Legislature(2003 - 2004)
04/28/2003 02:10 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 145 - ATTY FEES: PUBLIC INTEREST LITIGANTS [Contains mention that a proposed clarifying amendment to HB 145 resulted from Senate committee hearings on SB 97, companion bill to HB 145.] Number 0776 CHAIR McGUIRE announced that the final order of business would be HOUSE BILL NO. 145, "An Act relating to public interest litigants and to attorney fees; and amending Rule 82, Alaska Rules of Civil Procedure." Number 0732 CRAIG TILLERY, Assistant Attorney General, Environmental Section, Civil Division (Anchorage), Department of Law (DOL), said that HB 145 is a bill related to public interest litigant [attorney] fees. He offered that currently, public interest litigants are entitled to full attorney fees if they win a case; are entitled to "no fees against them" if they lose a case; receive full fees if they win one issue out of many that they may allege; and may be entitled to fees in some cases, even if they don't win at all but it is viewed that the government later changed its actions partially in response to the lawsuit. This law is not in a rule of the court, he noted, but rather was developed by the Alaska Supreme Court through case law. It applies to civil actions and to administrative appeals. MR. TILLERY relayed that during the last legislative session, SB 183 was proposed, and it applied to [Civil Rule 82 of the Alaska Rules of Civil Procedure], and would have eliminated the public interest litigant rule in all cases; SB 183 passed the Senate but not the House. HB 145 is different in that it is far more limited. It applies only to decisions by the Department of Environmental Conservation (DEC), the Department of Natural Resources (DNR), and the Alaska Department of Fish and Game (ADF&G) that are coastal consistency determinations, that adopt regulation, or that have had an opportunity for public comment and administrative review. MR. TILLERY said that under HB 145, in the aforementioned circumstances, public interest litigants would be treated the same as any other litigant. He reasoned that each of the aforementioned situations represents "something where public participation has already been paid for and where there's already been extensive public participation on the decision." He mentioned that members should have a proposed amendment before them that reflects some clarifications that came out of hearings in the Senate on the companion bill to HB 145 - SB 97; this proposed amendment read [original punctuation provided]: Page 1, line 1, following "fees", through line 2: Delete "; and amending Rule 82, Alaska Rules of Civil Procedure" Page 1, line 11, following "action": Insert "or an appeal from an administrative agency," Page 1, line 13, following "Resources", through line 14: Delete "making a coastal consistency determination, adopting" Insert "through which one or more of those agencies makes a coastal consistency determination or adopts" Page 2, line 3, following "litigant" through line 5: Delete "as provided in Rule 82(g), Alaska Rules of Civil Procedure, on the effective date of this Act" Insert "in the same manner as attorney's fees may be awarded to or against a non-public interest litigant" Page 2, line 6, through page 3, line 2: Delete all material and insert new bill section to read: "* Sec. 2. AS 09.60.010 is amended by adding a new subsection to read: (b) In this section, "public interest litigant" means a party bringing a civil action or appeal that (1) is designed to effectuate strong public policies; (2) will benefit numerous people; (3) could only be expected to be brought by a private party; and (4) the party bringing the civil action or appeal would lack sufficient economic incentive to bring if it did not involve issues of general importance. * Sec. 3. The uncodified law of the State of Alaska is amended by adding a new section to read: APPLICABILITY. This Act applies to all civil actions and appeals filed on or after the effective date of this Act." MR. TILLERY explained that this proposed amendment is intended to do three things. First, it clarifies that the bill applies to both civil actions and to administrative appeals. The reason for this is because many instances in which public interest litigant [attorney] fees are awarded are administrative appeals. Second, it clarifies that HB 145 only applies to the three aforementioned types of decisions by the DEC, the DNR, and the ADF&G. Third, the proposed amendment would delete a proposed change to Civil Rule 82(b), thus allowing the legislation to proceed simply as a change in statute rather as a court rule change. Number 0512 MR. TILLERY offered that the purpose of HB 145 is to balance the incentives in litigation between those who attack a state resource agency decision and those who would defend it. Changing the law would force all potential public interest litigants to make the essential cost/benefit analysis that all other potential litigants do prior to filing a lawsuit, that is, does the benefit gained by going to court outweigh the risk of loss and the transaction costs of going to court. Since most public interest litigants and public interest organizations involved in natural resource issues are fairly well financed, he opined, they can engage effectively in this "calculus" without any disadvantage. MR. TILLERY noted that there are firms, both in Alaska and in other states, that deal with public interest issues, and that most public interest lawsuits end up being against the state and are costly to defend. The state's fiscal situation, he remarked, could lead the specter of potential fees playing a role in decisions made by the state. "Public interest fees are also available against private individuals, which may or may not be affected by the potential for such fees, depending upon the size of the project and the size of the entity that wishes to engage in a project," he stated. MR. TILLERY also offered that HB 145 is intended to reduce the incentive to assert excessive, unjustified claims, that is, to reduce the potential incentive for parties to file claims with multiple - even a hundred - various causes of action in the hopes that some of them will later be proven justified and then, under the "doctrine of non-apportionment," the parties can recover attorney fees. "It also should make it easier to compromise cases, as frequently these public interest litigant cases will become 'mooted out,' will somehow become no longer relevant, but we still end up in fights in the supreme court ... [relating to attorney] fees only," he added. Number 0368 MR. TILLERY said that philosophically, the approach of the administration is that HB 145 is very narrowly drawn. In the last 11 years, only 23 of the 43 fee orders that the state has had to pay were from natural resource cases, representing about $760,000 in awards. The bill and [the proposed amendment] would not penalize litigation or restrict lawsuits, he assured the committee; instead, all it does is reduce the positive incentive that the [Alaska] Supreme Court has introduced into [the issue of] attorney fees. MR. TILLERY opined that the bill provides a level playing field for all parties, and only includes situations where there is already extensive state-funded public involvement, those being coastal consistency determinations; regulations, where there is public notice, public comment, and - often but not always - hearings; and decisions which have had an opportunity for public comment and administrative review. He assured the committee that the courts would remain free, under the rules, to vary fee awards for reasons such as the complexity of the litigation, but not simply for the reason that the party is a public interest litigant. CHAIR McGUIRE announced that HB 145 would be held over.
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