Legislature(2003 - 2004)
04/23/2003 01:07 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 97-ATTY FEES: PUBLIC INTEREST LITIGANTS
MR. CHRIS KENNEDY, assistant attorney general in the
environmental section of the Department of Law (DOL), presented
SB 97 as follows.
The public interest litigant doctrine was created by
the Alaska Supreme Court in the 1970s. The court has
defined a public interest litigant to be a person who
brings litigation that seeks to effectuate strong
public policies, would benefit numerous people, could
only be brought by a private party, and that lacks
sufficient economic incentive for a private party to
sue if it weren't for that broader public importance.
Litigants who qualify as public interest litigants
benefit from an uneven playing field with regard to
attorney fees. They obtain reimbursement for their
full attorney fees if they win. They may even obtain
fee reimbursement if they do not actually prevail in
court but they're determined to have been a catalyst
for changed behavior by the other party. If they lose,
on the other hand, the winning party can recover no
fees at all from them. The public interest litigant
doctrine is not part of Court Rule 82. It's a common
law doctrine that operates outside of the court rule
framework.
When it is applied to the state, the public interest
litigant doctrine represents a substantial public
subsidy for suits against the state. In the natural
resource area, the state has paid out about three-
quarters of a million dollars to public interest
litigants in the last 10 years. In giving you that
statistic, I'm talking about ordinary natural resource
cases. I'm excluding the mental health land case,
which is kind of a special and, hopefully, a one-time
event.
The payees for these public interest litigant fees
have included Greenpeace, Trustees for Alaska,
Southeast Alaska Conservation Council and a number of
other entities. That payout of funds to these parties
understates the degree of the subsidy. The flip side
of the public interest litigant doctrine is that these
parties did not have to worry about paying the state's
fees if the state prevailed. This means that the
calculus going into litigation is very different for
them. People seeking to overturn or obstruct actions
of the state have an affirmative incentive to take a
chance on doubtful claims because they may win and
earn large rewards in the form of full fees without
having the counterbalancing risk of even partial fees
being awarded against them. The public interest
litigant doctrine strongly encourages litigation of
the kind that is quite expensive to the state.
SB 97 restores balance to these litigation incentives
in the natural resource area, concentrating on cases
that are arrived out of decisions that involve
considerable public attention and public review. The
parties seeking to challenge these decisions would
have to engage in the same balancing of limited
financial rewards for victory and limited financial
penalties for being wrong that everyone else does.
Hence, most public interest organizations are well
financed. They can engage effectively in the calculus
without any disadvantage. They do not require a
subsidy to pursue their agenda.
The amendment you see before you adjusts SB 97 in two
important ways. First of all, it clarifies that this
leveling of the playing field applies to
administrative appeals and not just to ordinary civil
actions. The previous version of the bill simply said
that civil actions would be covered and, apparently,
at least some of the case law differentiates between a
civil action and administrative appeal.
Secondly, this change would delete the court amendment
part of the rule. The bill had attempted to go beyond
limiting the public interest litigant doctrine and to
address awards of enhanced fees under Civil Rule 82-3.
It was decided, based on comments received since the
bill was introduced, that the bill should address only
public interest litigant doctrine and not to seek to
tie the court's hand under Rule 82 at this time. So,
it becomes really a one-subject bill and makes no
amendment whatsoever to the court rule.
1:15 p.m.
SENATOR FRENCH asked Mr. Kennedy if he said the current policy
requires a substantial public subsidy, which in essence provides
an affirmative incentive for public interest litigants to push
doubtful claims.
MR. KENNEDY said that is correct.
SENATOR FRENCH said when he reviewed the record of public
interest litigation, he found the natural resource cases cost
less than 10 percent of the total public interest attorneys'
fees paid by the state in the last 10 years.
MR. KENNEDY said he would have to review the chart, but Senator
French is correct in that the great majority of public interest
fees over the last 10 years have been awarded in non-natural
resource cases. He thought the ratio of all cases to natural
resources cases was 10:1.
SENATOR FRENCH said the amount paid to plaintiffs for natural
resource litigation over 10 years is about $718,000, which
equals about $71,000 per year. He said that is not an
astronomical amount to pay one lawyer each year to challenge the
government on its application of natural resource law. He asked
if that amount is close to the amount Mr. Kennedy is paid.
MR. KENNEDY said that is correct.
SENATOR FRENCH said he is also curious about the idea that there
is no financial disincentive for public interest litigants to
bring cases. He surmised if that were true, one would expect to
see outrageous claims filed in court and continually dismissed.
MR. KENNEDY said he does not believe it would follow that they
would pursue frivolous claims because there is a financial
disincentive for pursuing baseless claims. He said it is true
that some claims filed against the state by public interest
litigants are very speculative and are encouraged by their
insulation from having to pay state fees and the fact that they
might receive a financial payout if they prevail.
SENATOR FRENCH asked for an example of a frivolous claim brought
in the natural resources arena.
MR. KENNEDY said he differentiated frivolous cases from
speculative cases and that he is not suggesting these claims are
necessarily frivolous. He said an example would be the Prince
William Sound contingency plan litigation, which has been fought
through several lawsuits in recent years. In the most recent
case, the public interest litigants raised 84 issues in superior
court and prevailed on none. On appeal, the litigants filed 98
appellate points and did not prevail on those. The only argument
left is about attorney fees. He said it is the presence of the
public interest litigant doctrine that enables people to bring a
case like that and face no financial consequences for doing so.
CHAIR SEEKINS announced that Senator Ellis joined the committee.
He then asked Mr. Kennedy if the Prince William Sound case was
brought to delay or harass or whether it is a legitimate concern
that needs to be addressed to protect the public.
MR. KENNEDY said he would not go as far as saying it was brought
to delay or harass. He thought the environmental section of DOL
felt it contained speculative and far-fetched claims on matters
that were extensively explored through the public comment
process. From a public policy standpoint, DOL does not believe
it was not useful to have the court hear those claims again.
CHAIR SEEKINS asked whether SB 97, if enacted, would act as a
disincentive to bring speculative and far-fetched cases to the
court.
MR. KENNEDY replied he believes SB 97 would act as a
disincentive. He thought claims would be more focused because
litigants would be forced to cull their claims to those with
more merit.
SENATOR OGAN referred to Senator French's comment that in the
last 10 years $718,000 has been paid for attorneys' fees in
public interest litigant cases. A case involving drilling in
Cook Inlet tied that project up for a substantial time period
and cost the company millions of dollars. He said it seems to
him that SB 97 is an attempt to be consistent with the
Governor's policy of streamlining development and to make Alaska
an attractive place to invest. He asked Mr. Kennedy if he
concurs.
MR. KENNEDY said he very much concurs. He would hate to see
everyone get "hung up" on the $718,000 because the real
financial effect of these cases is in the cost to the state to
respond and in the effect they have on private parties whose
projects may be stalled for many years, resulting in costly
delays.
SENATOR OGAN indicated that he works for a resource development
company and is very aware of the costs associated with planning,
permitting and mobilizing equipment and people and the costs of
putting everything on hold because of a public interest litigant
lawsuit. These cases cost millions of dollars to the private
sector and to the state treasury.
CHAIR SEEKINS asked Mr. Kennedy how much the state could have
attempted to recover from cases in which it prevailed if SB 97
was enacted 10 years ago.
MR. KENNEDY said he does not believe that figure has been
determined and that it would be a tall order to calculate that
figure. He estimated that one attorney in his office spent two
years working full time on the Prince William Sound case. In
addition, the oil shippers had to pay private attorneys
substantial amounts as well. He said he does not want to single
out that case, but it is one he is very familiar with.
SENATOR OGAN said he wasn't only referring to the cost of
attorney's fees for the private sector; he was also referring to
the cost of equipment depreciation while it sits idle. He noted
it costs twice as much to do business in Alaska as it does in
the Lower 48 because of labor and shipping. Therefore, to ship
equipment to Alaska and have it sit idle while the management
must stay to keep the "engine running" until the litigation is
cleared up is very costly.
CHAIR SEEKINS announced the committee would take public
testimony.
MR. BOB BRIGGS, staff attorney for the Disability Law Center of
Alaska, told members that the Disability Law Center is required
by federal law to be authorized as the state's system to
represent Alaskans with disabilities in all forums, including
the courts. One of the Center's tools is to seek litigation to
redress a grievance. The Center disagrees with the concept of
eliminating the public interest litigant exception.
MR. BRIGGS said he comes to this debate as a former U.S.
assistant attorney representing the federal government in
environmental and other kinds of lawsuits. In addition, he
worked as an assistant attorney general for the State of Alaska.
Throughout his career, he has worked to represent public
interests. He said what is in the public's interest is always
subject to debate. In this debate, it is important to keep in
mind the aspect of the public interest litigant exception, which
is to preserve the right of access to the courts for those who
may not have the financial incentive and ability to get access
otherwise.
MR. BRIGGS asked members to look at two Alaska court rules: Rule
82 of the Alaska Rules of Civil Procedure, and Rule 508 of the
Alaska Rules of Appellate Procedure. The concept of the public
interest litigant section is given context in these two rules.
Civil Rule 82 lists the various factors that a court is to
consider when deciding whether to award attorney's fees to a
prevailing party and to calculate the amount of that fee. One of
those factors is the extent to which a given fee award may be so
onerous to the non-prevailing party that it would deter
similarly situated litigants from voluntary use of the courts.
He said in essence, that rule contains the basic expression of
the right of access to the courts that the rule attempts to
protect. The public interest litigant doctrine is merely an
explanation of that basic concept. Other factors include
adjustment of the award based on vexatious or bad-faith conduct,
the relationship of the amount of work performed and the
significance of the matters at stake.
MR. BRIGGS suggested that a court that presided over a case in
which all 84 claims were lost should take that into
consideration when calculating the attorney's fee assessed
against the losing party. That might be grounds for finding the
litigation to be vexatious or filed in bad-faith. That would
cause the court to not recognize the status of the public
interest litigant as such. He pointed out the public interest
litigant exception is flexible and is designed to allow courts
to look at the merits of the case and the way the parties
conducted themselves.
MR. BRIGGS explained that Appellate Rule 508 does not have the
same laundry list of factors, but it does expressly state that
if a court determines that an appeal or cross appeal is
frivolous or that it has been brought for the purpose of delay,
it may award actual attorney's fees. In any case, a court can
decide to award full fees against the litigant. He told members
he sat on the Civil Rule 82 committee in 1983 when the rule was
revised. He was partially responsible for the explanatory
notation on pages 211 and 212. He was partially motivated to
serve by the fact that he had served as a government attorney
and recognized the power of government against the individual,
and the importance of providing individuals with the power to
question government action through the courts.
MR. BRIGGS said SB 97 does not appear to affect the rights of
Alaskans with disabilities to access the courts. However, its
vagueness raises the question of whether it will have that
effect. The proposed amendment seems to narrow the focus even
more so that the bill would only focus on the decisions of three
state agencies. That makes the bill less threatening to the
right of access of Alaskans with disabilities and to other
Alaskans with public interest claims.
He urged members to consider the words of Justice Kennedy of the
U.S. Supreme Court when deciding whether this legislation is
wise in its effect on the rights of some people to gain access
to the courts. He quoted Justice Kennedy from the case of Legal
Services Corporation vs. Velasquez:
Interpretation of the law and the Constitution is the
primary mission of the judiciary when it acts within
the sphere of its authority to resolve a case or
controversy. An informed independent judiciary
presumes an informed, independent bar. By seeking to
prohibit the analysis of certain legal issues, and to
truncate presentation to the courts, the enactment
under review prohibits speech and expression upon
which courts must depend for the proper exercise of
the judicial power. Congress cannot wrest the law from
the Constitution, which is its source. Those then who
controvert the principle that the Constitution is to
be considered in court as a paramount law are reduced
to the necessity of maintaining that courts must close
their eyes to the Constitution and see only the law.
MR. BRIGGS said in that case, the court was looking at
restrictions made by Congress on the legal claims that Legal
Services Corporation lawyers could make in representing their
clients. SB 97 does not restrict the kinds of claims that could
be brought but it creates an obstacle for certain kinds of
plaintiffs to bring actions in court. He said he is aware of the
need to diversify Alaska's economy, including the need for more
resource development. However, he urged members to think twice
before restricting access to the courts for one group of
Alaskans because that action could create a precedent for other
groups.
CHAIR SEEKINS said this legislation limits the kind of actions
that can be brought; it does not limit any group of Alaskans.
MR. BRIGGS said he misspoke and the Chair is correct. His point
is that if access to the court is restricted for certain kinds
of actions that will open the door to restricting access to the
court as a forum available to others.
CHAIR SEEKINS said that is the intent of the bill. He asked how
many legislators served on the committee that reviewed Civil
Rule 82 in 1983.
MR. BRIGGS said he does not believe any legislators served. He
recalled that an Alaska Supreme Court justice and attorneys who
had primarily represented tort litigants served. At the time,
the rule was up for debate because of a concern that there was
too much tort litigation.
CHAIR SEEKINS asked Mr. Briggs if he finds it odd that the
Legislature might want to discuss what the officers of the court
decided to do, in terms of what kind of cases can be brought.
MR. BRIGGS said it is absolutely within the Legislature's
prerogative to amend any court rule.
SENATOR THERRIAULT referred to Rule 508 (court determination of
a frivolous appeal or cross-appeal) and asked how often that
finding is made.
MR. BRIGGS did not know but said when cases are decided, whether
by settlement or judgment, the litigants must file a report so
it might be possible to determine the number cases from the
database of reports.
SENATOR THERRIAULT said he asked because he believes judges are
very reluctant to declare a case to be frivolous. He said he
doesn't believe that language prevents the potential for abuse.
1:42 p.m.
SENATOR FRENCH thanked Mr. Briggs for his analysis in light of
his background as an attorney for the federal and state
governments. He asked if Mr. Briggs would be surprised to learn
that in the last 10 years, a total of 15 natural resource cases
were found to be public interest litigant cases. He also asked
if Mr. Briggs is surprised to learn the number of those cases
have decreased over time. He questioned how that decrease
supports the idea that this rule spurs on weak claims.
MR. BRIGGS said he is not well schooled on the amount of money
DOL has sought in payment of claims and judgments. The only data
he has heard is the data referred to by Senator French. The
committee does not have data from private litigants on their
costs, which is unfortunate. However, from the data that is
available, it is clear that the largest beneficiaries of public
interest litigation have been attorneys who have represented
litigants in redistricting cases. He suggested that is exactly
what the public interest litigant exception is supposed to do,
which is to encourage access to the courts on important subjects
such as the validity of elections.
CHAIR SEEKINS asked Senator French to share his data with the
rest of the committee.
SENATOR FRENCH agreed to do so.
SENATOR THERRIAULT said he agrees with Mr. Briggs about the
redistricting litigation because those cases are based on a
constitutional interpretation of socio-economic compactness,
etcetera. In discussions he has had with other members of the
Senate, he has sensed a certain amount of agreement on the issue
of maintaining access to the court system for the disabled
community. His read on the current bill is that the committee is
trying to prevent any impact to those kinds of cases.
MR. BRIGGS said the Disability Law Center recognizes the
committee's effort to narrow the focus of the bill [to natural
resource cases] and appreciates it. He maintained that it is
difficult to create a better environment for resource
development while preserving access to the courts for others who
are not focused on that particular debate. The Center takes no
position on the bill but he cautioned members that, like many
subjects that involve constitutional issues, raising the
prospect of defining one special class whose rights are not
subject to such protection creates a precedent. That is his
biggest concern.
MR. BRIGGS said he has advised families that if they pursue a
case against the state and the state prevails, the family will
face a large risk of liability. Some families decide they cannot
afford to take that risk. He said one way the Legislature could
accomplish its goal is to at least maintain the freedom of risk.
Class action litigation, in his view, occurs when people have
lost the political battle and turn to the court to gain some
support for their position. He said he personally believes the
full fees doctrine, when one wins, does encourage litigation
because litigation is very expensive for private lawyers who
have to pay the rent. On the other hand, non-profit groups that
are funded to pursue a particular interest will probably still
go to court but they won't be so chilled by facing the prospect
of [liability].
SENATOR THERRIAULT asked Mr. Briggs if he believes there is
justification to limiting the upside but removing the downside
risk.
MR. BRIGGS said the downside risk is what chills the right of
access of regular people to the courts more than anything else.
MR. RICH HEIG, general manager of the Greens Creek Mining
Company and president of the Council of Alaska Producers, said
he would be speaking on behalf of the Council of Alaska
Producers. He said he hopes SB 97 can be passed in some form
during this session. He recognizes that public interest
litigation can be necessary at times, but the resources industry
is heavily burdened with extensive state, federal and, in some
cases, local permitting requirements. The permitting process can
take years to complete and includes public hearing
opportunities, public comment opportunities, and administrative
review by the commissioners of the agencies. The process of
administrative appeals following the permit process is very time
consuming and costly to both the agencies and the industry. He
agreed with Senator Ogan that the big issue for industry is not
so much the cost of reimbursement of attorney's fees for public
interest litigants, but the cost and time associated with
getting through the process. Once a company gets to the end of
the permitting process, it cannot be assured the process is
complete because a decision can be appealed to the court system.
If SB 97 has the potential to reduce the cost of litigation, and
the time and cost it takes to begin development, it can be very
beneficial to industry without any increased risk to the
environment.
SENATOR OGAN asked Mr. Heig if he would like to see a more
linear process of jumping through the hoops so that a company
knows when it is done with the permit process.
MR. HEIG said Greens Creek just spent two years to get to "hoop
A" in the environmental impact statement (EIS) process. This
week it will go out for its draft EIS. From here on out, Greens
Creek will work within specified time periods for the remainder
of the federal permitting process. The state is working
concurrently with that time schedule on solid waste permit and
other issues. At the end of this process, in January of next
year, Greens Creek expects to go through the appeals process. He
said it is important for Greens Creek to know it can reach an
end goal and bring an operation into development.
SENATOR OGAN asked how much money Greens Creek has spent so far
to obtain permits and to do core samples.
TAPE 03-26, SIDE B
MR. HEIG explained the Greens Creek permit application is for a
30 acre expansion to its existing facility. He estimated the
total cost over the last couple of years to be between $1
million and $1.5 million.
SENATOR OGAN asked Mr. Heig to estimate the total cost assuming
an appeal takes place and that SB 97 is not enacted.
MR. HEIG said he expects the actual costs to decrease this year
because of the structured time period to take public comment and
wait for a record of decisions. If Greens Creek goes into a
court proceeding next January, the cost will depend on the
length of time and the legal costs. He said that will cost at
least $500,000.
SENATOR OGAN surmised that Greens Creek could spend at least $2
million and then face litigation that potentially could kill the
project.
MR. HEIG said Greens Creek will run out of tailings capacity in
March of 2005. Construction to build a new tailings facility
will take one season. If it loses next year's construction
season because of an appeal, Greens Creek could be forced to
shutdown in early 2005 until the process is completed.
SENATOR OGAN asked the amount of Greens Creek's annual payroll.
MR. HEIG answered about $25 million.
1:57 p.m.
MS. PAM LABOLLE, President of the Alaska State Chamber of
Commerce, stated support for SB 97. She told members the Alaska
State Chamber worked very hard to bring Court Rule 82 into being
and believes it is fair to all. Under Rule 82, if the prevailing
party is the defendant, it recovers 20 to 30 percent of the
attorney fees incurred, the rationale being that it encourages
settlement and provides partial compensation to parties who are
forced to litigate to defend their rights. The Alaska Supreme
Court's public interest litigant policy has watered down Civil
Rule 82. It provides an incentive to file even weak claims
because the public interest litigant suffers no economic burden
if it loses.
MS. LABOLLE maintained that public interest litigants will not
be treated unfairly under SB 97; they will simply be treated
like all other Alaskans. Public interest litigants have the same
opportunity to participate during the process of creating
administrative rulings. They have the right to participate in
drafting legislation and to participate in all hearings before
an agency. However, once an agency or the legislature makes a
decision, public interest litigants have special rights that
other Alaskans do not have.
She said the Alaska Chamber of Commerce is a private non-profit
organization. It deems itself to be the voice of Alaska
business, which is a public interest. The business interests in
the state provide most of the non-government jobs and most of
the economic engine. Yet, the three times the Chamber has sued
during her tenure, the Chamber was not deemed a public interest
litigant. She said, as a previous witness stated, that
experience can be very chilling. The Chamber has to decide
whether a case is worth pursuing if it might have to pay 30
percent of the attorney's fees of the other party. Members pitch
in $25 to $100 if they believe a case is important enough. The
Chamber has had to play by the rules like all other Alaskans.
The Chamber feels that since public interest litigants have the
right to participate in every other step of the process on an
equal footing with other Alaskans, it should also be on an equal
footing when using the court system.
SENATOR FRENCH asked Ms. LaBolle if she favors eliminating the
public interest litigant doctrine altogether.
MS. LABOLLE said she does; the Chamber feels that Court Rule 82
provides a level playing field and applies to all Alaskans.
CHAIR SEEKINS took teleconference testimony.
MR. PAUL LAVERTY told members he is a self-employed civil
engineer who brought suit against the Alaska Railroad
Corporation (ARRC) in 2000 for the illegal [award] of a contract
that awarded 1 million tons of gravel to a private Anchorage
corporation. No public testimony, notice or bid occurred for
that contract on the open market. In bringing the lawsuit, he
brought the ARRC's board of directors' attention to the fact
that this was something it needed to look into. He also brought
it to the attention of former Senator Loren Leman,
Representative Kay Brown and Representative Terry Martin.
Representative Martin served on the Legislative Budget and Audit
(LBA) Committee at the time and requested an audit be done. The
committee issued audit number 08-4547-96 that upheld some of Mr.
Laverty's concerns about the legality of the contract.
MR. LAVERTY told members that after the audit was released, he
again contacted the three legislators asking them to forward the
report to the attorney general for action to nullify the
contract. When that did not occur, he filed the lawsuit after
much soul searching because he was not sure whether he would be
liable for attorney's fees. After his suit rolled through the
entire process, he was deemed to be a public interest litigant;
therefore, his attorney was awarded his fees.
MR. LAVERTY said that SB 97 would preclude citizens like himself
from bringing forth actions against state agencies that have
complete disregard for their internal procurement rules and the
Alaska Constitution. He urged members to think before limiting
private citizens' abilities to bring action against the
government after they have made every attempt to remedy the
situation outside of court. He stated opposition to SB 97.
2:10 p.m.
MS. NANCY WAINWRIGHT, an Anchorage attorney, said she believes
whatever decision the committee makes should be based on
accurate information. She cautioned that the assistant attorney
general might have provided the committee with some erroneous
facts. She said she is the attorney that represented the
individual plaintiff - it was not a well-funded group - in the
Prince William Sound tanker farm lawsuit. She took that case as
part of her pro-bono requirements for the Alaska Bar
Association. This individual was deemed to be an indigent and he
was a fisherman who was severely impacted by the Exxon Valdez
oil spill. He took a sincere interest in trying to make things
better for the future rather than to seek recriminations. He and
numerous other administrative appellants, including the Kodiak
Island Borough, the City of Cordova, and numerous fishermen and
fishing groups, began a long saga of trying to get through the
Department of Environmental Conservation's (DEC) administrative
appeals process. By the time the decision was rendered, the
tanker plans had expired. She pointed out that although there
were 84 points on appeal listed for the court, only five
substantive issues and three procedural issues were briefed.
Because the plans had expired, the court found the case moot.
Therefore, the assistant attorney general's statement that her
client did not prevail on any issues is not exactly accurate.
MS. WAINWRIGHT said were it not for her client and the other
appellant's actions, there would be no protection for the Copper
River delta with specific plans to respond to an oil spill. The
use of state-of-the-art tractor tugs was negotiated during the
time of this appeal. They escort the tankers and are world
renowned in their effectiveness. Sensitive areas inside and
outside of Prince William Sound that need special plans to
protect them because of their unique configurations would not be
protected. Those are the kinds of issues this single individual
pursued all of the way to the Supreme Court. She felt it is very
misleading for the assistant attorney general to suggest that by
listing certain issues on appeal, which is just a procedural
step, and not carrying those forward in a brief somehow
justifies eliminating public interest litigant status for
everyone.
MS. WAINWRIGHT said she has practiced law in Alaska for 16 years
and believes it is very important that this committee be given
accurate facts upon which to base this very important decision.
She thanked members and offered to answer questions.
SENATOR THERRIAULT asked if the lower court determined that her
fees should not be paid.
MS. WAINWRIGHT said that is correct and the court made that
determination because the case was found to be moot so there was
no prevailing party in that sense. However, the court did say
her client prevailed on certain issues but none of significance.
That is what has been appealed to the Supreme Court.
MR. ALAN JOSEPH, Association of Village Council Presidents
(AVCP), told members that the AVCP sent a letter in opposition
to SB 97 and HB 145. He gave the following highlights of that
letter.
Public interest litigant protections are important because
people are able to bring lawsuits on matters in which they have
no direct financial stake. These bills will make it much harder
to challenge public land and wildlife decisions made by state
agencies that undermine the [Native] way of life.
A recent amendment to SB 97 offered in the Senate Resources
Committee makes the bill even worse. That amendment would make
the lifting of public interest litigant protections apply to all
public interest lawsuits, whether they involve state resource
agencies or not.
The consequences will be devastating for rural Native people.
For instance, two lawsuits are pending in the Alaska Court
System: Kasillie vs. State, an equal protection lawsuit, and
Alaska Intertribal Council vs. State, an equal police protection
lawsuit. The AVCP believes the individual residents of its
region show great courage by stepping forward as plaintiffs in
these lawsuits. They are complex lawsuits that require a great
amount of attorney time. Currently the plaintiffs are protected
by their public interest litigant status should their lawsuits
prove unsuccessful. SB 97 will do away with that protection and
leave the plaintiffs exposed to the risk of having to pay the
state's legal fees and they would lose everything they own. It
is likely that passage of these bills will discourage people
from filing any lawsuits against the state at all. AVCP thinks
that is the intent of this legislation. These bills were put
forth by the DOL in an effort to intimidate those who stand up
to them in court. The AVCP finds it highly ironic that an
administration that wants to cut government is putting forward
legislation that is designed to coerce people into not standing
up to abuses by the government.
MR. JOSEPH said although proponents of this legislation say it
will even the playing field, the rich and well-to-do will be
able to obtain high priced attorneys to represent their
interests in court and they usually do because they have an
economic incentive to bring these lawsuits. In contrast, public
interest litigants do not have a financial interest in the
outcome of the lawsuits.
CHAIR SEEKINS announced that with no further questions or
testimony, SB 97 would be held in committee and that he would
close public testimony. He then announced an at-ease for several
minutes.
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