04/11/2012 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB224 | |
| HB55 | |
| HB343 | |
| HB168 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| = | HB 224 | ||
| = | HB 55 | ||
| + | HB 343 | TELECONFERENCED | |
| + | HB 168 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
April 11, 2012
1:34 p.m.
MEMBERS PRESENT
Senator Hollis French, Chair
Senator Bill Wielechowski, Vice Chair
Senator Joe Paskvan
Senator John Coghill
MEMBERS ABSENT
Senator Lesil McGuire
COMMITTEE CALENDAR
COMMITTEE SUBSTITUTE FOR HOUSE BILL NO. 224(FIN) AM
"An Act prohibiting the sale or gift of a product containing
nicotine to a minor under certain conditions."
- MOVED CSHB 224(FIN) AM OUT OF COMMITTEE
COMMITTEE SUBSTITUTE FOR HOUSE BILL NO. 55(JUD)
"An Act adding definitions of 'gravity knife' and 'switchblade'
to the criminal law; and relating to reserving the authority to
regulate knives to the state with limited exceptions for
municipalities to regulate knives."
- MOVED CSHB 55(JUD) OUT OF COMMITTEE
COMMITTEE SUBSTITUTE FOR HOUSE BILL NO. 343(JUD) AM
"An Act relating to disclosure of records of the Department of
Health and Social Services pertaining to children in certain
circumstances; and providing for an effective date."
- HEARD & HELD
COMMITTEE SUBSTITUTE FOR HOUSE BILL NO. 168(JUD)
"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."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 224
SHORT TITLE: SALES OF NICOTINE PRODUCTS TO MINOR
SPONSOR(s): REPRESENTATIVE(s) SEATON
04/04/11 (H) READ THE FIRST TIME - REFERRALS
04/04/11 (H) JUD, FIN
04/11/11 (H) JUD AT 1:00 PM CAPITOL 120
04/11/11 (H) Scheduled But Not Heard
04/13/11 (H) JUD AT 1:00 PM CAPITOL 120
04/13/11 (H) Moved CSHB 224(JUD) Out of Committee
04/13/11 (H) MINUTE(JUD)
04/14/11 (H) JUD RPT CS(JUD) NT 4DP 3NR
04/14/11 (H) DP: HOLMES, THOMPSON, LYNN, GATTO
04/14/11 (H) NR: PRUITT, KELLER, GRUENBERG
02/23/12 (H) FIN AT 1:30 PM HOUSE FINANCE 519
02/23/12 (H) Scheduled But Not Heard
02/27/12 (H) FIN AT 1:30 PM HOUSE FINANCE 519
02/27/12 (H) Moved CSHB 224(FIN) Out of Committee
02/27/12 (H) MINUTE(FIN)
02/29/12 (H) FIN RPT CS(FIN) NT 9DP 1AM
02/29/12 (H) DP: FAIRCLOUGH, T.WILSON, GUTTENBERG,
COSTELLO, EDGMON, DOOGAN, JOULE,
STOLTZE,
02/29/12 (H) THOMAS
02/29/12 (H) AM: GARA
03/12/12 (H) TRANSMITTED TO (S)
03/12/12 (H) VERSION: CSHB 224(FIN) AM
03/14/12 (S) READ THE FIRST TIME - REFERRALS
03/14/12 (S) HSS, JUD
03/28/12 (S) HSS AT 1:30 PM BUTROVICH 205
03/28/12 (S) Moved CSHB 224(FIN) am Out of Committee
03/28/12 (S) MINUTE(HSS)
03/30/12 (S) HSS RPT 4DP
03/30/12 (S) DP: DAVIS, MEYER, EGAN, DYSON
04/09/12 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
04/09/12 (S) Heard & Held
04/09/12 (S) MINUTE(JUD)
04/11/12 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: HB 55
SHORT TITLE: KNIVES, GRAVITY KNIFE & SWITCHBLADE
SPONSOR(s): REPRESENTATIVE(s) NEWMAN, LYNN
01/18/11 (H) PREFILE RELEASED 1/7/11
01/18/11 (H) READ THE FIRST TIME - REFERRALS
01/18/11 (H) JUD
02/15/12 (H) JUD AT 1:00 PM CAPITOL 120
02/15/12 (H) Moved CSHB 55(JUD) Out of Committee
02/15/12 (H) MINUTE(JUD)
02/17/12 (H) JUD RPT CS(JUD) NT 6DP
02/17/12 (H) DP: LYNN, GRUENBERG, KELLER, THOMPSON,
HOLMES, GATTO
03/05/12 (H) TRANSMITTED TO (S)
03/05/12 (H) VERSION: CSHB 55(JUD)
03/06/12 (S) READ THE FIRST TIME - REFERRALS
03/06/12 (S) JUD
04/09/12 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
04/09/12 (S) Heard & Held
04/09/12 (S) MINUTE(JUD)
04/11/12 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: HB 343
SHORT TITLE: DISCLOSURE OF CHILDREN'S RECORDS
SPONSOR(s): REPRESENTATIVE(s) MUNOZ
02/22/12 (H) READ THE FIRST TIME - REFERRALS
02/22/12 (H) HSS, JUD
03/15/12 (H) HSS AT 3:00 PM CAPITOL 106
03/15/12 (H) Moved CSHB 343(HSS) Out of Committee
03/15/12 (H) MINUTE(HSS)
03/16/12 (H) HSS RPT CS(HSS) 3DP 3NR
03/16/12 (H) DP: SEATON, MILLER, KERTTULA
03/16/12 (H) NR: MILLETT, HERRON, KELLER
03/26/12 (H) JUD AT 1:00 PM CAPITOL 120
03/26/12 (H) Heard & Held
03/26/12 (H) MINUTE(JUD)
03/28/12 (H) JUD AT 1:00 PM CAPITOL 120
03/28/12 (H) Moved CSHB 343(JUD) Out of Committee
03/28/12 (H) MINUTE(JUD)
03/30/12 (H) JUD RPT CS(JUD) 4DP 1NR 1AM
03/30/12 (H) DP: GRUENBERG, KELLER, PRUITT, THOMPSON
03/30/12 (H) NR: LYNN
03/30/12 (H) AM: HOLMES
04/06/12 (H) TRANSMITTED TO (S)
04/06/12 (H) VERSION: CSHB 343(JUD) AM
04/07/12 (S) READ THE FIRST TIME - REFERRALS
04/07/12 (S) JUD
04/11/12 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: HB 168
SHORT TITLE: INJUNCTION SECURITY: INDUSTRIAL OPERATION
SPONSOR(s): REPRESENTATIVE(s) FEIGE
02/23/11 (H) READ THE FIRST TIME - REFERRALS
02/23/11 (H) JUD
02/25/11 (H) BILL REPRINTED 2/24/11
03/21/11 (H) JUD AT 1:00 PM CAPITOL 120
03/21/11 (H) Heard & Held
03/21/11 (H) MINUTE(JUD)
03/23/11 (H) JUD AT 1:00 PM CAPITOL 120
03/23/11 (H) <Bill Hearing Canceled>
03/30/11 (H) JUD AT 1:00 PM CAPITOL 120
03/30/11 (H) Scheduled But Not Heard
04/04/11 (H) JUD AT 1:00 PM CAPITOL 120
04/04/11 (H) Moved CSHB 168(JUD) Out of Committee
04/04/11 (H) MINUTE(JUD)
04/05/11 (H) JUD RPT CS(JUD) 3DP 2NR
04/05/11 (H) DP: KELLER, PRUITT, THOMPSON
04/05/11 (H) NR: GRUENBERG, HOLMES
04/07/11 (H) TRANSMITTED TO (S)
04/07/11 (H) VERSION: CSHB 168(JUD)
04/08/11 (S) READ THE FIRST TIME - REFERRALS
04/08/11 (S) L&C, JUD
02/23/12 (S) L&C AT 1:30 PM BELTZ 105 (TSBldg)
02/23/12 (S) <Bill Hearing Postponed>
03/01/12 (S) L&C AT 1:30 PM BELTZ 105 (TSBldg)
03/01/12 (S) Heard & Held
03/01/12 (S) MINUTE(L&C)
03/13/12 (S) L&C AT 1:30 PM BELTZ 105 (TSBldg)
03/13/12 (S) Heard & Held
03/13/12 (S) MINUTE(L&C)
03/20/12 (S) L&C AT 1:30 PM BELTZ 105 (TSBldg)
03/20/12 (S) Moved CSHB 168(JUD) Out of Committee
03/20/12 (S) MINUTE(L&C)
03/21/12 (S) L&C RPT 2DP 3NR
03/21/12 (S) DP: GIESSEL, MENARD
03/21/12 (S) NR: EGAN, DAVIS, PASKVAN
03/23/12 (S) L&C UPDATED (2012 FORMAT) FISCAL NOTES
04/11/12 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
WITNESS REGISTER
REPRESENTATIVE CATHY MUNOZ
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Sponsor of HB 343.
TONY NEWMAN, Program Officer
Division of Juvenile Justice
Department of Health and Social Services (DHSS)
Juneau, AK
POSITION STATEMENT: Testified in support of HB 343.
STACIE KRALY, Assistant Attorney General
Human Services Section
Civil Division
Department of Law (DOL)
Juneau, AK
POSITION STATEMENT: Answered questions related to HB 343.
QUINLAN STEINER, Public Defender
Public Defender Agency
Department of Administration (DOA)
Anchorage, AK
POSITION STATEMENT: Answered questions related to HB 343.
REPRESENTATIVE ERIC FEIGE
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Sponsor of HB 168.
MIKE JUNGREIS, member
Resource Development Council for Alaska, Inc. (RDC)
Anchorage, AK
POSITION STATEMENT: Testified in support of HB 168.
RACHEL PETRO, President and CEO
Alaska State Chamber of Commerce
Anchorage, AK
POSITION STATEMENT: Testified in support of HB 168, version D.
ANDREW KELLER, representing himself
Fairbanks, AK
POSITION STATEMENT: Testified in opposition to HB 168.
BOB DICKSON, representing himself
Anchorage, AK
POSITION STATEMENT: Testified in support of HB 168.
TERRY SEVY, representing himself
Anchorage, AK
POSITION STATEMENT: Stated firm opposition to HB 168.
BONNIE ZIRCLE, representing herself
Palmer, AK
POSITION STATEMENT: Testified in opposition to HB 168.
ANDY MODEROW, Executive Director
Alaska Conservation Alliance
Anchorage, AK
POSITION STATEMENT: Testified in opposition to HB 168.
TOM WALDO, Attorney
Earth Justice
Juneau, AK
POSITION STATEMENT: Testified in opposition to HB 168.
EMILY BREEZE, representing herself
Healy, AK
POSITION STATEMENT: Testified in opposition to HB 168.
MIKE SATRY, Executive Director
Council of Alaska Producers
Juneau, AK
POSITION STATEMENT: Testified in support of HB 168.
KATHY WASSERMAN, Executive Director
Alaska Municipal League (AML)
Juneau, AK
POSITION STATEMENT: Testified that the municipalities are
concerned with HB 168.
SHIRLEY MARQUART, Mayor
City of Unalaska and
President
Alaska Municipal League
Unalaska, AK
POSITION STATEMENT: Raised questions about HB 168.
BARBARA HUFF-TUCKNESS, Executive Director
Governmental Affairs
Teamsters Local 959
Anchorage, AK
POSITION STATEMENT: Testified in support of HB 168.
ACTION NARRATIVE
1:34:56 PM
CHAIR HOLLIS FRENCH called the Senate Judiciary Standing
Committee meeting to order at 1:34 p.m. Present at the call to
order were Senators Wielechowski, Coghill, and Chair French.
Senator Paskvan arrived soon thereafter.
HB 224-SALES OF NICOTINE PRODUCTS TO MINOR
1:35:41 PM
CHAIR FRENCH announced the consideration of HB 224, "An Act
prohibiting the sale or gift of a product containing nicotine to
a minor under certain conditions." The bill was heard previously
and public testimony was taken. Finding no further questions or
discussion, he asked the will of the committee.
1:35:59 PM
SENATOR WIELECHOWSKI moved to report CS for HB 224 from
committee with individual recommendations and attached fiscal
note(s).
CHAIR FRENCH announced that CSHB 224(FIN)am moved from the
Senate Judiciary Standing Committee.
HB 55-KNIVES, GRAVITY KNIFE & SWITCHBLADE
1:36:12 PM
CHAIR FRENCH announced the consideration of HB 55, "An Act
adding definitions of 'gravity knife' and 'switchblade' to the
criminal law; and relating to reserving the authority to
regulate knives to the state with limited exceptions for
municipalities to regulate knives." The bill was heard
previously and public testimony was taken. Finding no further
questions or discussion, he asked the will of the committee.
1:36:37 PM
SENATOR WIELECHOWSKI moved to report CS for HB 55 from committee
with individual recommendations and attached fiscal note(s).
CHAIR FRENCH announced that CSHB 55(JUD) moved from the Senate
Judiciary Standing Committee.
1:36:50 PM
At ease from 1:36 p.m. to 1:37 p.m.
HB 343-DISCLOSURE OF CHILDREN'S RECORDS
1:37:58 PM
CHAIR FRENCH announced the consideration of HB 343, "An Act
relating to disclosure of records of the Department of Health
and Social Services pertaining to children in certain
circumstances; and providing for an effective date."
SENATOR PASKVAN joined the committee.
1:38:28 PM
REPRESENTATIVE CATHY MUNOZ, sponsor of HB 343, said the bill
does three primary things. First, it assures that the Division
of Juvenile Justice (DJJ) and the Office of Children's Services
(OCS) can exchange information to provide necessary services to
children without undue delay. Second, it allows individuals with
a legitimate interest - such as former clients who once were
children in state custody, their parents or guardians - to
receive information about delinquency history and health records
from DJJ. Third, it clarifies cumbersome language in current law
regarding public disclosure of juvenile information. The
legislation strives to preserve the legislative intent of
maintaining public safety by disclosing appropriate information
on serious offenders while protecting the confidentiality of
offenders who pose less risk to society.
1:41:15 PM
TONY NEWMAN, Program Officer, Division of Juvenile Justice,
Department of Health and Social Services (DHSS), spoke to the
benefits of improving OCS and DJJ's ability to collaborate. The
amendment to AS 47.12.310(f) (Section 3) will enable DJJ to be
more responsive to requests, particularly from individuals with
a need for background information on their juvenile history.
Provisions in Section 4 will improve the ability of staff and
the public to understand when information about a juvenile
offense is subject to public disclosure and when it is not.
He stated that the proposed bill will not change any laws
regarding victim notification, and parents and agencies with
well-established rights to juvenile information will continue to
receive the necessary information to effectively carry out their
duties. The laws surrounding child abuse and neglect are not
affected by the proposed bill.
1:43:45 PM
SENATOR PASKVAN asked for specifics on how the guardian ad litem
or OCS employee can get a request for nondisclosure before the
court.
MR. NEWMAN said the intention is not for the OCS employee to
object. The guardian ad litem (GAL) or child's attorney would
make the objection and the court would rule on whether the
release of information was in the best interest of the child. He
continued to say that DJJ intends to develop policy and
regulation to guide staff in understanding the type of
information that is appropriate to exchange between the
divisions.
1:46:49 PM
SENATOR PASKVAN said he was trying to understand the physical
mechanism to get to the court house in those limited
circumstances when it was not in the best interest to disclose
the information.
MR. NEWMAN said DDJ and OCS employees already share information
in all but a few pockets of the state, and this statute
clarifies that presumption. He deferred further explanation to
Ms. Kraly.
SENATOR PASKVAN mentioned the $75 civil filing fee and asked
what physical process is followed to get before a judge to
object to the disclosure of information.
1:49:43 PM
STACIE KRALY, Assistant Attorney General, Human Services
Section, Civil Division, Department of Law (DOL), explained that
the majority of these situations are existing court cases so
there would be a pending child in need of aid (CINA) action or a
pending juvenile justice matter. In that context, the guardian
ad litem, public defender, child, parent or guardian could file
a motion in those existing cases. In the rare instance when
neither a CINA action nor juvenile justice matter is pending, an
application for an original action would have to be filed with
the court to protect or prohibit further disclosure. The
individuals representing the minor would bring that motion.
MS. KRALY acknowledged that the issue of the filing fee wasn't
discussed since the majority of cases arise in an existing civil
context.
1:51:08 PM
CHAIR FRENCH asked for a discussion of the tension between the
desire to protect a minor from their youthful indiscretions and
the need for the public to be aware of those acts in certain
circumstances.
MR. NEWMAN said he believes the intention of the 1997 law
regarding public disclosure was to reconcile that tension,
because some information about juvenile offenses clearly should
be available to the public.
CHAIR FRENCH asked if the general rule is that most juvenile
records will stay confidential.
MR. NEWMAN said yes; the statute is very specific regarding the
conditions under which agency records may be released. HB 343
addresses the release of information that will be rehabilitative
and in the child's interest.
1:53:22 PM
CHAIR FRENCH asked if the language on page 5, line 29 through
the end of the subsection says that if information is stored in
electronic form it may be disclosed in that same medium.
MR. NEWMAN said yes.
CHAIR FRENCH asked how the seven enumerated offenses listed on
page 5, lines 11-18, fit in the scheme of the bill.
MR. NEWMAN explained that current law and the bill provide that
when a minor is charged with having committed one of those more
serious offenses, the information about the offense may be
disclosed upon adjudication if the juvenile is age 13 or older.
Lessor offenses are not eligible for public disclosure.
CHAIR FRENCH asked if in some situations juvenile jurisdiction
can be maintained to age 21.
MR. NEWMAN relayed that juvenile jurisdiction for a new offense
applies to age 18. A juvenile already under agency jurisdiction
can be maintained under probation supervision or in state
custody until his or her 19th birthday, and if both the juvenile
and court agree, jurisdiction can extend to the 20th birthday.
CHAIR FRENCH asked if this law could pertain to an individual
who is age 19.
MR. NEWMAN responded that a 19-year-old who commits a new
offense and is already under juvenile jurisdiction will
generally be remanded to the adult system.
CHAIR FRENCH asked if the bill provides that in the future those
records can be disclosed.
MR. NEWMAN said current law and this bill provide that public
disclosure will be maintained for five years after the
adjudication. The reasoning was that the public safety concern
would generally have passed by then.
1:58:57 PM
SENATOR COGHILL asked if the requests for information might come
from schools or foster homes.
MR. NEWMAN replied there are different statutes that allow
foster parents and victims to receive information about a
juvenile's history. The bill is addressing information that may
be disclosed to the public.
CHAIR FRENCH asked if the bill had any opposition.
MR. NEWMAN said no.
2:00:00 PM
CHAIR FRENCH closed public testimony, and asked Mr. Steiner if
the Public Defender Agency had concerns about the current
version of HB 343.
QUINLAN STEINER, Public Defender, Public Defender Agency,
Department of Administration (DOA), discussed working with Mr.
Newman throughout the process and the work that was done on
sections 1 and 4 to improve the bill. Addressing the
circumstances of nondisclosure was critical, he said.
CHAIR FRENCH asked if a juvenile could oppose the release of
these records.
MR. STEINER said yes, but as a practical matter it will
generally come from the guardian ad litem in a CINA case.
Theoretically at that point there is no juvenile justice case
CHAIR FRENCH asked how many juveniles whose records will be
released will be represented by someone who will receive notice
of the release.
MR. STEINER said there is no notice provision, and a juvenile
may not have a lawyer unless there is an ongoing CINA case.
CHAIR FRENCH asked if in his judgment notice isn't necessary.
MR. STEINER responded that that was one reason he worked closely
to preserve the option to litigate.
CHAIR FRENCH recalled that the Public Defender Agency rarely
takes a position on a bill. He asked if it was fair to say he
didn't oppose it.
MR. STEINER confirmed that he didn't take a position on the
bill, but some sections, Section 4 in particular, were an
improvement.
2:05:24 PM
CHAIR FRENCH announced he would hold HB 343 in committee.
HB 168-INJUNCTION SECURITY: INDUSTRIAL OPERATION
2:05:40 PM
CHAIR FRENCH announced the consideration of HB 168, and noted
the committee had lost its quorum.
2:06:12 PM
REPRESENTATIVE ERIC FEIGE, sponsor of HB 168, introduced HB 168
speaking to the following sponsor statement:
Under current law the cost to bring a public litigant
lawsuit against a legally permitted project is in
effect zero. There is very little risk in bringing a
suit. All the risk is borne by the defendants. These
actions do shut down projects at significant costs to
working Alaskans, businesses and the state treasury.
CSHB 168(JUD) seeks to remedy the situation by
leveling the playing field.
CSHB 168(JUD) parallels the requirements of Alaska
Civil Rule 65(c). As written, 65(c) states: "no
restraining order or preliminary injunction shall
issue except upon the giving of security by the
applicant, in such sum as the court deems proper, for
the payment of such costs and damages as may be
incurred or suffered by any party who is found to have
been wrongfully enjoined or restrained."
At the request of the Department of Law, HB 168 was
amended to more closely mirror the language of Alaska
Civil Rule 65(c) in order to clarify that the proposed
statute would not change the court rule. The court
already has the ability to require security. CSHB
168(JUD) simply requests that part of the court's
deliberation process should include payment of wages
and benefits for employees, payments to contractors
and sub-contractors of the industrial operation that
is shut down. The amount of security and how it is
calculated is totally within the hands of the court.
2:09:32 PM
CHAIR FRENCH recapped an earlier conversation with the sponsor
regarding primacy and relayed that he subsequently asked
Legislative Legal to address that question and whether the
current version of the bill may raise issues for the EPA similar
to those it expressed in a 2006 letter about a bill passed by
the Utah Legislature. Legislative Counsel, Dennis C. Bailey,
said the short answer is "Yes." He asked Representative Feige if
he had had an opportunity to read the memo.
REPRESENTATIVE FEIGE confirmed that he was familiar with the
Utah case.
CHAIR FRENCH explained the issue is whether or not Alaska law is
the same as federal law with respect to injunctions. Too much
separation jeopardizes the state's position of primacy on
several areas of permitting. He asked the sponsor if his office
sought any legal advice regarding the primacy issue.
REPRESENTATIVE FEIGE replied they asked for verification on
several question.
CHAIR FRENCH asked if the responses were in memo form or verbal
conversations with attorneys.
REPRESENTATIVE FEIGE said both.
CHAIR FRENCH asked if he cared to share any of those memos with
the committee.
REPRESENTATIVE FEIGE said he didn't bring that information, but
he did not believe the bill raised a significant primacy issue
and he was prepared to add intent language to clarify that
point.
2:12:12 PM
CHAIR FRENCH asked if an unjust result in any case in Alaska
illustrates the need for the bill.
REPRESENTATIVE FEIGE cited the May 2004 Pogo Mine case as one
example that put some people out of work for about two weeks. In
another example Shell Oil's projects on the Chukchi and Beaufort
seas were stopped for several years. About 700 jobs were
affected the summer he was involved. He opined that the concept
of enjoining a resource project was not unusual and the bill was
being proactive.
2:13:39 PM
CHAIR FRENCH asked if bonds were posted in the Shell cases.
REPRESENTATIVE FEIGE said he didn't know; those were federal
cases.
CHAIR FRENCH reminded the committee that primacy is whether or
not Alaska law tracks federal law.
SENATOR PASKVAN asked about the federal legal standard for
posting a bond that is similar to or different than what is
proposed in the bill.
REPRESENTATIVE FEIGE deferred the question to Mike Jungreis.
2:15:08 PM
MIKE JUNGREIS, member, Resource Development Council of Alaska,
Inc., (RDC), testified in support of HB 168. He spoke of the
awesome power of judges to grant injunctions and highlighted
that the bill is aimed only at preliminary adjudications, before
a judge knows whether a permit, for example, was properly or
improperly granted. It gives the court guidance on what factors
to consider in deciding whether or not to grant an injunction,
including the potential damage to employees, contractors, and
small businesses. He emphasized that the decision does not
restrict any access to the court or the ability of the court to
issue a final injunction.
He reported that the Ninth Circuit Court of Appeals has
occasionally issued injunctions to stop projects with only a
minimum bond requirement. The Kensington Mine case is an
example. Also, the U.S. Supreme Court held that there must be a
determination as to whether a bond should be required and the
amount. He emphasized that it is certainly consistent with
federal law and has been Alaska's long-standing law that a bond
be issued. The bill neither extends nor restricts the powers of
the court; it gives guidelines.
MR. JUNGREIS opined that the current situation is out of balance
because the applicants have no skin in the game. They are not
required to come up with any way to protect the project,
employees, and contractors for the damage that can be done with
a preliminary injunction. The bill tries to redress that balance
and place things on an even keel. Finally, it does not restrict
the state's power to grant permits; it only applies to third
parties.
CHAIR FRENCH asked if he was familiar with the Pogo Mine case.
MR. JUNGREIS said yes, but he couldn't say that this statute
would have come into play. He reiterated that it would have been
invoked in the Kensington case, and opined that it would have
been helpful to all concerned if the courts had specific
guidelines for evaluating damage.
2:21:40 PM
SENATOR PASKVAN asked if the state has the ability to file an
injunction.
MR. JUNGREIS said this proposal would not affect the state; the
state is excused from posting a bond for injunctions.
REPRESENTATIVE FEIGE added that the state could simply withdraw
or suspend the permit if it wanted to stop a project.
SENATOR PASKVAN asked if the state has the ability to seek an
immediate injunction during the operational phase.
REPRESENTATIVE FEIGE offered his understanding that the
department can shut down a project based on the permitting.
2:24:17 PM
RACHEL PETRO, President and CEO, Alaska State Chamber of
Commerce, testified in support of HB 168, version D. She
reported that the Alaska Chamber set litigation reform related
to resource development in Alaska as a top legislative priority
this year. She said under current law it costs virtually nothing
to challenge a legally permitted project in Alaska. The risk and
cost of litigation is borne by the defendants and Alaskans are
put out of work. HB 168 seeks to level the legal playing field
without infringing on any party's right to bring a legitimate
issue to court. The bill does not attempt to change court rules;
it simply articulates a request that wages of working Alaskans
be considered. She expressed hope that the bill would gain the
same bipartisan support it enjoyed in the House.
CHAIR FRENCH asked if she had any examples where the bill might
have prevented a wrongful injunction that shut down a project if
the party seeking the injunction had to post a bond.
MS. PETRO offered to follow up with specific examples.
CHAIR FRENCH said the question he was trying to answer was, "Are
we doing something wrong we need to fix?"
2:28:11 PM
ANDREW KELLER, representing himself, Fairbanks, AK, testified in
opposition to HB 168. He stated that the bill will discourage
parties from questioning permits granted to corporations for
industrial projects and effectively prohibit whistle-blowing. It
will seriously reduce the ability to protect the air, water,
wildlife, and safety from corporate irresponsibility. He noted
rd
the recent 23 year anniversary of the Exxon Valdez spill, and
warned against making it harder to prevent errors that result in
disaster.
2:29:49 PM
BOB DICKSON, representing himself, Anchorage, AK, summarized his
legal career and said he was testifying in support of HB 168. He
said the first point is that the bill does not deter access to
the court; it simply requires the court to follow the existing
Court Rule 65(c). He read subsection (c) and relayed that in all
his experience he has yet to see a bond required.
He addressed the primacy question saying it's an argument
without merit because the primacy issue deals with the process
for issuing permits and the bill does not involve that process
at all. He also pointed out that Alaska Civil Rule 65(c) is the
same as the federal rule 65(c). It says the court may issue a
preliminary injunction or a temporary restraining order only if
the movement gives security in the amount the court considers
proper. The problem, he said, is that courts grant injunctions
without following the rule and requiring a bond.
He noted that the Legal Services memorandum talked about the
legal grounds for getting a preliminary injunction, and pointed
out that the standard is A.J. Industries v. Alaska Public
Service Commission. That standard allows courts to issue
injunctions even when the defendant cannot be adequately
protected. The problem is that it actually takes very little to
challenge a development project. This bill would remedy that
situation and help the wage earners and subcontractors on a
project. Addressing the question of where this has been a
problem, he said no one can come up with a specific example
because those cases are typically settled so there is no
determination of a prevailing party.
SENATOR PASKVAN asked if maintaining primacy requires compliance
with a standard that is no less than the same opportunity for
judicial review under federal law.
MR. DICKSON offered his understanding that it relates to the
permitting process. To the extent that it addresses equivalent
judicial law, both the state and federal 65(c) rules are the
same.
SENATOR PASKVAN again asked if maintaining primacy requires the
state to provide access to judicial review that is no less than
the federal standard.
MR. DICKSON said the access goes to the ability to appeal to the
court the issuance of a permit and the bill doesn't affect that.
Anyone can go into court and try to explain how the permitting
process is flawed and that would be the same in both the state
and federal court systems.
SENATOR PASKVAN asked if it could be argued that the state
system is more restrictive than the federal system with respect
to parties before the court.
MR. DICKSON offered his understanding that federal law does not
have an equivalent to HB 168, but the test for getting a
preliminary injunction in federal court is basically the same as
in state court. A lot of federal courts are entering injunctions
without requiring any bonds, he said.
2:38:45 PM
TERRY SEVY, representing himself, Anchorage, AK, stated firm
opposition to HB 168. He said the bill will favor large
corporations and strip individuals of their right to take action
against such corporations by making it economically impossible.
He spoke to the importance of developing resources prudently to
ensure clean air and water for future generations. HB 168 lacks
such wisdom and invites disaster, he said.
2:41:04 PM
BONNIE ZIRCLE, representing herself, Palmer, AK, testified in
opposition to HB 168. She displayed photos showing damage to her
West Virginia family home, farmland, and nearby streams. She
explained the family home and farm was near an open pit mine
that blasted once a day, and that her Palmer home and hundreds
of others were located within a mile of the proposed Wishbone
Hill Mine in Palmer. She said it will have the same blasting
schedule. Because her experience in West Virginia was a damaged
home, slurry pond residue on farmland and contaminated wells and
streams, she questioned how it would be possible to protect
homes and families in the MatSu Valley if HB 168 were to pass.
2:44:53 PM
ANDY MODEROW, Executive Director, Alaska Conservation Alliance,
noted that he submitted written testimony. He stated that ACA
has concern that HB 168 is unconstitutional, punitive, and does
nothing to stop frivolous litigants. The bill would require
Alaskans to bond for the costs of delay if a judge issues
temporary relief after initial review of a case. He explained
that temporary relief is only granted if a case is likely to
succeed and if irreparable harm will occur if it is not granted.
If a case is frivolous, the judge will throw it out. This
punishes Alaskans that bring the strongest cases and does
nothing to punish the frivolous litigant. He emphasized that it
runs contrary to the American tradition of protecting whistle-
blowers to require a citizen to pay for a governmental error or
a corporation not following the terms of a permit. He concluded
stating that communities, tribal organizations, municipalities,
and individual Alaskans ought to have the right to stand up for
clean air, land, and water.
2:46:30 PM
TOM WALDO, Attorney, Earth Justice, Juneau, AK, stated that HB
168 impermissibly prevents citizens from making effective use of
the courts to protect resources by requiring the posting of
unaffordable bonds. He emphasized that it is very difficult to
get a preliminary injunction. The applicant has to show the case
is very strong and that irreparable harm will result absent the
stay. These requests aren't made very often, but can be very
important. He said his experience is that bonds for injunctions
for industrial operations would often be in the millions of
dollars. This means the bill effectively prevents people from
getting preliminary injunctions or stays in any circumstance,
even to prevent irreparable harm.
He listed three reasons that the bill would be unconstitutional.
First, it changes court rules adopted by the Alaska Supreme
Court that already govern injunctions, stays, and bonds. The
court would have no discretion. Second, it violates equal
protection because it singles out a particular class of citizens
for particularly discriminatory treatment. Third, it violates
due process, because it deprives citizens of meaningful access
to the courts to get interim relief.
MR. WALDO stated that Earth Justice represented the appellants
in the Pogo Mine litigation, and that is a particularly
inappropriate example to illustrate any reason for HB 168. There
was never an injunction and the case never went to court. He
explained that the EPA issued a permit under the Clean Water Act
and Earth Justice filed an appeal to establish a legal point
about jurisdiction under the Act. The Pogo Mine responded by
stopping construction and laying off workers. Although people
attribute that to an injunction, the parties to the case did not
intend to shut down the mine.
He concluded that the effect of the bill will be to prevent
citizens from getting needed relief in cases where it is
appropriate in order to avoid a hypothetical problem that no one
has been able to establish exists in the real world.
2:51:28 PM
EMILY BREEZE, representing herself, Healy, AK, said she was
testifying against HB 168 because it works to erode cherished
and vital constitutional rights: the right to have one's voice
heard and access to the courts. She spoke of the option to bring
forth local grievances and issues, the ability to ask questions,
and voice concerns or support, and described these as treasured
actions. She relayed that she lives in a town that feels the
effects of resource development, and that fracking will
potentially occur beneath her house. If HB 168 were to pass she
couldn't ask for a second look on these projects because she
couldn't afford the bond. She stated that it was the job of the
court system to weed out frivolous lawsuits, and the people
should listen if the court finds reason for an injunction.
MS. BREEZE concluded that by opposing the bill she was
supporting the creation of future jobs, the responsible
cultivation of natural resources, the health and safety of her
family and community members, and the right to have an equal
opportunity to have her voice heard.
2:53:47 PM
MIKE SATRY, Executive Director, Council of Alaska Producers,
Juneau, AK, testified in support of HB 168. He stated that the
council supports a rigorous science-based permitting system that
allows responsible development of Alaska's resources. The
council also respects the established public process used to
manage these resources. However, when a permitted project is
inappropriately enjoined it can harm Alaskan workers and
families due to lost wages and opportunities. HB 168 seeks to
mitigate this issue by requiring parties seeking an injunction
or stay to post a bond to cover lost wages and benefits if the
project is found to be wrongfully enjoined. It appropriately
directs the court to consider the potential for lost wages and
benefits when addressing industrial operations. He said the
council is respectful of an individual's rights to seek relief
through the courts if they believe a permit has been granted in
error. By giving the courts broad discretion in the calculation
of the bond, the bill protects the rights of both parties.
The bill does not affect federal permits appeals or litigation;
it does not prevent appeals or litigation of state permits; and
it does not impair the state's regulatory responsibilities or
permit enforcement activities. It does encourage involvement in
the early stages of public participation in the permitting
process and it requires litigants of state permits to recognize
the financial risk of their actions.
2:56:35 PM
KATHY WASSERMAN, Executive Director, Alaska Municipal League
(AML), stated that AML is very concerned about HB 168 because it
does not make the municipal exemption clear. The current court
rule says that municipalities are exempt from securities and
injunctions and it is important to maintain that exemption.
CHAIR FRENCH said he heard testimony that the state might be
exempt from the rule but he didn't hear municipalities
mentioned.
2:58:37 PM
SHIRLEY MARQUART, Mayor, City of Unalaska, AK and President,
Alaska Municipal League, made two points on the topic of HB 168.
The first related to maintaining the exemption for
municipalities. She said occasions do exist when a municipality
decides to speak on an issue or effect a change by going through
the court system. This wouldn't be possible if the municipality
had to set aside what may be millions of dollars to post a bond.
This would endanger municipal operating funds.
The second point was that the bill did not include fisheries as
an "industrial organization." She discussed the federal
injunction granted in 2000 to protect Steller sea lions that
shut down cod and pollock fisheries in the western Aleutians.
Although there is no link between those fisheries and the low
pup count, Adak, Unalaska, Akutan, Sand Point, King Cove,
Kodiak, and 63 CDQ villages in western Alaska have been living
under an injunction for 12 years.
3:01:54 PM
BARBARA HUFF-TUCKNESS, Director, Governmental and Legislative
Affairs, Teamsters Local 959, testified in support of HB 168.
She said she didn't believe the bill changed any court rules.
The union doesn't have deep pockets and potential injunctions
are taken very seriously. She spoke to what the union supports
with regard to clean air, land, water and safe working
conditions on projects. She maintained there was nothing wrong
with asking people to put a little skin in the process if it
encouraged people to be more proactive at the beginning of the
environmental process. Both sides of the issue definitely need
to be heard, and HB 168 doesn't close that door. Individuals and
groups will continue to be able to voice their concerns in
court, but the bill provides some relief for workers that are
inappropriately impacted.
REPRESENTATIVE FEIGE addressed the concerns that were raised in
testimony. He said existing state law covers AML's concern
regarding whether or not municipalities would be exempt from
posting bonds. He directed attention to AS 09.68.040 Parties
exempt from giving bond and read subsection (a):
(a) In an action or proceeding in a court in which the
state or a municipality is a party or in which the
state or a municipality is interested, a bond or
undertaking is not required of the state, a
municipality, or an officer of the state or
municipality.
Referring to the pictures Ms. Zircle distributed, he suggested
that the permitting process in Alaska is significantly different
than in West Virginia. The fact that no permits have been
rejected in the last five years speaks to the strength of the
system. He continued that Court Rule 65(c) already requires a
bond and the bill simply asks the court to consider the wages of
affected employees and contractors in any bond that is posted.
It does not give specific direction to the judges or
significantly change that rule. Citizens will continue to have
the ability to bring suit.
To address the primacy issue he offered suggested language for a
letter of intent that would accompany the bill:
It is the intent of the legislature that when deciding
what security to require of a party seeking an
injunction or stay of a permit affecting an industrial
operation, a court can consider the effect that the
injunction or stay could have on the employees and
contractors of the permittee. It is also the intent of
the legislature not to constrain the court's authority
or discretion under governing court rules, but to
direct the court's attention to that category of
potential harm to the permittee, its employees and
contractors that the requirement of surety should
protect against. It is the further intent of the
legislature that this legislation operating in
conjunction with AS 09.68.040(c) will assure the
court's consideration of the potential impacts to
permittees, employees, and contractors facing
suspension of the permitted operations.
CHAIR FRENCH said the primacy issue was his biggest concern
about the bill. Similar legislation passed in Utah and Governor
Huntsman vetoed it based on the primacy issue. The Department of
Natural Resources brought up primacy concerns last year in
testimony before the House Judiciary Committee. The court system
also expressed concerns about managing these bonds. He said he
would continue to research the issue.
CHAIR FRENCH held HB 168 in committee.
3:09:35 PM
There being no further business to come before the committee,
Chair French adjourned the meeting at 3:09 p.m.
| Document Name | Date/Time | Subjects |
|---|