CSSB 97(JUD) am(ct rule fld)(efd fld): "An Act relating to public interest litigants and to attorney fees and costs and the posting of bonds or other security."
00 CS FOR SENATE BILL NO. 97(JUD) am(ct rule fld)(efd fld) 01 "An Act relating to public interest litigants and to attorney fees and costs and the 02 posting of bonds or other security." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. The uncodified law of the State of Alaska is amended by adding a new section 05 to read: 06 FINDINGS, PURPOSE, AND INTENT. (a) The legislature finds that 07 (1) the portion of the judicially created policy relating to the award of 08 enhanced attorney fees and enhanced costs to public interest litigants who prevail in part or in 09 full in a civil action or appeal that they initiate created an unbalanced set of incentives for 10 parties litigating issues that fall under the public interest litigant exception; 11 (2) this imbalance imposed significant costs on the state and municipalities 12 and, to a lesser degree, imposed unbalanced burdens on private citizens and businesses; 13 (3) the legislature responded to these and other problems with the public 14 interest litigant policy through the enactment of ch. 86, SLA 2003;
01 (4) the superior court has declared that certain reforms embodied in ch. 86, 02 SLA 2003, are beyond the legislature's authority or require a two-thirds vote of the 03 legislature; and 04 (5) while the legislature does not endorse the declaration of the superior court, 05 it seeks to avoid a clash with another branch of government by providing for more limited 06 reforms that are clearly within its authority. 07 (b) The purpose of sec. 2 of this Act is to provide for a more equal footing for parties 08 in civil actions and appeals by abrogating the special status given to public interest litigants 09 with respect to the award of attorney fees and costs. It is the intent of the legislature to 10 expressly overrule the decisions of the Alaska Supreme Court in Dansereau v. Ulmer, 955 11 P.2d 916 (Alaska 1998); Southeast Alaska Conservation Council, Inc. v. State, 665 P.2d 544 12 (Alaska 1983); Thomas v. Bailey, 611 P.2d 536 (Alaska 1980); Anchorage v. McCabe, 568 13 P.2d 986 (Alaska 1977); Gilbert v. State, 526 P.2d 1131 (Alaska 1974), and their progeny, 14 insofar as they relate to the award of attorney fees and costs to or against public interest 15 litigants in future civil actions and appeals. 16 (c) This Act does not preclude the enactment of, or create an implied repeal of, 17 specific statutes authorizing awards of costs or fees in particular situations, such as in 18 AS 45.50.537. 19 (d) Consistent with (c) of this section, this Act also is intended to enact a specific 20 statute governing the award of costs and fees in certain challenges to decisions of the Alaska 21 Board of Fisheries and the Alaska Board of Game. 22 * Sec. 2. AS 09.60.010 is amended by adding new subsections to read: 23 (f) Except as otherwise provided by statute, a court in this state may not 24 discriminate in the award of attorney fees and costs against a party in a civil action or 25 appeal based on the nature of the policy or interest advocated by the party, the number 26 of persons affected by the outcome of the case, whether a governmental entity could 27 be expected to bring or participate in the case, the extent of the party's economic 28 incentive to bring the case, or any combination of these factors. 29 (g) Except as otherwise provided by statute, a court in this state may not 30 discriminate in the award of attorney fees and costs to a party in a civil action or 31 appeal based on the nature of the policy or interest advocated by the party, the number
01 of persons affected by the outcome of the case, whether a governmental entity could 02 be expected to bring or participate in the case, the extent of the party's economic 03 incentive to bring the case, or any combination of these factors. 04 (h) In a civil action or appeal concerning the establishment, protection, or 05 enforcement of a right under the United States Constitution or the Constitution of the 06 State of Alaska, the court 07 (1) shall award, subject to (i) and (j) of this section, full reasonable 08 attorney fees and costs to a claimant, who, as plaintiff, counterclaimant, cross 09 claimant, or third-party plaintiff in the action or on appeal, has prevailed in asserting 10 the right; 11 (2) may not order a claimant to pay the attorney fees of the opposing 12 party devoted to claims concerning constitutional rights if the claimant as plaintiff, 13 counterclaimant, cross claimant, or third-party plaintiff in the action or appeal did not 14 prevail in asserting the right, the action or appeal asserting the right was not frivolous, 15 and the claimant did not have sufficient economic incentive to bring the action or 16 appeal regardless of the constitutional claims involved. 17 (i) In calculating an award of attorney fees and costs under (h)(1) of this 18 section, 19 (1) the court shall include in the award only that portion of the services 20 of claimant's attorney fees and associated costs that were devoted to claims concerning 21 rights under the United States Constitution or the Constitution of the State of Alaska 22 upon which the claimant ultimately prevailed; and 23 (2) the court shall make an award only if the claimant did not have 24 sufficient economic incentive to bring the suit, regardless of the constitutional claims 25 involved. 26 (j) The court, in its discretion, may abate, in full or in part, an award of 27 attorney fees and costs otherwise payable under (h) and (i) of this section if the court 28 finds, based upon sworn affidavits or testimony, that the full imposition of the award 29 would inflict a substantial and undue hardship upon the party ordered to pay the fees 30 and costs or, if the party is a public entity, upon the taxpaying constituents of the 31 public entity.
01 * Sec. 3. AS 09.68.040 is amended by adding a new subsection to read: 02 (d) A court in this state may not excuse a litigant requesting the entry of a stay 03 or other interlocutory relief from posting a bond or other security to protect the 04 persons who will be adversely affected if the excuse is based on the nature of the 05 policy or interest advocated by the party, the number of persons affected by the 06 outcome of the case, whether a governmental entity could be expected to bring or 07 participate in the case, the extent of the party's economic incentive to bring the case, or 08 any combination of these factors. 09 * Sec. 4. AS 16.05 is amended by adding a new section to read: 10 Sec. 16.05.812. Attorney fees and costs. In a civil action or appeal 11 challenging a decision, order, regulation, or other action of the commissioner, the 12 department, the Board of Fisheries, or the Board of Game regarding subsistence use of 13 fish and game, 14 (1) a prevailing private plaintiff shall be entitled to an award of its full 15 actual reasonable attorney fees and costs if the party does not have a sufficient 16 economic incentive to bring the case; and 17 (2) a private plaintiff who does not prevail may not be subject to an 18 award of attorney fees or costs against it unless the party has a sufficient economic 19 incentive to bring the case or the party's claim or claims are frivolous. 20 * Sec. 5. (This section did not receive the two-thirds majority vote of the senate required by 21 art. IV, sec. 15, Constitution of the State of Alaska.) 22 * Sec. 6. The uncodified law of the State of Alaska is amended by adding a new section to 23 read: 24 APPLICABILITY. Sections 2 - 5 of this Act apply to civil actions and appeals filed 25 on or after the effective date of this Act. 26 * Sec. 7. The uncodified law of the State of Alaska is amended by adding a new section to 27 read: 28 SEVERABILITY. Under AS 01.10.030, if any provision of this Act, or the 29 application of it to any person or circumstance is held to be invalid, the remainder of this Act 30 and the application to other persons or circumstances are not affected except that if 31 (1) AS 09.60.010(g) is held by the Alaska Supreme Court to be invalid or is
01 found to not effect a change to a court rule as provided in sec. 5 of this Act, then 02 AS 09.60.010(h), (i), and (j), AS 09.68.040(d), and AS 16.05.812 are not severable; 03 (2) the portion of AS 09.60.010(b), enacted by ch. 86, SLA 2003, relating to 04 awards of attorney fees to public interest litigants is held by the Alaska Supreme Court to be 05 invalid or is found to not effect a change to a court rule as provided in sec. 5 of this Act, then 06 AS 09.60.010(c), (d), and (e), AS 09.68.040(c), enacted by ch. 86, SLA 2003, and 07 AS 16.05.812 are not severable. 08 * Sec. 8. The uncodified law of the State of Alaska is amended by adding a new section to 09 read: 10 RETROACTIVITY. Sections 5(a) and (c) of this Act are retroactive to September 11, 11 2003. 12 * Sec. 9. The uncodified law of the State of Alaska is amended by adding a new section to 13 read: 14 CONDITIONAL EFFECT. Sections 1 - 8 of this Act take effect only if sec. 5 of this 15 Act receives the two-thirds majority vote of each house required by art. IV, sec. 15, 16 Constitution of the State of Alaska.