                                                                                                                
CHAIR SEEKINS asked if the  state could maintain these conditions                                                               
under paragraph  (c) without  running afoul  of the  U.S. Supreme                                                               
Court.                                                                                                                          
                                                                                                                                
SENATOR FRENCH said  he is just trying to make  the bill a little                                                               
bit better.                                                                                                                     
                                                                                                                                
SENATOR  THERRIAULT questioned  how  the amendment  would fit  on                                                               
page 2, line 8.                                                                                                                 
                                                                                                                                
SENATOR  FRENCH said  he was  referring  to CS  SSHB 86(JUD)  am,                                                               
version W.A.                                                                                                                    
                                                                                                                                
CHAIR  SEEKINS  asked  Representative  Fate his  opinion  of  the                                                               
amendment.                                                                                                                      
                                                                                                                                
REPRESENTATIVE FATE told  members his only concern is  that he is                                                               
not  aware of  the U.S.  Supreme Court  case that  Senator French                                                               
referred  to. He  expressed concern  that  using two  adjectives,                                                               
"baseless" and "objectively," will add confusion.                                                                               
                                                                                                                                
CHAIR   SEEKINS  maintained   his  objection   to  adopting   the                                                               
amendment.                                                                                                                      
                                                                                                                                
SENATOR THERRIAULT  asked Senator  French if  it is  necessary to                                                               
include the word "objectively."                                                                                                 
                                                                                                                                
SENATOR FRENCH said he believes  including the word "objectively"                                                               
will force the court to look  at the legal arguments and stay one                                                               
step removed from the person  filing the claim. He explained that                                                               
he  is concerned  about separating  the legal  argument from  the                                                               
person who filed  it. He said the person who  files a lawsuit may                                                               
have an  irrational hatred of  asphalt but  if that person  has a                                                               
sound legal  reason for his  argument, that person should  not be                                                               
forced to pay damages.                                                                                                          
                                                                                                                                
CHAIR  SEEKINS said  that person  would not  have to  pay damages                                                               
according  to  paragraph  (c)(4),  because that  person  was  not                                                               
acting with malice.                                                                                                             
                                                                                                                                
SENATOR  FRENCH  said  he  believes  a  person  could  argue  the                                                               
contrary  and wants  to keep  the focus  on the  strength of  the                                                               
legal argument.                                                                                                                 
                                                                                                                                
CHAIR  SEEKINS  called for  the  question.  The motion  to  adopt                                                               
Amendment  1 failed  with  Senators French  and  Ellis voting  in                                                               
favor and Senators Ogan, Therriault, and Seekins voting against.                                                                
                                                                                                                                
SENATOR FRENCH moved  an amendment to add the  word "baseless" to                                                               
page 2, line 8, and said he believes that is a fair compromise.                                                                 
                                                                                                                                
SENATOR FRENCH  explained the word  "baseless" would  be inserted                                                               
in front of the word "legal" on page 2, line 8.                                                                                 
                                                                                                                                
CHAIR SEEKINS objected to the motion to adopt Amendment 2.                                                                      
                                                                                                                                
TAPE 03-47, SIDE A                                                                                                            
9:40 a.m.                                                                                                                     
                                                                                                                                
CHAIR SEEKINS  noted that  all claims are  based on  something so                                                               
that if  a lawsuit were  based on, for  example, a hatred  of oil                                                               
drill rigs, the claim would not be baseless.                                                                                    
                                                                                                                                
SENATOR FRENCH replied:                                                                                                         
                                                                                                                                
     I  guess  that  is   why  the  word  'objectively'  was                                                                    
     important,  because  it  gets  you back  to  the  legal                                                                    
     merits  and  not  to  the  mind  of  the  person  who's                                                                    
     bringing it. Once you step  into the mind of the person                                                                    
     who is bringing  it, you're into a hall  of mirrors and                                                                    
     I think you're somewhere where  you just can't win. Any                                                                    
     judge can look  at the quality of a  legal argument and                                                                    
     say  that's  a  joke.   That's  when  it's  objectively                                                                    
     baseless.                                                                                                                  
                                                                                                                                
CHAIR  SEEKINS said  a judge  would  have to  determine that  the                                                               
plaintiff acted in bad faith.                                                                                                   
                                                                                                                                
REPRESENTATIVE FATE said  he would prefer that  "bad faith claim"                                                               
be used.                                                                                                                        
                                                                                                                                
CHAIR  SEEKINS  noted  that  language   is  already  included  in                                                               
paragraph (c)(3).                                                                                                               
                                                                                                                                
SENATOR  OGAN commented  that determining  malice is  subjective;                                                               
therefore he feels  that including the word  "baseless" will help                                                               
to quantify  the malice.  He questioned  how one  would determine                                                               
the legal standard for the culpability of "malice."                                                                             
                                                                                                                                
CHAIR SEEKINS pointed out that  legal precedence has been set for                                                               
"malice."                                                                                                                       
                                                                                                                                
SENATOR THERRIAULT said he  understands Senator French's argument                                                               
in that a person  might have a "legal hook" to  hang the claim on                                                               
but  is filing  the claim  for the  sole reason  of delaying  the                                                               
project.  Senator French  is  trying to  focus  the liability  on                                                               
cases in  which there is  no legal  valid argument that  is filed                                                               
with bad intentions.                                                                                                            
                                                                                                                                
CHAIR SEEKINS stated:                                                                                                           
                                                                                                                                
     I think  that - what  we're trying  to get to  there is                                                                    
     that, Senator Therriault if I  understand is, you could                                                                    
     still bring the  action on a legally valid  point or it                                                                    
     probably would  be defeated  in summary  judgment right                                                                    
     up front,  but the question  is was that  legally valid                                                                    
     complaint done  in bad  faith and  I think  that's what                                                                    
     the sponsor  is trying  to get  to is that  - am  I not                                                                    
     correct?                                                                                                                   
                                                                                                                                
REPRESENTATIVE FATE said that is correct.                                                                                       
                                                                                                                                
CHAIR SEEKINS continued:                                                                                                        
                                                                                                                                
     So, if it has no basis  under the law, if it's baseless                                                                    
     under the  law, more than  likely it would  be disposed                                                                    
     of  in  a  very  short  period  of  time  with  summary                                                                    
     judgment because  someone has not brought  any basis to                                                                    
     bring the action.  And I think what he's  trying to get                                                                    
     to  is the  element of  bad faith.  He's not  trying to                                                                    
     keep  someone  from  bringing   an  action  that  would                                                                    
     otherwise be legally allowed.                                                                                              
                                                                                                                                
SENATOR THERRIAULT  said a person can  bring an action to  get an                                                               
injunction against  a project and  the court can refuse  to grant                                                               
that injunction by saying if the  project goes ahead, no one will                                                               
be harmed.  The injunction  was not  dismissed because  the claim                                                               
had no basis; it was dismissed  because no one will suffer if the                                                               
project goes  ahead. He questioned  whether under (2) on  page 2,                                                               
line 12, the  claim would be considered to be  the request for an                                                               
injunction.                                                                                                                     
                                                                                                                                
CHAIR SEEKINS  said the claim  to get injunctive relief  would be                                                               
rejected; he referred to the language on lines 6 and 7.                                                                         
                                                                                                                                
SENATOR  FRENCH said  he believes  it could  be either.  A person                                                               
could get  an injunction and later  fail on the merits,  when the                                                               
injunction would  be lifted. That  would be a far  more expensive                                                               
hurdle  for a  company  to  get over  because  the company  could                                                               
suffer  a three-month  project delay.  He said  the risk  for the                                                               
plaintiff  is that  the plaintiff  gets the  injunction and  then                                                               
loses the  case three months later  and is liable for  $3 million                                                               
in damages.  He said a person  who may be considered  an agitator                                                               
could be  on the  hook for  millions of  dollars of  damages even                                                               
though  that person  had  a  valid legal  reason  for filing  the                                                               
claim.  That  is the  reason  he  preferred including  the  words                                                               
"objectively baseless."                                                                                                         
                                                                                                                                
CHAIR SEEKINS  called for a roll  call vote. The motion  to adopt                                                               
Amendment 2  carried with Senators  French, Ogan,  Therriault and                                                               
Ellis in favor and Chair Seekins opposed.                                                                                       
                                                                                                                                
CHAIR SEEKINS announced that he would hold CS SSHB 86(JUD) in                                                                   
committee until the next hearing.                                                                                               
                                                                                                                                
SENATOR THERRIAULT informed members that he might propose an                                                                    
amendment to this legislation at the next meeting.                                                                              
                                                                                                                                
CHAIR SEEKINS adjourned the meeting at 10:02 a.m.                                                                               

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