Legislature(2003 - 2004)
05/07/2003 01:32 PM Senate JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
HB 86-INJUNCTIONS AGAINST PERMITTED PROJECTS
CHAIR RALPH SEEKINS called the Senate Judiciary Standing
Committee meeting to order at 1:32 p.m. Present were Senators
Ogan and Therriault. The first order of business to come before
the committee was HB 86.
MR. JIM POUND, Staff to Representative Fate, sponsor of HB 86,
said it would provide a private remedy to permittees or owners
of state permitted projects who are the victims of frivolous or
obstructionist type litigation. In addition to any other penalty
or sanction otherwise currently provided by law, it will make a
person who initiates or maintains a malicious claim against a
state permitted project liable for damages by the lawsuit. It
specifies the type of damages the aggrieved person would be able
to seek. The cause of action is based on concepts established in
law for stating a claim for unlawful civil proceedings and abuse
of process. The benefits are that it avoids unfamiliar potential
ambiguous language and once adopted, the courts will be able to
draw up an existing case law from Alaska to help interpret and
apply the law. HB 86 only applies to egregious cases and will
not deter potential litigants from bringing legitimate
meritorious cases to court.
CHAIR SEEKINS stated they were considering CSSSHB 86(JUD) am,
version W.a.
SENATOR OGAN asked if there was a definition of malicious claim
in somewhere statute.
MR. POUND replied he didn't have a specific definition, but it
relates to various aspects of the word "malice."
Malicious, according to Black's Law, is characterized
by or involving malice, having or done with wicked or
evil, or mischievous intentions or motives, wrongful
or done intentionally without just cause or excuse or
as a result of ill will. That's according to the sixth
edition of Black's Law, 1990.
CHAIR SEEKINS said more than likely there was case law that
defined malice and asked if Senator Ogan was suggesting defining
"malice" for this section of the law.
MR. POUND noted that "malicious prosecution" has a lot of case
law behind it that could be part of the interpretation.
SENATOR FRENCH arrived at 1:40 p.m.
SENATOR FRENCH asked if frivolous could be malicious.
MR. POUND answered that a frivolous claim could be broader than
with malice. He thought the Supreme Court had actually defined
the term, but he didn't have a specific case to cite. He said
they are targeting mostly the types of lawsuits that are filed
after a permitted project has gone through the entire process.
These suits are often filed by professional non-profit law firms
and individuals who feel they didn't get a fair deal, even
though they were part of the entire process all the way through.
MR. DAVID GREEN, Executive Director, First Amendment Project,
said they are based in Oakland, California, and that Senator
French invited him to address the committee on the proposed
statute. The first amendment interest here is the right to
petition the government for redress of grievances. The U.S.
Supreme Court has spent a fair amount of time considering the
right to petition the government and has come up with a very
strong threshold requirement for someone to be immune from any
liability for petitioning the government. That includes filing
of a lawsuit or administrative action. They are immune unless
their petitioning activity was objectively baseless.
The main constitutional defect in the proposed statute is that
the Supreme Court has very clearly said regardless of what the
person's motive was in bringing the action, regardless of any
bad faith they may have had, if the action was not objectively
baseless, they are entitled to absolute immunity.
Objectively baseless usually means that no reasonable litigant
could realistically expect to secure favorable relief or that he
was lacking in any probable cause to institute the proceedings.
It's important that the test is objective, not subjective. One
of the reasons for this protection is to avoid any infection of
the person's subjective motives. This is in recognition that
once the discovery process is started, it has a very chilling
effect on a person exercising his first amendment rights.
The second part of the test is looking at improper purpose or
looking at whether the person bringing the lawsuit was seeking
genuine relief or just exploiting the process.
The third constitutional requirement was just affirmed by the
U.S. Supreme Court earlier this week in a telemarketing
decision. At any time you make provisions for an action that
might restrict one's first amendment rights, the burden of proof
is on the party bringing that action and it must be clear and
convincing.
MR. GREEN felt that the right to petition the government is
stronger is situations in which someone is suing the government
himself, because they do not believe the government is doing the
job it was supposed to do or has exceeded its authority or is
acting outside of its bounds. This proposed statute creates
potential liability for someone who was actually suing the
government. "I believe that the right to petition the government
should be protected more strongly than it is today in ordinary
civil litigation context."
1:55 p.m.
SENATOR FRENCH asked him if he was referring to the Professional
Real Estate Investors v. Columbia case.
MR. GREEN replied yes this is one of the leading cases in this
area.
SENATOR FRENCH asked if the Supreme Court rejected the
subjective inquiry and relied on objective analysis.
MR. GREEN replied yes. The Court was careful to say that not
only was the objective test required it was the threshold of
determination. You couldn't go further into the subjective
inquiry without making an objective finding first.
CHAIR SEEKINS asked if it was constitutional to award a certain
amount of damages to someone based on a frivolous claim, but not
on a malicious claim.
MR. GREEN replied that the Supreme Court said the lawsuit must
be objectively based and only if the litigation is objectively
meritless, can the Court examine the litigant's subjective
motivation.
The fact that it was malicious is not relevant until
you determine that it was baseless and that is
directly from the Supreme Court case. That indeed is
the argument that the Supreme Court rejected. The
question before them was - was the presence of bad
faith adequate and the Court said no.
CHAIR SEEKINS asked if it would be better to say a frivolous
"or" malicious case.
MR. GREEN replied that it would have to say "and", because it
requires both and added that he was not an authority on Rule 82.
MR. ALVIN ANDERS said he is representing himself and that he is
a member of the Libertarian party. He has the same problem with
the bill that other people bring up. He thought it would have a
chilling effect on small businesses and individuals who feel
they got a bad shake from the government. It sounds like they
are trying to outlaw thought crime and trying to fix a problem
that probably exists from having too much government already. He
said this would stop groups like the Institute for Justice, a
Libertarian group that fights eminent domain and things like
that.
SENATOR THERRIAULT asked if he would challenge the eminent
domain on the fact that the acreage is not needed or that an
improper price was being paid.
MR. ANDERS replied that the Institute for Justice is often
fighting eminent domain for a part of a larger effort that does
require some permits. Maybe the person does feel they got a bad
shake by having their property unlawfully taken and are using
their meager resources to try to stop the project until they
feel justice is done.
SENATOR FRENCH said when he was in law school, traffic stops
were used by police to sometimes harass a minority that they
thought might be breaking the law (by transporting cocaine), but
they didn't have any real good reason to pull them over. There
was a split in the Court of Appeals over whether or not you
would ever look inside a police officer's mind to see if he had
a bad reason for pulling someone over. The case got resolved
after years and years of fighting over it - in the Supreme Court
on a 9 - 0 vote. The Court said you don't look at the officer's
subjective intentions. This keeps you from having to
psychoanalyze the police officer about what he did in the field.
He didn't think you could penalize someone for having a terrible
reason for bringing a good lawsuit.
He felt that they needed to put "objectively baseless" in there
somewhere.
SENATORS Ogan and Therriault both said they needed more time
with this bill.
CHAIR SEEKINS said they would hold HB 86 for further discussion.
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