03/28/2014 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB47 | |
| HB218 | |
| SB201 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HB 47 | TELECONFERENCED | |
| += | HB 218 | TELECONFERENCED | |
| += | SB 201 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
March 28, 2014
2:03 p.m.
MEMBERS PRESENT
Senator John Coghill, Chair
Senator Lesil McGuire, Vice Chair
Senator Donald Olson
Senator Bill Wielechowski
MEMBERS ABSENT
Senator Fred Dyson
COMMITTEE CALENDAR
CS FOR HOUSE BILL NO. 47(JUD)
"An Act requiring a party seeking a restraining order,
preliminary injunction, or order vacating or staying the
operation of certain permits affecting an industrial operation
to give security in the amount the court considers proper for
costs incurred and damages suffered if the industrial operation
is wrongfully enjoined or restrained."
- HEARD AND HELD
CS FOR HOUSE BILL NO. 218(JUD)
"An Act relating to the aggravating factor at felony sentencing
of multiple prior misdemeanors when a prior misdemeanor involves
an assault on a correctional employee; providing that
deportation is not a proper factor for referral of a case to a
three-judge panel for sentencing for a felony; and providing for
an effective date."
- MOVED SCS CSHB 218(JUD) OUT OF COMMITTEE
SENATE BILL NO. 201
"An Act relating to the crime of trespass."
- MOVED CSSB 201(JUD) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HB 47
SHORT TITLE: INJUNCTION SECURITY: INDUSTRIAL OPERATION
SPONSOR(s): REPRESENTATIVE(s) FEIGE, CHENAULT
01/16/13 (H) PREFILE RELEASED 1/11/13
01/16/13 (H) READ THE FIRST TIME - REFERRALS
01/16/13 (H) JUD
01/30/13 (H) JUD AT 1:00 PM CAPITOL 120
01/30/13 (H) Heard & Held
01/30/13 (H) MINUTE(JUD)
02/10/14 (H) JUD AT 1:00 PM CAPITOL 120
02/10/14 (H) Heard & Held
02/10/14 (H) MINUTE(JUD)
02/14/14 (H) JUD AT 1:00 PM CAPITOL 120
02/14/14 (H) -- MEETING CANCELED --
02/19/14 (H) JUD AT 1:00 PM CAPITOL 120
02/19/14 (H) Moved CSHB 47(JUD) Out of Committee
02/19/14 (H) MINUTE(JUD)
02/21/14 (H) JUD RPT CS(JUD) NT 4DP 2NR
02/21/14 (H) DP: MILLETT, LEDOUX, LYNN, KELLER
02/21/14 (H) NR: FOSTER, GRUENBERG
03/12/14 (H) TRANSMITTED TO (S)
03/12/14 (H) VERSION: CSHB 47(JUD)
03/14/14 (S) READ THE FIRST TIME - REFERRALS
03/14/14 (S) JUD
03/24/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/24/14 (S) Heard & Held
03/24/14 (S) MINUTE(JUD)
03/28/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: HB 218
SHORT TITLE: SENTENCING;AGGRAVATOR/DEPORTATION STATUS
SPONSOR(s): REPRESENTATIVE(s) CHENAULT, MILLETT, HERRON, LYNN
01/21/14 (H) PREFILE RELEASED 1/10/14
01/21/14 (H) READ THE FIRST TIME - REFERRALS
01/21/14 (H) JUD
02/12/14 (H) JUD AT 1:00 PM CAPITOL 120
02/12/14 (H) Heard & Held
02/12/14 (H) MINUTE(JUD)
02/21/14 (H) JUD AT 1:00 PM CAPITOL 120
02/21/14 (H) Heard & Held
02/21/14 (H) MINUTE(JUD)
02/24/14 (H) JUD AT 1:00 PM CAPITOL 120
02/24/14 (H) Moved CSHB 218(JUD) Out of Committee
02/24/14 (H) MINUTE(JUD)
02/26/14 (H) JUD RPT CS(JUD) NT 4DP 1NR 2AM
02/26/14 (H) DP: MILLETT, LYNN, PRUITT, KELLER
02/26/14 (H) NR: FOSTER
02/26/14 (H) AM: LEDOUX, GRUENBERG
03/14/14 (H) TRANSMITTED TO (S)
03/14/14 (H) VERSION: CSHB 218(JUD)
03/14/14 (S) READ THE FIRST TIME - REFERRALS
03/14/14 (S) JUD
03/24/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/24/14 (S) Heard & Held
03/24/14 (S) MINUTE(JUD)
03/28/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: SB 201
SHORT TITLE: CRIMINAL TRESPASS ON PRIVATE PROPERTY
SPONSOR(s): SENATOR(s) STEDMAN
02/24/14 (S) READ THE FIRST TIME - REFERRALS
02/24/14 (S) JUD
03/17/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/17/14 (S) Heard & Held
03/17/14 (S) MINUTE(JUD)
03/28/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
WITNESS REGISTER
LINDA HAY, Staff
Representative Eric Feige
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Provided information related to HB 47 on
behalf of the sponsor.
RUTH HAMILTON HEESE, Assistant Attorney General
Civil Division
Environmental Section
Department of Law
Juneau, Alaska
POSITION STATEMENT: Answered questions related to HB 47.
JOHN HUTCHINS, Assistant Attorney General
Civil Division
Oil, Gas & Mining Section
Department of Law
Juneau, Alaska
POSITION STATEMENT: Answered questions related to HB 47.
JAMES SULLIVAN
Southeast Alaska Conservation Council (SEACC)
Juneau, Alaska
POSITION STATEMENT: Testified in opposition to HB 47.
RICK ROGERS, Executive Director
Resource Development Council (RDC)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 47.
TOM WRIGHT, Staff
Representative Mike Chenault
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Explained the U.3 amendment to HB 218.
ANNE CARPENETI, Assistant Attorney General
Criminal Division
Legal Services Section
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Commented on the U.3 amendment to HB 218.
QUINLAN STEINER, Public Defender
Public Defender Agency
Department of Administration (DOA)
POSITION STATEMENT: Commented on the U.3 amendment to HB 218.
DARWIN PETERSON, Staff
Senator Bert Stedman
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Explained the difference between the
original version of SB 201 and Version U.
ACTION NARRATIVE
2:03:14 PM
CHAIR JOHN COGHILL called the Senate Judiciary Standing
Committee meeting to order at 2:03 p.m. Present at the call to
order were Senators Wielechowski, McGuire, Olson, and Chair
Coghill.
HB 47-INJUNCTION SECURITY: INDUSTRIAL OPERATION
2:03:50 PM
CHAIR COGHILL announced the consideration of HB 47. "An Act
requiring a party seeking a restraining order, preliminary
injunction, or order vacating or staying the operation of
certain permits affecting an industrial operation to give
security in the amount the court considers proper for costs
incurred and damages suffered if the industrial operation is
wrongfully enjoined or restrained." [CSHB 47(JUD) was before the
committee.] Noting that this was the second hearing, he asked
Ms. Hay if she had any information to add.
2:04:21 PM
LINDA HAY, Staff, Representative Eric Feige, Alaska State
Legislature, Juneau, Alaska, said Ruth Hamilton Heese is online
to address the question that Senator Wielechowski had about the
DEC provisions. She added that the sponsor worked closely with
the administration during the Interim to address the concerns on
permits that the state has received from the federal government
through primacy. She noted that Ed Fogels with the Department of
Natural Resources (DNR) was available to answer questions about
primacy regarding surface coal and Nancy Meade was available to
address suggestions from the Court System.
SENATOR WIELECHOWSKI asked the Department of Law why clean air
and clean water was exempt.
RUTH HAMILTON HEESE, Assistant Attorney General, Civil Division,
Environmental Section, Department of Law Juneau, Alaska,
explained that the state agencies were concerned that EPA or the
Department of Interior might view the injunction provision as
chilling third party access to the court and withdraw approval
of the program. [Teleconference terminated due to indiscernible
audio.]
2:07:54 PM
JOHN HUTCHINS, Assistant Attorney General, Civil Division, Oil,
Gas & Mining Section, Department of Law, Juneau, Alaska, offered
to answer questions.
SENATOR WIELECHOWSKI referenced page 1, line 9, and asked how he
envisions the courts will determine what constitutes proper
security.
MR. HUTCHINS offered his expectation that it would work in much
the same way as securing a bond for a preliminary injunction.
The court makes a determination about the amount of security
based on testimony during the hearing.
SENATOR WIELECHOWSKI asked how much it might cost a middle class
homeowner who is trying to enjoin a multimillion dollar mine on
the adjacent property.
MR. HUTCHINS said he didn't believe the language would change
the amount that is required under existing Rule 65, but it does
have the effect of asking courts to look at broader policy
considerations and the impact of the injunction on people
generally.
SENATOR WIELECHOWSKI asked, under the current Court Rule 65, if
there was a security requirement for an order vacating or
staying the operation of certain permits.
MR. HUTCHINS replied Court Rule 65 only addresses injunctions.
SENATOR WIELECHOWSKI asked if this was a new provision.
MR. HUTCHINS answered yes.
SENATOR WIELECHOWSKI asked if there was an exemption for an
average homeowner who could not afford to challenge a large
industrial corporation if the homeowner thought a permit was
wrongfully issued.
MR. HUTCHINS said no, but if the homeowner can show irreparable
injury the court has discretion under Court Rule 65 and
discretion under this statute to set a bond that is fair.
SENATOR WIELECHOWSKI pointed out that the language on page 1,
lines 12-14 appears to remove much of the discretion that the
court currently has under Court Rule 65.
MR. HUTCHINS responded that the purpose of Court Rule 65 is to
try to reach a fair allocation of costs, and it too has
mandatory language. He opined that what the wages and benefits
language adds is a look at both the costs sustained by the
industrial operation and the potential impact on workers and
contractors who may or may not be parties to the litigation.
CHAIR COGHILL opened public testimony.
2:17:18 PM
JAMES SULLIVAN, Southeast Alaska Conservation Council (SEACC),
stated that SEACC opposes HB 47 in the belief that Alaskans
should always have the right to petition the court if they
believe that the government has not done its job properly or if
a corporation isn't following the terms of its permit. He
maintained that HB 47 created double standards within the legal
system by exempting permits under the Clean Water Act, the Clean
Air Act, and surface coal mining. This was done because the
state was concerned that it would lose its ability to administer
permits under those federal programs. This patchwork approach
imposes bonding requirements for some permits but not for
others. He further highlighted that this law protects the state
and municipalities from having to bond, but not private citizens
and tribal groups, or Alaskan organizations.
MR. SULLIVAN explained that when an Alaska court makes a
decision on a temporary restraining order or a preliminary
injunction, the plaintiff must show balance of hardships or
irreparable harm. Because this standard is already very high the
bill doesn't solve any problems, but it would send a clear
message to Alaskans that this legislature believes that the
value of Alaskans' rights is commensurate to the value of their
checkbook. That would be an unfortunate message to send, which
is why SEACC opposes HB 47, he concluded.
SENATOR OLSON commented that in the recent past Alaska
environmental issues have become an international football. Some
groups that don't have Alaska's best interest at heart are
joining litigation and taking advantage of people in the rural
areas and trying to inhibit activities like reindeer herding and
hunting. He questioned how to create a reasonable balance
between the varied interests because litigation is very
expensive.
MR. SULLIVAN agreed that litigation can be very costly, but it
is SEACC's belief that no one should be financially intimidated
from accessing the court. Every Alaskan should have the ability
to go to court and say their rights are being violated without
having a financial backer.
SENATOR WIELECHOWSKI argued that the law as it exists already
protects Alaskans. To get a restraining order right now the
plaintiff has to prove irreparable harm and post a bond. If the
plaintiff loses they'll have to pay attorney's fees under Court
Rule 82. He opined that the law is already weighted in favor of
industry and HB 47 tips it further by increasing the bond
requirement. The average Alaskan won't be able to afford to go
to court to get the relief that they are constitutionally
entitled to seek, he said.
2:23:38 PM
RICK ROGERS, Executive Director, Resource Development Council
(RDC), Anchorage, Alaska, stated that RDC supports a rigorous
science-based permitting system that allows responsible
development of Alaska's resources. RDC also supports public
input through the public process, but too often opponents of
projects file litigation after the process is complete and it
delays or stops the permitted development. If the litigation
ultimately is found to have no merit, it is the Alaska workers
who suffer the most from lost wages and opportunities. HB 47
helps rectify this by requiring parties seeking a restraining
order to post a bond to cover lost wages or benefits if the
[project] is found to be wrongfully enjoined.
RDC does not believe that the bill prevents appeals or
litigation of state permits or that it restricts the rights of
public interest litigants. It does force public interest
litigants to recognize that there is a financial risk of their
actions and it does provide security for Alaska workers. For
these reasons, RDC supports HB 47.
CHAIR COGHILL asked Ms. Hay if she would like to speak to the
issue of the public interest litigant and small property owners.
MS. HAY responded that Court Rule 65(c) already says that a bond
is required and the amount is at the discretion of the court.
Legislative Legal essentially said the courts already have the
ability to take wages into account and HB 47 simply highlights
that as one relevant economic factor the court should consider.
With regard to the homeowner who has a mine next door, that
person would have had ample opportunity to talk about it during
the permitting process. And if a permit isn't being followed,
that should be addressed by the department that issued the
permit, not the court.
SENATOR OLSON said he assumes that the bill is in response to
the suit filed by Bella Hammond and Vic Fischer to stop the
Pebble Mine, and he wonders how someone from Shishmaref or
Noatak could afford to challenge a major project next door now
that there is no longer an ability to do so under the Coastal
Zone Management Plan. This appears to be another impediment to
the people in rural areas, he said.
MS. HAY responded that HB 47 affects industrial operations that
occur on state land going forward. It was not crafted for Pebble
Mine, but it is one of those operations.
2:30:50 PM
CHAIR COGHILL announced he would hold HB 47 in committee for
further consideration.
HB 218-SENTENCING;AGGRAVATOR/DEPORTATION STATUS
2:31:10 PM
CHAIR COGHILL announced the consideration of HB 218. "An Act
relating to the aggravating factor at felony sentencing of
multiple prior misdemeanors when a prior misdemeanor involves an
assault on a correctional employee; providing that deportation
is not a proper factor for referral of a case to a three-judge
panel for sentencing for a felony; and providing for an
effective date." He noted this was the second hearing and there
was an amendment for the committee to consider.
2:31:39 PM
SENATOR MCGUIRE moved to adopt Amendment 1, labeled 28-
LS0941\U.3.
CHAIR COGHILL objected for an explanation.
AMENDMENT 1
OFFERED IN THE SENATE
TO: CSHB 218(JUD)
Page 6, line 18:
Delete "or that collateral consequences may or
will result if the defendant is classified as
deportable"
Page 6, line 26:
Delete "or that collateral consequences may or
will result if the defendant is classified as
deportable"
2:31:46 PM
TOM WRIGHT, Staff, Representative Mike Chenault, Alaska State
Legislature, Juneau, Alaska, explained that Public Defender
Quinlan Steiner brought the amendment forward after the first
hearing and then worked with the Department of Law on compromise
language. The essence is that deportation will not be a
consideration in requesting a three-judge panel, whereas unduly
harsh collateral consequences may be taken into consideration
for requesting a three-judge panel.
2:33:04 PM
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Legal Services Section, Department of Law (DOL), Juneau, Alaska,
affirmed that DOL discussed this with the Public Defender Agency
and arrived at a fair compromise. She summarized that the fact
of being deportable is not something that can go to a three-
judge panel for sentencing, but if the defendant can establish
unduly harsh collateral consequences and the sentencing judge
finds that those claims are proved by clear and convincing
evidence, that could be considered as a basis for going to a
three-judge panel.
2:34:03 PM
QUINLAN STEINER, Public Defender, Public Defender Agency,
Department of Administration (DOA), said the intent of the
amendment is to preserve a defendant's ability to plead unduly
harsh collateral consequences that may flow from an eventual
deportation, but the defendant would not be able to plead the
fact that he/she would be deported as grounds for obtaining a
three-judge panel.
SENATOR WIELECHOWSKI asked for examples where keeping the
provision would result in one decision and removing it would
result in a different decision.
MS. CARPENETI said a person whose sentence range is high enough
to be considered deportable by immigration authorities would not
be able to argue that fact to qualify for a three-judge panel.
Whereas if the person was Syrian, for example, and could
establish by clear and convincing evidence that the effect of
being deported to Syria would result in unduly harsh collateral
consequences, that could be argued to qualify for a three-judge
panel.
MR. STEINER added that if a person was trying to plead the fact
that they'd be deported and nothing more, they wouldn't be
entitled to argue that to obtain a three-judge panel. But if the
person could plead some further consequence of the deportation
such as it would result in death, then the person could argue
that that qualifies for a three-judge panel.
SENATOR MCGUIRE stated support for the amendment because it
accommodates people seeking political asylum who might face
murder if they're deported.
CHAIR COGHILL removed his objection and Amendment 1 was adopted.
Finding no further questions or comments, he solicited a motion.
2:37:53 PM
SENATOR MCGUIRE moved to report CS for HB 218, as amended, from
committee with individual recommendations and attached fiscal
note(s).
CHAIR COGHILL announced that without objection, SCS CSHB
218(JUD) passes from the Senate Judiciary Standing Committee.
2:38:15 PM
At Ease
SB 201-CRIMINAL TRESPASS ON PRIVATE PROPERTY
2:39:51 PM
CHAIR COGHILL reconvened the meeting and announced the
consideration of SB 201. "An Act relating to the crime of
trespass." He noted this was the second hearing and there was a
new committee substitute (CS).
2:40:08 PM
SENATOR MCGUIRE moved to adopt the work draft CS for SB 201,
labeled 28-LS1470\U, for discussion purposes.
CHAIR COGHILL objected for discussion purposes.
2:40:37 PM
DARWIN PETERSON, Staff, Senator Bert Stedman, Alaska State
Legislature Juneau, Alaska, explained that the original version
of SB 201 deleted AS 11.46.350(b) and (c), which would
essentially eliminate the need to post a "no trespassing" sign
in order to keep people off your private property. The committee
substitute (CS) now deletes just AS 11.46.350(c), which is the
description of what the "no trespassing" sign should look like
and specifies where the sign has to be placed on the property.
Under the CS, a private landowner would have to post a "no
trespassing" sign on his/her property but there wouldn't be a
requirement that it's posted at every possible entry point to
the property.
CHAIR COGHILL said he brought the CS forward because the current
statute imposes huge liability on the property owner because the
posting requirements are so technical and exacting. The simple
requirements to personally communicate or post are reasonable,
he said.
SENATOR WIELECHOWSKI asked how the courts have defined
"reasonably conspicuous manner" and what that requires for
trespass signs.
MR. PETERSON offered to follow up with the definition.
CHAIR COGHILL said he would make sure the answer was distributed
to all the committee members.
2:44:11 PM
SENATOR STEDMAN, Alaska State Legislature, Juneau, Alaska,
sponsor of SB 201, summarized that the intent of the bill is to
have the private property owner post a "no trespassing" sign,
but not require one to be posted on every access point. He
stated support for the CS saying that it makes a better bill.
CHAIR COGHILL removed his objection.
SENATOR WIELECHOWSKI asked what the penalty is for trespassing.
MR. PETERSON replied it's a class B misdemeanor.
CHAIR COGHILL asked what level of proof is needed for a
misdemeanor.
SENATOR WIELECHOWSKI answered it's beyond a reasonable doubt. He
then asked if the Castle Doctrine extends to property or just a
person's house.
MR. PETERSON said he didn't know.
2:47:48 PM
CHAIR COGHILL found no further questions or objection and stated
that Version U was adopted. He solicited a motion.
2:47:56 PM
SENATOR MCGUIRE moved to report CS for SB 201, Version U, from
committee with individual recommendations and attached fiscal
note(s).
CHAIR COGHILL announced that without objection, CSSB 201(JUD)
passes from the Senate Judiciary Standing Committee.
2:48:48 PM
There being no further business to come before the committee,
Chair Coghill adjourned the Senate Judiciary Standing Committee
meeting at 2:48 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| CSSB 201.pdf |
SJUD 3/28/2014 1:30:00 PM |
SB 201 |
| HB 218 Amendment.PDF |
SJUD 3/28/2014 1:30:00 PM |
HB 218 |
| HB 47 - Written Testimony.pdf |
SJUD 3/28/2014 1:30:00 PM |
HB 47 |
| Written Testimony - SB 201.pdf |
SJUD 3/28/2014 1:30:00 PM |
SB 201 |