Enrolled HB 145: Prohibiting discrimination in the awarding of attorney fees and costs in civil actions or appeals to or against, or in the posting of bonds or other security by, public interest litigants; and relating to awards of attorney fees and costs in cases involving enforcement of constitutional rights.
00Enrolled HB 145 01 Prohibiting discrimination in the awarding of attorney fees and costs in civil actions or 02 appeals to or against, or in the posting of bonds or other security by, public interest litigants; 03 and relating to awards of attorney fees and costs in cases involving enforcement of 04 constitutional rights. 05 _______________ 06 * Section 1. The uncodified law of the State of Alaska is amended by adding a new section 07 to read: 08 PURPOSE. (a) The judicially created doctrine respecting the award of attorney fees 09 and costs for or against public interest litigants has created an unbalanced set of incentives for 10 parties litigating issues that fall under the public interest litigant exception. This imbalance 11 has led to increased litigation, arguments made with little merit, difficulties in compromising 12 claims, and significant costs to the state and private citizens. More importantly, application of 13 the public interest litigant exception has resulted in unequal access to the courts and unequal 14 positions in litigation.
01 (b) The purpose of sec. 2 of this Act to provide for a more equal footing for parties in 02 civil actions and appeals by abrogating the special status given to public interest litigants with 03 respect to the award of attorney fees and costs. It is the intent of the legislature to expressly 04 overrule the decisions of the Alaska Supreme Court in Dansereau v. Ulmer, 955 P.2d 916 05 (Alaska 1998); Southeast Alaska Conservation Council, Inc. v. State, 665 P.2d 544 (Alaska 06 1983); Thomas v. Bailey, 611 P.2d 536 (Alaska 1980); Anchorage v. McCabe, 568 P.2d 986 07 (Alaska 1977); Gilbert v. State, 526 P.2d 1131 (Alaska 1974), and their progeny, insofar as 08 they relate to the award of attorney fees and costs to or against public interest litigants in 09 future civil actions and appeals. 10 (c) This Act does not preclude the enactment of specific statutes authorizing awards 11 of costs or fees in particular situations, such as in AS 45.50.537. 12 * Sec. 2. AS 09.60.010 is amended by adding new subsections to read: 13 (b) Except as otherwise provided by statute, a court in this state may not 14 discriminate in the award of attorney fees and costs to or against a party in a civil 15 action or appeal based on the nature of the policy or interest advocated by the party, 16 the number of persons affected by the outcome of the case, whether a governmental 17 entity could be expected to bring or participate in the case, the extent of the party's 18 economic incentive to bring the case, or any combination of these factors. 19 (c) In a civil action or appeal concerning the establishment, protection, or 20 enforcement of a right under the United States Constitution or the Constitution of the 21 State of Alaska, the court 22 (1) shall award, subject to (d) and (e) of this section, full reasonable 23 attorney fees and costs to a claimant, who, as plaintiff, counterclaimant, cross 24 claimant, or third-party plaintiff in the action or on appeal, has prevailed in asserting 25 the right; 26 (2) may not order a claimant to pay the attorney fees of the opposing 27 party devoted to claims concerning constitutional rights if the claimant as plaintiff, 28 counterclaimant, cross claimant, or third-party plaintiff in the action or appeal did not 29 prevail in asserting the right, the action or appeal asserting the right was not frivolous, 30 and the claimant did not have sufficient economic incentive to bring the action or 31 appeal regardless of the constitutional claims involved.
01 (d) In calculating an award of attorney fees and costs under (c)(1) of this 02 section, 03 (1) the court shall include in the award only that portion of the services 04 of claimant's attorney fees and associated costs that were devoted to claims concerning 05 rights under the United States Constitution or the Constitution of the State of Alaska 06 upon which the claimant ultimately prevailed; and 07 (2) the court shall make an award only if the claimant did not have 08 sufficient economic incentive to bring the suit, regardless of the constitutional claims 09 involved. 10 (e) The court, in its discretion, may abate, in full or in part, an award of 11 attorney fees and costs otherwise payable under (c) and (d) of this section if the court 12 finds, based upon sworn affidavits or testimony, that the full imposition of the award 13 would inflict a substantial and undue hardship upon the party ordered to pay the fees 14 and costs or, if the party is a public entity, upon the taxpaying constituents of the 15 public entity. 16 * Sec. 3. AS 09.68.040 is amended by adding a new subsection to read: 17 (c) A court in this state may not excuse a litigant requesting the entry of a stay 18 or other interlocutory relief from posting a bond or other security to protect the 19 persons who will be adversely affected if the excuse is based on the nature of the 20 policy or interest advocated by the party, the number of persons affected by the 21 outcome of the case, whether a governmental entity could be expected to bring or 22 participate in the case, the extent of the party's economic incentive to bring the case, or 23 any combination of these factors. 24 * Sec. 4. The uncodified law of the State of Alaska is amended by adding a new section to 25 read: 26 APPLICABILITY. This Act applies to all civil actions and appeals filed on or after 27 the effective date of this Act.