Legislature(2005 - 2006)CAPITOL 106

03/23/2006 08:00 AM STATE AFFAIRS


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= HB 383 MOTOR VEHICLE TRANSACTIONS TELECONFERENCED
Moved CSHB 383(STA) Out of Committee
+= HB 354 QUALIFICATIONS OF ADJUTANT GENERAL TELECONFERENCED
<Bill Hearing Canceled>
+= SB 86 STATE/MUNI LIABILITY FOR ATTORNEY FEES TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
SB  86-STATE/MUNI LIABILITY FOR ATTORNEY FEES                                                                                 
                                                                                                                                
9:48:36 AM                                                                                                                    
                                                                                                                                
CHAIR SEATON  announced that  the last order  of business  was CS                                                               
FOR SENATE  BILL NO.  86(CRA)(efd fld), "An  Act relating  to the                                                               
liability of  the state and  municipalities for attorney  fees in                                                               
certain civil actions and appeals."                                                                                             
                                                                                                                                
9:49:45 AM                                                                                                                    
                                                                                                                                
CRAIG TILLERY,  Deputy Attorney  General, Civil  Division, Office                                                               
of the Attorney  General, Department of Law, introduced  SB 86 on                                                               
behalf of the  Senate Rules Committee, sponsor by  request of the                                                               
governor.  He paraphrased his written testimony, as follows:                                                                    
                                                                                                                                
     Since  territorial days,  Alaska  has  had a  statutory                                                                    
     policy of requiring a losing  party in most civil cases                                                                    
     to  pay a  portion of  the prevailing  party's attorney                                                                    
     fees.   Soon after statehood, this  policy was embodied                                                                    
     in Civil Rule  82 by the Alaska  Supreme Court pursuant                                                                    
     to a legislative delegation.  ...                                                                                          
                                                                                                                                
     SB 86  addresses the use  of state and  municipal funds                                                                    
     to  subsidize  certain   types  of  litigation  through                                                                    
     awards of attorney fees to  prevailing parties that are                                                                    
     higher  than the  partial  fees that  are  the norm  in                                                                    
     Alaska.   The  legislation would  limit those  enhanced                                                                    
     awards to  instances in which the  legislature has made                                                                    
     the policy judgment to provide for them by statute.                                                                        
                                                                                                                                
     Enhanced  fee   awards  against  state   and  municipal                                                                    
     governments,  which  [are]   the  amount  above  normal                                                                    
     compensation,  represent a  significant  impact on  the                                                                    
     state  treasury  and, on  a  more  irregular basis,  on                                                                    
     municipal  funds.    Ordinarily, the  basis  for  these                                                                    
     enhanced awards has been  the judicially created public                                                                    
     interest litigant  policy, whereby  selected litigants,                                                                    
     suing to  advance ends deemed  by the court  to reflect                                                                    
     strong  public policies,  are granted  full  fees as  a                                                                    
     subsidy from the state treasury.                                                                                           
                                                                                                                                
     For the  state alone,  over last 10  or so  years, this                                                                    
     has  averaged  about  $600,000 per  year  above  normal                                                                    
     compensation.                                                                                                              
                                                                                                                                
     SB 86  would address this  by creating a  new provision                                                                    
     in a chapter of title 9 that is devoted to immunities.                                                                     
     It   relies   on   the   legislature's   constitutional                                                                    
     authorities to regulate suits against  the state and to                                                                    
     confer immunities  on the state and  municipalities, as                                                                    
     well  as on  the doctrine  of sovereign  immunity.   It                                                                    
     sets  limits   on  liability   that  are   similar  and                                                                    
     essentially identical  to those  limits found  in Civil                                                                    
     Rule 82 that  courts have found for  years to represent                                                                    
     fair partial compensation to a prevailing party.                                                                           
                                                                                                                                
     The limits  do not apply to  condemnation proceedings -                                                                    
     and that's because  payment of full attorney  fees in a                                                                    
     condemnation    proceeding    is    a    constitutional                                                                    
     requirement  - or  in instances  where the  legislature                                                                    
     has provided for the enhanced  fee awards, for example,                                                                    
     in a fair business practices-type  case.  There is also                                                                    
     an exception  allowing courts to enhance  attorney fees                                                                    
     as a sanction for misconduct by a party or by counsel.                                                                     
                                                                                                                                
     The immunity  created by  SB 86 is  intended to  do two                                                                    
     things:  One, it will  save the state significant money                                                                    
     each year,  but, most importantly  what it does,  is to                                                                    
     reassert  legislative control  over state  expenditures                                                                    
     to encourage  litigation on  public concerns,  based on                                                                    
     policy   priorities   that   are  determined   by   the                                                                    
     legislature.                                                                                                               
                                                                                                                                
MR. TILLERY said the proposed  legislation was introduced in 2005                                                               
and has come across to the House  from the Senate.  He noted that                                                               
there is also  a companion House bill that is  in the House State                                                               
Affairs Standing Committee.                                                                                                     
                                                                                                                                
9:53:09 AM                                                                                                                    
                                                                                                                                
MR. TILLERY  said since the  bill was introduced, a  couple cases                                                               
of relevance have occurred:  the  ACLU case and the Bachner case.                                                           
He said  what these  cases tend to  demonstrate is  "the creeping                                                               
nature   of  the   court's  award   of   attorney  fees   against                                                               
governments, essentially  headed towards what appears  to be full                                                               
liability any time  that the government would  lose."  Initially,                                                               
he  said,  public interest  litigant  doctrine  came about  as  a                                                               
shield to  prevent public interest  litigants from having  to pay                                                               
attorney fees under  Civil Rule 82.  Later, however,  the idea of                                                               
a  public interest  litigant doctrine  as a  sword -  where "they                                                               
were  entitled to  enhanced  fees"  - was  put  into the  court's                                                               
doctrine,  he  said.    Subsequently,  the  court  expanded  that                                                               
doctrine to say, "You not only  get fees for ... those items that                                                               
you win, but  if you win on  anything, you get full  fees ... for                                                               
... all  of your work on  the case."  Mr.  Tillery indicated that                                                               
was the [Dansereau v. Ulmer 955  P.2d 916] decision.  He said the                                                             
court  then  expanded that  decision  to  say, "Well,  you  don't                                                               
actually have to win  if you bring the case and  the state or the                                                               
government reacts in  such a way that suggests that  you were the                                                               
catalyst for that action, then you can get your full fee."                                                                      
                                                                                                                                
MR.  TILLERY said  one  of the  factors that  has  been the  most                                                               
effective in  making any public  litigant make sense is  the fact                                                               
that  "you  had   to  show  that  it  was   not  an  independent,                                                               
sufficient, economic incentive  to bring the case."   He said the                                                               
ACLU case dealt with benefits  for state employees, and the court                                                               
was  faced  with  the  request  that  "they  be  accorded  public                                                               
interest litigant status."  He continued:                                                                                       
                                                                                                                                
     There the  court stated that certainly  "the plaintiffs                                                                    
     below   contended  that   they  were   denied  valuable                                                                    
     benefits.   We have implicitly recognized  the benefits                                                                    
     to which  they're entitled are  economically valuable."                                                                    
     Nonetheless, the court went on  to find that it was not                                                                    
     a sufficient  economic incentive,  for the  reason that                                                                    
     the plaintiffs  might change  their domestic  status in                                                                    
     the  future, before  they actually  got  a benefit,  or                                                                    
     they might  cease to work  for the state.   In essence,                                                                    
     the court has  said, "If you can  imagine a contingency                                                                    
     by which you will not  get this benefit, then you don't                                                                    
     have  a sufficient  economic  incentive."   In  effect,                                                                    
     that means  that public interest litigant  status would                                                                    
     be accorded  in all prospective litigation  against the                                                                    
     state and municipalities.   That concern was heightened                                                                    
     for us  shortly after  that in procurement  case, where                                                                    
     the  losing  bidder  in  a  procurement  sued  and  was                                                                    
     afforded  public interest  litigant  status, again,  on                                                                    
     the assumption,  "Well, maybe [we'll] get  the bid next                                                                    
     time if ... it is tossed out."                                                                                             
                                                                                                                                
9:56:15 AM                                                                                                                    
                                                                                                                                
CHAIR SEATON  surmised, "The procurement case  was then basically                                                               
challenging  the  procedures  that  were used  to  go  through  a                                                               
bidding process but didn't actually  change the award of the bid.                                                               
Is that the rationale behind that, or not?"                                                                                     
                                                                                                                                
9:56:26 AM                                                                                                                    
                                                                                                                                
MR. TILLERY  answered, "It  challenged a  procurement ...  for an                                                               
office building, and  it tossed out the procurement  and said you                                                               
have to go back and rebid."                                                                                                     
                                                                                                                                
9:56:40 AM                                                                                                                    
                                                                                                                                
CHAIR  SEATON   concluded,  "So,  ...  the   court  found  faulty                                                               
procedures that  were followed  by the  state or  a municipality,                                                               
but it didn't actually award a bid to the prevailing party."                                                                    
                                                                                                                                
9:57:07 AM                                                                                                                    
                                                                                                                                
MR. TILLERY responded,  "No, they have to go back  and go through                                                               
it."  He  added, "And by the  way, ... that was  a superior court                                                               
case; the first one I mentioned was a supreme court decision."                                                                  
                                                                                                                                
9:57:24 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG asked if  the superior court opinion was                                                               
appealed.                                                                                                                       
                                                                                                                                
9:57:34 AM                                                                                                                    
                                                                                                                                
MR. TILLERY said  it will be appealed.  In  response to a follow-                                                               
up  question  from Representative  Gruenberg,  he  said he  would                                                               
provide the "slip  opinion number."  Mr.  Tillery summarized that                                                               
the bill  attempts to do two  things:  control the  fiscal impact                                                               
on the  state and municipalities,  and return to  the legislature                                                               
the  right to  set the  policies as  to when  litigation will  be                                                               
subsidized.   He said it is  the view of the  administration that                                                               
it is the legislature that should do that, not the court system.                                                                
                                                                                                                                
9:59:05 AM                                                                                                                    
                                                                                                                                
CHAIR  SEATON asked,  "Did we  put an  exemption exception  in so                                                               
that if  there was a constitutional  challenge - if the  basis of                                                               
the challenge  was based on  constitutional grounds -  then those                                                               
fees would be awarded?"                                                                                                         
                                                                                                                                
9:59:34 AM                                                                                                                    
                                                                                                                                
MR.  TILLERY   answered  that  four   or  five  years   ago,  the                                                               
legislature  introduced   House  Bill   145,  which   included  a                                                               
provision  that "a  party would  be entitled  to full  fees in  a                                                               
constitutional  case if  they  didn't  have independent  economic                                                               
incentive."   He said House  Bill 145  would be "an  exception to                                                               
this bill."   He noted that  [House Bill 145] was  struck down by                                                               
the [Alaska] Superior Court and  is currently being considered by                                                               
the [Alaska] Supreme Court.                                                                                                     
                                                                                                                                
10:00:13 AM                                                                                                                   
                                                                                                                                
CHAIR  SEATON   spoke  of   a  case   in  2002   that  challenged                                                               
reapportionment under constitutional grounds  and resulted in one                                                               
of the  two largest attorney fees  paid by the state  in a public                                                               
interest litigant  case.  He  mentioned an amount of  $2 million.                                                               
He  asked if  any  analysis has  been done  related  to how  many                                                               
public  interest litigant  fees  have been  granted  in the  past                                                               
based  on constitutional  grounds and  whether there  would be  a                                                               
reduction in attorney  fees paid by the state  in public interest                                                               
litigant cases should the bill pass.                                                                                            
                                                                                                                                
10:01:37 AM                                                                                                                   
                                                                                                                                
MR. TILLERY  said he  has not.   He said to  do so  would involve                                                               
going back and  reading the decisions, which  would be difficult.                                                               
He explained, "Because  the other thing that the bill  does is it                                                               
deals with  the Dansereau  problem by  providing that  you'd only                                                               
get  them on  the  actual  claims that  you  raise  that were  on                                                               
constitutional grounds.   ...  That's what  [House Bill]  145 did                                                               
also."  He offered an example as follows:                                                                                       
                                                                                                                                
     If you were to have  ... an apportionment, or whatever,                                                                    
     and   you   raised  four   grounds   -   two  of   them                                                                    
     constitutional [and]  two of  them statutory -  and you                                                                    
     only won  on the constitutional ground,  then you would                                                                    
     only get your fees for that portion.                                                                                       
                                                                                                                                
10:02:23 AM                                                                                                                   
                                                                                                                                
CHAIR  SEATON suggested  that the  year 2002  would readily  show                                                               
that  "almost all  of it  was  based on  the challenge  by a  ...                                                               
political party  to the redistricting  based on  a constitutional                                                               
challenge."  He asked if that is correct.                                                                                       
                                                                                                                                
10:02:47 AM                                                                                                                   
                                                                                                                                
MR.  TILLERY replied  that he  is  not familiar  with that  case;                                                               
however,  he  offered his  believe  that  redistricting has  some                                                               
statutory elements to it.                                                                                                       
                                                                                                                                
10:02:57 AM                                                                                                                   
                                                                                                                                
RANDY RUARO,  Assistant Attorney  General &  Legislative Liaison,                                                               
Legislation  &  Regulations  Section,  Civil  Division  (Juneau),                                                               
Department of Law, confirmed, "There are statutes on it."                                                                       
                                                                                                                                
10:03:19 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE GRUENBERG directed  attention to page [6]  of 8 on                                                               
the handout  entitled, "Legislative Research Report  February 17,                                                               
2006, Report  Number 06.097" [included in  the committee packet].                                                               
He  pointed out  the O'Callaghan  v. Coghill  case listed  on the                                                             
page  and revealed  that that  was his  case, which  he won.   He                                                               
stated, "I  do have a conflict  of interest, having from  time to                                                               
time taken  these cases, and I  guess I should ask  to be excused                                                               
from participating ...."                                                                                                        
                                                                                                                                
10:03:48 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE LYNN stated his objection.                                                                                       
                                                                                                                                
10:03:58 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE GRUENBERG,  in response  to a question  from Chair                                                               
Seaton, confirmed  that the  O'Callaghan v.  Coghill case  was on                                                             
constitutional  grounds.   He added  that  subsequently the  U.S.                                                               
Supreme Court reversed that decision.                                                                                           
                                                                                                                                
REPRESENTATIVE  GRUENBERG  said  if a  public  interest  litigant                                                               
loses,  attorney fees  cannot be  awarded against  that litigant.                                                               
He offered  his understanding that  that is the current  state of                                                               
the law.                                                                                                                        
                                                                                                                                
MR. TILLERY  responded that actually the  legislature essentially                                                               
abolished the public interest doctrine,  "as the court had done,"                                                               
through  House Bill  145.   In response  to a  follow-up question                                                               
from Representative  Gruenberg, he  confirmed that  that doctrine                                                               
was  ruled unconstitutional  by the  superior court,  but is  the                                                               
current state of law until the supreme court rules on it.                                                                       
                                                                                                                                
10:06:29 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  GRUENBERG  said,  "If   you  win,  you  get  full                                                               
attorney's fees  under the current state  of the law."   He added                                                               
that that  is both at  the trial court level  and on appeal.   He                                                               
offered further details.                                                                                                        
                                                                                                                                
10:07:00 AM                                                                                                                   
                                                                                                                                
MR. TILLERY confirmed  that Representative Gruenberg's statements                                                               
were correct.                                                                                                                   
                                                                                                                                
10:07:08 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  GRUENBERG  said  cases  where there  is  a  money                                                               
judgment are not  public interest cases, but are just  run of the                                                               
mill civil lawsuits.                                                                                                            
                                                                                                                                
MR. TILLERY said that's correct.                                                                                                
                                                                                                                                
REPRESENTATIVE GRUENBERG  proffered that normally under  Rule 82,                                                               
if it is  a nonmoney judgment, the attorney gets  a percentage of                                                               
his/her actual attorney fees.   He offered his understanding that                                                               
the amount is 20 percent if the  case does not go to trial and 30                                                               
percent if the case goes to trial and is won.                                                                                   
                                                                                                                                
REPRESENTATIVE GRUENBERG  said on  appeal the situation  is quite                                                               
different.  He continued:                                                                                                       
                                                                                                                                
     The supreme court, on an  appeal, is under an appellate                                                                    
     rule, not Rule  82, and the appellate  rule gives total                                                                    
     discretion to the  supreme court.  ...  They award very                                                                    
     few attorney  fees to anybody  in a  nonpublic interest                                                                    
     case;  ... it's  generally somewhere  between $500  and                                                                    
     $1,000 ....   So, it's  almost a token, because  it's a                                                                    
     lot  more  expenses  to  take  an  appeal  ....    They                                                                    
     determine whether  you win an  appeal as  an appellate.                                                                    
     Generally,  if  you prevail  on  a  single issue,  they                                                                    
     would hold you  as a prevailing party.   They might not                                                                    
     award you the full $1,000 -  you might only get half of                                                                    
     it, or something like that.                                                                                                
                                                                                                                                
REPRESENTATIVE GRUENBERG directed attention  to page 2, lines 22-                                                               
24, which read as follows:                                                                                                      
                                                                                                                                
                    (3) in an appeal in which the                                                                               
     prevailing party does not recover  a money judgment, 20                                                                    
     percent  of the  prevailing  party's reasonable  actual                                                                    
     attorney  fees   that  were  necessarily   incurred  in                                                                    
     litigating issues upon which the party prevailed.                                                                          
                                                                                                                                
REPRESENTATIVE GRUENBERG explained:                                                                                             
                                                                                                                                
     In an appeal  now, if you're a prevailing  party - even                                                                    
     against the state  - in an injunction  or a declaratory                                                                    
     judgment  action, you'd  only get  something less  than                                                                    
     $1,000, which is  far less than 20 percent.   So, this,                                                                    
     I  believe,   Mr.  Tillery,  ...   might  significantly                                                                    
     increase the amount  a prevailing party would  get in a                                                                    
     run-of-the-mill  declaratory  judgment  appeal  against                                                                    
     the state.  ...                                                                                                            
                                                                                                                                
     A typical appeal might cost  $8-10,000 in attorney fees                                                                    
     [for] actual  time.  ...  Let's say there's a  mine and                                                                    
     they've closed the road, and  you want an injunction to                                                                    
     require  the  state   to  change  their  administrative                                                                    
     decision so the road to the  mine goes open.  [You] pay                                                                    
     $10,000 [and]  you win  on the appeal.   Now  you would                                                                    
     only  get $1,000  against the  state, but  you've spent                                                                    
     ten grand in  your ... successful appeal.   Under this,                                                                    
     you double the amount you'd  get against the state, ...                                                                    
     which I would support, by  the way.  You might actually                                                                    
     find  prevailing  appellate  in ...  nonmoney  judgment                                                                    
     cases getting  a higher amount  against the  state than                                                                    
     you do under the current appellate rule.                                                                                   
                                                                                                                                
10:11:17 AM                                                                                                                   
                                                                                                                                
MR.  TILLERY responded  to Representative  Gruenberg's statements                                                               
by saying, "This wouldn't affect that;  this is only ... a cap on                                                               
what the state will pay."  He  added that in cases where it would                                                               
have given a thousand dollars,  the supreme court presumably will                                                               
continue to give  a thousand dollars.  He said,  "What this would                                                               
deal  with was  the situation  where they  ... might  provide for                                                               
full fees."                                                                                                                     
                                                                                                                                
10:11:45 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE GRUENBERG asked  Mr. Tillery if the  intent of the                                                               
bill is not to change court rules.                                                                                              
                                                                                                                                
10:12:10 AM                                                                                                                   
                                                                                                                                
MR. TILLERY responded:                                                                                                          
                                                                                                                                
     [What]  it basically  finds is  a  matter of  sovereign                                                                    
     immunity - that  the state will not be  liable for more                                                                    
     than  this amount.   Then  the amounts  that it  has in                                                                    
     here, as I'm sure you've noted, mirror Civil Rule 82.                                                                      
                                                                                                                                
REPRESENTATIVE  GRUENBERG said,  "Except  it  doesn't mirror  the                                                               
appellate rule in the case I'm talking about."                                                                                  
                                                                                                                                
MR. TILLERY mentioned Appellate Rule  508.  He said, "Courts have                                                               
been  ...  a little  bit  all  over  the  board, but  the  normal                                                               
practice is to, by analogy, apply  Civil Rule 82 standards ... to                                                               
administrative appeals."   He added, "And 508 applies  to both of                                                               
those."                                                                                                                         
                                                                                                                                
10:13:07 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  GRUENBERG  asked,  "So,  you're  saying  that  in                                                               
administrative appeals  they apply Rule  82 both at  the superior                                                               
court and the supreme [court]?"                                                                                                 
                                                                                                                                
10:13:20 AM                                                                                                                   
                                                                                                                                
MR.  TILLERY answered  not on  the supreme  court; it  would more                                                               
typically give the $1,000, except  in the case of public interest                                                               
litigants.    He explained,  "This  would  simply  set a  cap  on                                                               
liability; it wouldn't change the court's normal practice."                                                                     
                                                                                                                                
10:13:40 AM                                                                                                                   
                                                                                                                                
CHAIR  SEATON asked  Representative  Gruenberg to  meet with  the                                                               
Office of the  Attorney General on "these points  that are really                                                               
somewhat off the bill."  He  asked Mr. Tillery if public interest                                                               
litigants have to  win on the main  issue, or if they  can win on                                                               
some small subsidiary issue and  receive full attorney fees as if                                                               
having won the main issue.  He mentioned Hillman v. Nationwide.                                                               
                                                                                                                                
10:14:59 AM                                                                                                                   
                                                                                                                                
MR. TILLERY  replied that under  Dansereau "you don't have  to be                                                             
the primary prevailing  party."  He said in that  case, the court                                                               
awarded full fees,  even though the party won on  only one of its                                                               
three claims.   He offered a couple other examples  in:  State v.                                                             
Alaska  Civil Liberties  Union -  a 1999  case, and  another 1999                                                             
case involving the Cook Inlet areawide lease sale.                                                                              
                                                                                                                                
10:17:49 AM                                                                                                                   
                                                                                                                                
SCOTT  A. BRANDT-ERICHSEN,  Attorney  at  Law, Ketchikan  Gateway                                                               
Borough, said  he is testifying  on behalf of himself,  using his                                                               
18-year  experience   in  litigation  and  advice   giving.    He                                                               
indicated that  although it would  make his job  more frustrating                                                               
if  SB 86  "did  away with  the shield  presented  by the  public                                                               
interest  litigant  status,"  he  thinks  the  way  the  bill  is                                                               
structured  in "just  doing  away  with the  sword  aspect" is  a                                                               
reasonable  compromise.    He  told the  committee  that  in  his                                                               
experience representing  municipalities he  has had six  to seven                                                               
cases over the years that  have involved public interest litigant                                                               
issues.                                                                                                                         
                                                                                                                                
MR.  BRANDT-ERICHSEN  described  one  case  involving  a  two-way                                                               
lawsuit.   He said, "We  were sitting  in the middle  with public                                                               
interest litigants on  both sides, assured that we  would lose to                                                               
at least one of  them and have to pay full  attorney fees with no                                                               
prospect of getting our fees  covered."  He stated, "While that's                                                               
an  unusual case,  the  situation of  facing  litigation over  an                                                               
issue which  may be  of minor  importance to  the entity,  but of                                                               
significant  concern  in  terms  of the  financial  risk  to  the                                                               
community  involved, ...is  a concern  that I  would like  to see                                                               
addressed."   Mr.  Brandt-Erichsen  opined that  SB 86  addresses                                                               
this concern.  He continued:                                                                                                    
                                                                                                                                
     The public interest attorney [fee]  is not a court rule                                                                    
     as it  is now, and  so it doesn't require  an amendment                                                                    
     to a  court rule to  achieve the things that  this bill                                                                    
     is  seeking to  achieve.   The changes  in this  bill I                                                                    
     don't  believe would  create a  sufficient disincentive                                                                    
     to  public   interest  litigants  to  keep   them  from                                                                    
     challenging  governmental  actions which  they  believe                                                                    
     were taken improperly.  I  think we'll see a comparable                                                                    
     number  of challenges  in the  future if  this bill  is                                                                    
     adopted,  but  the  stakes for  those  challenges,  for                                                                    
     municipalities  and  for  the  state, will  not  be  as                                                                    
     lopsided.                                                                                                                  
                                                                                                                                
10:23:03 AM                                                                                                                   
                                                                                                                                
MR.  BRANDT-ERICHSEN,  in  response  to  a  question  from  Chair                                                               
Seaton, stated:                                                                                                                 
                                                                                                                                
     There  are occasionally  issues where  ... you  realize                                                                    
     there's  a  significant  risk of  litigation  over  the                                                                    
     validity  of the  provision because  there  is a  party                                                                    
     that   is   either  philosophically   or   economically                                                                    
     motivated  to  challenge  it.   ...  There's  always  a                                                                    
     certain level of  care, but the level of  care that you                                                                    
     take  to  try  to  ensure that  you  have  covered  all                                                                    
     possibilities   to  avoid   successful  litigation   by                                                                    
     someone  challenging the  legislation or  regulation is                                                                    
     probably higher in those instances.                                                                                        
                                                                                                                                
     These  public interest  litigant  cases  however -  ...                                                                    
     only about half of the ones  that I've had have come up                                                                    
     in the  context of  political issues,  regulatory type,                                                                    
     or  law  changes.    Half  of  the  ones  that  I  have                                                                    
     encountered   have   arisen   out   of   administrative                                                                    
     discharge  of   statutory  duties,  for   example,  the                                                                    
     municipal  clerk being  charged with  processing recall                                                                    
     petitions.   There are specific  duties that  the clerk                                                                    
     is charged  with carrying out, and  someone challenging                                                                    
     how  those   duties  were  carried  out   isn't  really                                                                    
     challenging legislation so much  as that the action was                                                                    
     not taken consistent with what the rules are.                                                                              
                                                                                                                                
10:24:59 AM                                                                                                                   
                                                                                                                                
CHAIR SEATON asked if there  has been any heightened awareness or                                                               
execution  of those  duties knowing  that there  could be  public                                                               
interest  litigant  challenges if  the  duties  are not  properly                                                               
executed.                                                                                                                       
                                                                                                                                
10:25:46 AM                                                                                                                   
                                                                                                                                
MR. BRANDT-ERICHSEN  answered yes.   He relayed  that in  most of                                                               
the  instances  where  public interest  litigation  develops,  it                                                               
tends  to be  in areas  where there  is certain  controversy, for                                                               
example,  timber  sales,  recall issues,  election  contests,  or                                                               
certain  legislation.   He said  the people  who are  not pleased                                                               
with the  way a particular policy  issue was handled or  with the                                                               
decision that  was made by  an administrative official  will look                                                               
for anything they can find to  try to get that decision reversed.                                                               
He  concluded, "And  so, regardless  of how  careful you  are, it                                                               
will  not prevent  them from  going to  court to  try and  get it                                                               
overturned anyway."                                                                                                             
                                                                                                                                
10:27:15 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  GRUENBERG recalled  that Mr.  Brandt-Erichsen had                                                               
testified  that  SB  86  is  designed  to  change  certain  court                                                               
interpretations,  thus,  the  court  rule does  not  need  to  be                                                               
amended.  He  said, "We find that quite often  what we're dealing                                                               
with   is    legislation   designed   to   modify    or   reverse                                                               
interpretations, say, of  statutes.  And the  way the legislature                                                               
works, if  you're doing that,  you amend  the statute.   And it's                                                               
the same  with a  court rule;  I don't see  any difference."   He                                                               
asked   Mr.   Brandt-Erichsen  what   basis   he   had  for   the                                                               
aforementioned statement.                                                                                                       
                                                                                                                                
10:28:16 AM                                                                                                                   
                                                                                                                                
MR. BRANDT-ERICHSEN clarified that he  had meant that SB 86 would                                                               
change a court interpretation;  however, that interpretation "has                                                               
not  been reduced  to a  rule in  one of  the court  rules."   He                                                               
explained, "The concept of public  interest litigants and the way                                                               
fees  are  awarded  in  public   interest  litigant  cases  is  a                                                               
construction  of court  decisions, rather  than a  rule, such  as                                                               
Rule  82.    And  so,   while  this  legislation  would  have  an                                                               
interaction with  prior court decisions,  it does not  change the                                                               
court rules themselves."                                                                                                        
                                                                                                                                
10:29:07 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE GRUENBERG  said he  thinks that  is an  issue that                                                               
should be examined, because normally  the attorney fee provisions                                                               
are an interpretation of the court rules.                                                                                       
                                                                                                                                
10:30:43 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  GRUENBERG  said he  would  like  to know  if  Mr.                                                               
Tillery and  Mr. Brandt-Erichsen have opinions  regarding whether                                                               
a  two-thirds vote  or only  a  majority vote  under the  court's                                                               
interpretive power would  be necessary should the  court rules be                                                               
modified.                                                                                                                       
                                                                                                                                
10:31:05 AM                                                                                                                   
                                                                                                                                
[SB 86 was heard and held.]                                                                                                     

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