Legislature(1993 - 1994)
04/12/1993 02:25 PM Senate JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE
April 12, 1993
2:25 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Rick Halford, Vice-Chairman
Senator George Jacko
Senator Suzanne Little
MEMBERS ABSENT
Senator Dave Donley
COMMITTEE CALENDAR
SENATE BILL NO. 178
"An Act relating to civil nuisance actions; and providing for
an effective date."
SENATE CONCURRENT RESOLUTION NO. 4
Relating to the Alaska Supreme Court's interpretation of
Alaska Rule of Civil Procedure 82 and requesting that the
court modify its interpretation of that rule.
CS FOR HOUSE BILL NO. 151(FIN)
"An Act relating to payment by indigent persons for services
of representation and court costs; providing for stays of
enforcement of a judgment during the pendency of an appeal of
a conviction; allowing petitions for remission, reduction, or
deferral of judgment; permitting a court to remit or reduce
a judgment or to change the method of payment; and providing
for an effective date."
PREVIOUS SENATE COMMITTEE ACTION
SB 178 - No previous action to record.
SCR 4 - No previous action to record.
HB 151 - No previous action to record.
WITNESS REGISTER
Steve Borell, Executive Director
Alaska Miners Association
501 W. Northern Lights Blvd.
Anchorage, AK 99503
POSITION STATEMENT: Supports SB 178 & SCR 4
David Katz
Tongass Conservation Society
Box 3377
Ketchikan, AK 99901
POSITION STATEMENT: Opposes SB 178 & SCR 4
Nancy Lethcoe, President
Alaska Wilderness, Recreation & Tourism
Association
Box 1313
Valdez, AK 99686
POSITION STATEMENT: Opposes SB 178 & SCR 4
Ernesta Ballard
705 Main St.
Ketchikan, AK 99901
POSITION STATEMENT: Supports SB 178 & SCR 4
Tom Crawford
P.O. Box 9330
Anchorage, AK 99507
POSITION STATEMENT: Supports SB 178
Cliff Taro
Box 8080
Ketchikan, AK 99901
POSITION STATEMENT: Supports SB 178
Chip Toma
Juneau, AK 99801
POSITION STATEMENT: Opposes SB 178
Katya Kirsch
Alaska Environmental Lobby
Box 22151
Juneau, AK 99802
POSITION STATEMENT: Opposes SB 178
Jamie Parsons, President
Alaska State Chamber of Commerce
217 Second St.
Juneau, AK 99801
POSITION STATEMENT: Supports SB 178
John Litten
Box 1001
Sitka, AK 99835
POSITION STATEMENT: Supports SB 178
Bob Englebrecht, Vice President
Temsco Helicopters
1650 Maplesden Way
Juneau, AK 99801
POSITION STATEMENT: Supports SB 178
Dan Keck
203 Harbor Drive
Sitka, AK 99835
POSITION STATEMENT: Supports SB 178 & SCR 4
Don Muller
Sitka, AK
POSITION STATEMENT: Opposes SB 178 & SCR 4
Ernestine Griffin, Executive Director
Greater Sitka Chamber of Commerce
Box 638
Sitka, AK 99835
POSITION STATEMENT: Supports SB 178 & SCR 4
Chris Christensen, Legal Counsel
Alaska Court System
303 K St.
Anchorage, AK 99501-2084
POSITION STATEMENT: Offered information on CSHB 151(FIN)
ACTION NARRATIVE
TAPE 93-42, SIDE A
Number 001
Chairman Robin Taylor called the Judiciary Committee meeting
to order at 2:25 p.m. He stated the first order of business
would be to take public testimony on SB 178 (CIVIL NUISANCE
ACTIONS) and SCR 4 (REQUEST CHANGE IN RULE 82 FEES).
Number 010
STEVE BORELL, Executive Director, Alaska Miners Association,
testifying from Anchorage, stated their support for SB 178 for
several reasons. First, SB 178 would remove one of the
incentives for groups or individuals to file nuisance law
suits by removing the financial incentive and this should
decrease the number of suits that are filed to merely harass,
to object to and to stall projects. Passage of the
legislation will form one more tangible evidence to the
international mining industry that Alaska truly wants mineral
development and that the Alaska State Legislature is
interested in removing the impediments to reasonable mining
development. SB 178 is an incentive from the aspect of
showing that Alaska wants to be considered as a place for
people to invest their monies.
Number 065
DAVE KATZ, representing the Tongass Conservation Society and
testifying from Ketchikan, voiced their strong opposition to
SB 178 and SCR 4.
Mr. Katz said SB 178 deals with tort law and, in his view,
represents very broad tort reform. He said he knows of no
other state that is considering wiping "toxic torts" out of
the legal lexicon. Under SB 178, an individual would be
deprived of his right to defend his property from toxic
hazardous wastes.
Mr. Katz noted that relatively little of businesses or
activities are actually regulated in spite of the fact that
many businesses feel that they are over regulated. It's very
possible for a business to operate within its normal permit
and still create a nuisance. SB 178 would be an invitation
to every irresponsible operator to come Alaska because they
know that they can't be sued.
Speaking to SCR 4, Mr. Katz said it does not target frivolous
lawsuits, but, rather, it targets good public lawsuits. He
said there are already rules in effect that deal with so-
called frivolous lawsuits.
Number 170
NANCY LETHCOE, President of the Alaska Wilderness, Recreation
and Tourism Association testified from Valdez in opposition
to SB 178 and SCR 4. She said their organization represents
300 members statewide whose businesses depend on the marketing
of Alaska's natural resources. Most of these businesses
employ 10 people or less, they are family owned, and their
owners live in Alaska, usually in rural communities where they
provide economic diversity. They believe Alaska can have a
diversified economy if it has laws that protect its people and
its resources.
Number 200
ERNESTA BALLARD, representing the Ketchikan Chamber of
Commerce, the State Chamber of Commerce and the Alaska Forest
Association and testifying from Ketchikan, stated they believe
that it is reasonable that a prevailing party is entitled to
an award of attorney fees and cost in accordance with Alaska
Civil Rule 82, notwithstanding any determination by the courts
that the losing party be a public interest litigant.
Ms. Ballard said the Alaska Supreme Court has effectively
insulated public interest litigants from the expense of
litigation if they meet the criteria adopted by the courts for
public interest litigants.
Ms. Ballard said under Rule 82, as generally applied,
litigants have a great incentive either not to litigate
doubtful claims or to settle litigation. Public interest
litigants, on the other hand, have a great incentive to
litigate even weak claims because they suffer no economic
burden if they lose, and they are able to impose substantial
economic burdens on private companies developing state-owned
resources if they prevail. The cost of economic opportunity
losses must be applied against the economic value of an
investment in public resources development as litigation may
cause developers to forego or substantially postpone
development, even in situations where the plaintiff's claim
is weak.
Ms. Ballard said public interest litigation has been used with
increasing frequency in the last several years with a
measurable impact on economic vitality in the State of Alaska.
Concluding, Ms. Ballard stated support for SB 178 and SCR 4.
Number 250
TOM CRAWFORD, a minerals exploration geologist speaking on
behalf of the North Pacific Mining Corporation and the Alaska
State Chamber of Commerce testified from Anchorage in support
of SB 178.
Mr. Crawford said the existing nuisance standard that SB 178
proposes to revise allows for lawsuits if an individual's
"personal enjoyment is lessened," and that standard is an open
invitation to frivolous legal actions. Legal provisions like
this are an additional disincentive to mining companies that
already perceive Alaska to be a difficult place to work
because of its remoteness, the climate, lack of transportation
and infrastructure, etc. It unfairly jeopardizes the company
that has played by all the rules and has made an investment
of many thousands and millions of dollars in hopes of
obtaining a reasonable return on that investment.
Number 295
CLIFF TARO, President of Southeast Stevedoring Corporation
testified from Ketchikan in support of SB 178. He said their
members are dependent for their living on the tourist
industry, the shipping industry, the mining industry, as well
as the fishing industry.
Mr. Taro said for the current law to allow a frivolous so-
called nuisance to be able to stop or delay industry and
commerce only enables preservationists to be able to stop any
and all development without penalties on their part. The
regulatory agencies have the duty and power to carry out the
many requirements that industry must adhere to. To allow
individuals whose concerns might be legitimate, but who do not
understand the ramifications for those whose agenda is to stop
all development no matter what the cost may be to industry,
should not be allowed.
Number 315
CHIP TOMA, testifying in Juneau, stated he has some concerns
with SB 178. He spoke to a lawsuit against the Sitka Pulp Co.
and said he believes SB 178 is to protect the Sitka Pulp Mill,
even if their permit is violated.
Mr. Toma also pointed out that no other state has a similar
limitation on this kind of tort law, and he asserted that the
bill is probably unconstitutional because it denies due
process to property owners, it constitutes a taking of private
property rights, and it may make the state liable for cost of
injury to be properly caused by permitted activity.
Number 365
KATYA KIRSCH, representing the Alaska Environmental Lobby,
stated their opposition to SB 178. She said it not fair to
prevent citizens of Alaska from having access to legal actions
regarding permitted corporate activities. Alaskans citizens
should always have the fundamental right to protect their
property rights.
Ms. Kirsch said passage of the legislation may stop certain
legal actions this year, and it may be dangerous to set a
precedent to create legislation that nullifies legal actions.
It could pave the way for other legislation that may stop
entirely different legal actions in a different political
atmosphere in future years.
Number 390
JAMIE PARSONS, President of the Alaska State Chamber of
Commerce, stated the board's support for SB 178 and clarifying
the definition of "nuisance."
Mr. Parsons said it is logical that after the lengthy public
scrutiny process any company or individual has to go through
these days to secure permission to proceed, especially in
resource development, those permits should be worth something.
Passage of SB 178 would greatly reduce, once permits are
issued, lawsuits simply filed to harass or to kill a project
using delaying tactics.
Concluding his comments, Mr. Parsons said the Alaska State
Chamber of Commerce believes that by narrowing the definition
of "nuisance" to mean a substantial and unreasonable
interference with use and enjoyment of real property,
including water, SB 178 will go a long way in reducing
frivolous lawsuits and unnecessary litigation.
Number 416
JOHN LITTEN, a small business person in Sitka directly
involved in the tourism industry, stated his support for SB
178. He said there are a number of Alaska businesses that can
be affected by either passage or non-passage of the
legislation.
Mr. Litten said as a small business person and as a person
that has three quarters of a million dollars in busses, if
someone doesn't like the fact that there is diesel smoke in
the air or something like that, they can stop him from
operating in a window that is very limited for the tourist
season, and they should be held responsible for the damage
that they could cause to his business.
Number 445
BOB ENGLEBRECHT, Vice President, Temsco Helicopters,
testifying in Juneau, said obtaining the necessary permits,
certificates and approvals is a costly and time consuming
business for them, and this is without the extra burden of
potential lawsuits. Temsco concurs with the business
community concern that these types of suits will spread even
though they are operating within the regulations, and the cost
of defending against frivolous lawsuits can be a real hardship
on a company the size of Temsco. He stated Temsco's support
for the passage of SB 178.
Number 461
DAN KECK, testifying from Sitka, stated his support for SB 178
and SCR 4. He said frivolous and nuisance lawsuits have been
a real concern of municipalities and local governments for
many years. Frivolous lawsuits are an easy way for
conservationists to keep projects., etc., tied up in the
courts for years. He urged passage of the bill and
resolution.
Number 475
DON MULLER, a Sitka businessman testifying from Sitka, read
into the record testimony he had submitted to the committee
the previous week, which asserts that the legislation is being
considered because the Sitka Pulp Mill doesn't like the
existing rules. He asked that the committee members vote
against SB 178 and SCR 4 in the interest of democracy and the
rights of the citizens of Alaska.
Number 495
ERNESTINE GRIFFIN, Executive Director, Greater Sitka Chamber
of Commerce, testifying from Sitka, stated their board of
directors voted in favor of supporting SB 178.
There being no further testimony, SENATOR TAYLOR closed the
public hearing on SB 178 and SCR 4.
Number 510
SENATOR TAYLOR introduced CSHB 151(FIN) (PAYMENT BY INDIGENTS
FOR LEGAL SERVICES) as the next order of business.
CHRIS CHRISTENSEN, Legal Counsel to the Judicial Branch,
explained the legislation was introduced at the request of the
Alaska Supreme Court.
Mr. Christensen explained that until 1990, Alaska Statutes
authorized the court to order a defendant to pay for defense
services to the extent that the defendant could afford to pay
at that time. For a variety of reasons the statute was
ineffective in obtaining repayment of defense costs from
indigent defendants.
In 1990, at the request of the Supreme Court, the legislature
amended AS 18.85.120 to allow civil judgments to be entered
against defendants who were represented by the public defender
of the Office of Public Advocacy without considering the
defendant's current ability to pay. This change ensured the
indigent defendants would receive counsel, but that if they
ever became non-indigent at some later time, they would repay
some small percentage of the cost of their representation.
One major problem with the statute as enacted in 1990 was that
it allowed a three-year moratorium on repayment following a
person's release from incarceration. This moratorium
currently makes it substantially more difficult for the state
to recover defense costs in a timely manner and imposes a very
expensive administrative burden on the Department of Law.
Mr. Christensen said outlined the following changes to AS
18.83.120 that are contained in CSHB 151(Fin): (1) removal
of the three-year moratorium; and (2) codification of
language that is currently contained in Criminal Rule 39.
Number 540
SENATOR TAYLOR asked what portion of the actual cost of
attorney's fees they anticipate getting repaid. CHRIS
CHRISTENSEN answered that under Criminal Rule 39 the charges
that will be imposed on criminal defendants are extremely low
compared to what a private sector attorney would charge. The
money will be collected by the fines collection attorney in
the AG's office, and they have estimated that with the changes
made in the legislation they would probably collect $850,000
the first year. He added it is a substantial sum of money and
it will do a good deal to help offset the tremendous costs
that are incurred each year by the state in providing public
defender services.
TAPE 93-42, SIDE B
Number 005
CHRIS CHRISTENSEN further explained that the system that was
enacted in 1990 and which this legislation modifies is a civil
judgment. With a civil judgement, the defendant has the
protection of the Alaska Exemptions Act, which is designed to
prevent people from being wiped out by their creditors. Also,
this statute would say that if a person can demonstrate
manifest hardship to their family to the judge, the judge can
even say to protect their PFD. He stressed that they are not
zeroing in on indigents, rather these are people who have
gotten back on their feet and the amount they would collect
is small so as not to force them back into indigentcy.
Number 060
SENATOR TAYLOR asked for the pleasure of the committee.
SENATOR HALFORD moved that CSHB 151(FIN) be passed out of
committee with individual recommendations. SENATOR LITTLE
objected. The roll was taken with the following result:
Senators Halford, Jacko and Taylor voted "Yea," and Senator
Little voted "Nay." The Chair stated the motion passed.
Number 070
SENATOR TAYLOR brought SB 178 and SCR 4 back before the
committee.
SENATOR HALFORD moved and asked unanimous consent that CSSB
178(JUD) be adopted. Hearing no objection, the motion
carried.
SENATOR TAYLOR explained that the committee substitute adds
the word "private" before the word "nuisance" on page 1, line
5 to clarify that this does not relate to public nuisance
actions. On lines and 13 and 14, reference to AS 03.30.030
and AS 19.27 were removed because both of them are statutory
public nuisances. Further, on page 2, line 3, subsection (d)
has been deleted so as not to interfere with the ability of
those entities to protect citizens from public nuisances.
Number 100
SENATOR LITTLE stated she has concerns with the legislation
and believes that it is too broad.
Number 110
SENATOR HALFORD moved that SB 178 be passed out of committee
with individual recommendations. SENATOR LITTLE objected.
The roll was taken with the following result: Senators
Halford, Jacko and Taylor voted "Yea," and Senator Little
voted "Nay." The Chair stated the motion carried.
Number 115
SENATOR HALFORD moved that SCR 4 be passed out of committee
with individual recommendations. Hearing no objection, it was
so ordered.
There being no further business to come before the committee,
the meeting was adjourned at 3:20 p.m.
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