Legislature(2003 - 2004)
05/12/2003 03:18 PM House FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE BILL NO. 145
An Act relating to public interest litigants and to
attorney fees; and amending Rule 82, Alaska Rules of
Civil Procedure.
CHRIS KENNEDY, (TESTIFIED VIA TELECONFERENCE), ASSISTANT
ATTORNEY GENERAL, DEPARTMENT OF LAW, ANCHORAGE, commented on
the changes made to the work draft adopted on May 9, 2003.
He pointed out that the House Judiciary version of the bill
abolished public interest litigant's status and did so for
only cases involving decisions by one of the natural
resource agencies. Whereas, the proposed committee
substitute differs in two main ways:
· It does away with public interest litigant status in
all cases. It would abolish the public interest
litigant doctrine which is a common law doctrine by
the Alaska Supreme Court System about 25-years ago.
It also recreates something similar to the public
interest litigant doctrine by statute, only in
constitutional cases. The net result will be
regarding the question of special treatment for
attorney fee matters.
· It goes beyond the area of fees and into the area of
bonds and security that courts require for
preliminary injunctions. It insures that a variance
of a public interest litigant doctrine cannot be
used to create a special exemption-posting bond.
That issue resulted from a response from an
unpublished order in a Cook Inlet lawsuit. The
committee substitute preemptively does address that
issue in Section #3 by insuring that bonds or
securities protects the party that is being
restrained. Those kinds of bonds or securities will
be applied across the board rather than a potential
for discrimination. In those cases, the committee
substitute does not differentiate between
constitutional and non-constitutional.
Representative Berkowitz inquired what would be needed
before a person could qualify as a public interest litigant.
TAPE HFC 03 - 88, Side B
Mr. Kennedy explained that the current public litigant
status consists of a four-part test. The person must
qualify for all four items of the criteria.
· The case needs to be designed to effectuate strong
public policy.
· The case must be one in which numerous people would
benefit from the success of the lawsuit.
· It would have to be a case that only a private party
was expected to bring.
· The party bringing the case cannot have significant
economic incentive to otherwise bring the suit.
That requirement is the core of the public litigant
status.
Representative Berkowitz asked if there recently had been an
increase in public litigant litigation. Mr. Kennedy did not
know if there had been a recent increase. The number of
reported cases has been between 40 & 50. It is difficult to
project the total number of cases as many do not go to
appeal, which results in a reported decision. Often the
public interest doctrine plays into the way the case is
settled.
Representative Berkowitz asked what the language "plays a
role" means. Mr. Kennedy explained that one role could
create an uneven playing field in litigation. An adverse
outcome does not need to be of a concern to prevail. On the
other, should one of the claims be successful, there could
be a considerable award, which could include the attorney
fees. He suggested that the uneven incentive structure
encourages people to bring cases that include more
speculative claims than an ordinary litigant might incur.
Representative Berkowitz asked how many of those cases
involved natural resources. Mr. Kennedy stated
approximately 10% of the total.
Representative Berkowitz voiced concern that the legislation
attempts to fix problems with public litigant suits thus,
slowing down development statewide. He claimed that the
legislation was "over reactive" if indeed, only 10% of the
cases involved natural resources. Mr. Kennedy pointed out
that the committee substitute sought to address a broad
selection of cases, which is one of the fundamental
differences between the House Finance version and the House
Judiciary version. The House Judiciary version was aimed
solely at resource issues and cases; this legislation is
considerably broader.
Representative Berkowitz referenced the case involving the
Capital Information Group. Mr. Kennedy stated that there
had been quite a bit of litigation under the Public Records
Act and that there are times when the requestors prevail.
Representative Berkowitz asked if there was concern from the
Administration that eliminating this part of the public
interest litigant verbiage could have a "chilling" effect on
the transparency of government, making records less
accessible to the public. Mr. Kennedy responded that there
is no concern along those lines. He indicated that the
committee substitute does not create any penalty for that
type case but rather treats them similarly to other civil
litigation. The Administration hopes that by having this
set of incentives, it will become possible to focus on facts
of potential claims.
Co-Chair Williams pointed out Amendment #1, offered by
Representative Berkowitz. (Copy on File).
Representative Kerttula requested a breakdown from the
Attorney General's office of the cases that were either lost
or settled under public interest litigants. Mr. Kennedy
indicated that they do not keep complete records of that
nature. There is a chart of all awards made in the natural
resource cases over the last ten years. There has not been
a need to "pull together all the cases", that involved the
public litigant doctrine. In response to a query by
Representative Kerttula, Mr. Kennedy speculated that the
State had won most of those cases.
Representative Kerttula asked how high the bonds were. Mr.
Kennedy advised that the bonds could be quite high, since
their purpose was to keep the party from being enjoined and
added that there is no fixed amount for a preliminary
injunction.
Representative Kerttula asked if they had been routinely
waived for public interest litigants. Mr. Kennedy indicated
that recently there has been an expansion of that law. The
intent of the committee substitute is to guarantee that the
public interest doctrine is not expanded.
Representative Kerttula requested a copy of the unpublished
opinion. Mr. Kennedy agreed to provide that to the
Committee.
Representative Berkowitz MOVED Amendment #1. Co-Chair
Williams OBJECTED.
Representative Berkowitz explained that there are problems
experienced by public litigants and that the amendment would
address the delay brought about by court cases. He
speculated that the larger problem has to do with
uncertainty, not the process. The amendment preserves the
public interest litigants and would instead require an
expedited proceeding, to ensure that if there was a
challenge to regulation or permitting that it could be
addressed quickly with something equivalent to a criminal
"speedy trial".
Co-Chair Williams asked what would happen if neither side
could reach an agreement in the 120 days. Representative
Berkowitz explained, according to the criminal model, that
the party would have the option of choosing. The person who
is the subject of the suit would control the delay in the
process, not the person bringing it.
Mr. Kennedy noted that the Administration would oppose
Amendment #1. He maintained that the amendment would change
the "thrust of the bill". He noted that the intent of the
legislation was to reform the public interest litigation
policy, and that the current system encourages "kitchen
sink" litigation. Mr. Kennedy commented that the committee
substitute was protective of constitutional rights, creating
special treatment and simplifies the doctrine for those
cases, thus, lowering the bar. The legislation is more
protective of constitutional rights than is current law.
Mr. Kennedy pointed out that the substance of the amendment
would add a new Section #1. He acknowledged Representative
Berkowitz's desire to expedite the process, adding that in
an effort to change the manner in which civil litigation is
handled and changing the court schedule are complex issues
and should be worked out carefully. The Administration
would be reluctant to have the Legislature add such language
without the opportunity to consult with trial attorneys. He
reiterated that the Administration would oppose Amendment
#1.
Representative Berkowitz questioned the theory that the
amendment would increase litigation. He stressed that it
would leave the field basically unchanged. He added that
the proposed fundamental change is complex and needs careful
working, which goes to the heart of the bill. The public
litigant doctrine is a "central issue of democracy" and is
one of the few areas in which a single citizen could "stand
up and try to affect change". He stressed that it is
tremendously significant.
Representative Berkowitz acknowledged that the
Administration might not support the amendment, but pointed
out the purposes indicated, the most important purpose is
the significant costs associated with the process to the
State and private citizens. He reiterated that those costs
result from delays and uncertainties.
A roll call vote was taken on the motion.
IN FAVOR: Moses, Berkowitz, Kerttula
OPPOSED: Stoltze, Whitaker, Chenault, Foster, Hawker,
Meyer, Harris, Williams
The MOTION FAILED (3-8).
Representative Foster MOVED to report CS HB 145 (FIN) out of
Committee with individual recommendations and with the
accompanying fiscal note.
Representative Kerttula OBJECTED.
Representative Kerttula emphasized that the problems with
private parties often revolve around delays. Cases in which
public interest litigants have been successful, normally
involve local community cases. She stated that when those
cases are lost, the Alaska Supreme Court System has decided
that those people should not be responsible to burden the
"looser pay rule". Alaska is the only State that uses that
rule and is an unusual rule in America. The legislation
will cut off an important avenue allowing for certain cases
to come forward and not facing the kind of financial burden
that would exist in another case. She noted that she did
not support the bill and would continue to work to define
amendments for the House Floor.
Representative Berkowitz commented that he had not observed
"real evidence" around how difficult public interest
litigants are. The difficult nature of public interest
litigation addresses subsistence, reapportionment, recall,
access, fishing and zoning violations. That is what every
person does when the government is not doing that job for
him or her. This is an ancient doctrine, which allows
people to stand up when the laws are not being enforced.
The proposed legislation is a sustained attack on the
public. The current version should have been brought
forward before the House Judiciary Committee because of the
serious legal ramifications. The bill must be improved; the
House Finance Committee does not understand the consequences
of why it is before them.
A roll call vote was taken on the motion.
IN FAVOR: Stolze, Whitaker, Chenault, Foster, Hawker,
Meyer, Williams, Harris
OPPOSED: Berkowitz, Kerttula, Moses
The MOTION PASSED (8-3).
CS HB 145 (FIN) was reported out of Committee with a "no
recommendation" and with zero note #1 by the Department of
Law and zero note #3 by the Department of Administration.
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