Legislature(2005 - 2006)CAPITOL 106
04/27/2006 08:00 AM STATE AFFAIRS
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* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SB 86-STATE/MUNI LIABILITY FOR ATTORNEY FEES 9:49:17 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." 9:49:53 AM REPRESENTATIVE GRUENBERG directed attention to a memorandum dated April 26, 2006, from Dennis Bailey to Representative Les Gara, the first paragraph of which read as follows: You asked for an opinion whether a two-thirds vote is required for passage of CSSB 86(CRA). The short answer is yes. The bill modifies Civil Rule 82, which provides for court-awarded attorney fees. Article IV, sec. 15, Constitution of the State of Alaska requires a two-thirds vote by the members in each house to change a court rule. Accordingly, there should be a section and court rule change notice in the title of the modification of Civil Rule 82. 9:51:12 AM CRAIG TILLERY, Deputy Attorney General, Civil Division, Office of the Attorney General, Department of Law, at the behest of Representative Gruenberg, read the first paragraph out loud. 9:51:46 AM REPRESENTATIVE GRUENBERG asked, assuming that that legal opinion is correct, what the cost would be to the state of defending such a lawsuit, including "the potential exposure for the other side's attorney fees." 9:52:19 AM MR. TILLERY responded that he would have to go back and look at that. Notwithstanding that, he said based on the litigation in House Bill 145, "it would be some relatively small fraction of that." He said he couldn't offer an estimate on the spot. 9:52:45 AM REPRESENTATIVE GRUENBERG said he would like to have an answer to that in writing from Mr. Tillery. Furthermore, he said he would also like in writing what the state's cost to date are for a case relating to the Native village of Nunapitchuk. MR. TILLERY, in response to a question from Chair Seaton, said the Department of Law holds a view contrary to the one expressed in the aforementioned memorandum. He stated, "This was actually written in response to the superior court's decision. We have looked at this and feel fairly confident a two-thirds vote is not required in order for the legislature to assert sovereign immunity." 9:54:53 AM REPRESENTATIVE GRUENBERG asked Mr. Tillery, "Does this ... legislation also involve the award of costs under Rule 79, or are you conceding that they would still be entitled to their costs and, as I recall, be immunized from an award of attorney costs in case the state prevailed under [Rule] 79?" 9:55:28 AM MR. TILLERY replied, "This bill only deals with attorney fees." 9:57:00 AM RANDY RUARO, Assistant Attorney General & Legislative Liaison, Legislation & Regulations Section, Civil Division (Juneau), Department of Law, in response to a question from Chair Seaton, said he thinks that attorneys do have an obligation to zealously represent their clients. However, he said, they also have an obligation not to needless drive up the expense of litigation by "throwing in a kitchen sink worth of claims ... in the hopes that one will stick." He said it's a matter of balance. 9:57:42 AM CHAIR SEATON clarified that he wants confirmation that the department is not saying that "for someone to only win on two sections of the suit really meant that they had lost the suit," but that "some of the theories of action they might prevail on ... could be the substance of the suit, even if it's ... a minority of the number of theories." 9:58:19 AM MR. RUARO responded, "That's part of the problem of allowing the courts to handle the issue on a case-by-case basis; it's very hard to predict what you actually do have to do to be considered a prevailing public interest litigant." He said case law seems to be constantly evolving. He added, "I guess we would argue why it would be a better function under Article 2, Section 21 of the constitution for the legislature to ... decide it." 9:59:05 AM REPRESENTATIVE GRUENBERG prefaced his subsequent motion with the statement that he plans to vote against the bill. REPRESENTATIVE GRUENBERG moved to report CSSB 86(CRA)(efd fld) out of committee with individual recommendations and the accompanying fiscal notes. CHAIR SEATON [objected]. 9:59:47 AM A roll call vote was taken. Representative Lynn voted in favor of moving CSSB 86(CRA)(efd fld) out of committee. Representatives Gruenberg, Gatto, and Seaton voted against it. Therefore, CSSB 86(CRA)(efd fld) failed to move out of the House State Affairs Standing Committee by a vote of 1-3.