Legislature(2003 - 2004)
05/05/2004 08:24 AM 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 CHAIR SEEKINS informed members that a new proposed committee substitute (CS), labeled version X, was before the committee. SENATOR THERRIAULT moved to adopt version X for the purpose of discussion. Without objection, the motion carried. SENATOR THERRIAULT asked how the issues of sovereignty and the preservation of the rights to appeal the recent court decision have been addressed in version X. CHAIR SEEKINS said that according to Section 6 on page 5, Sections 2 through 5 of the act apply to civil action appeals filed on or after the effective date of the bill, therefore it would not affect the current lawsuit. SENATOR FRENCH noted that according to Section 8, Sections 5(a) and (c) are retroactive to September 11, 2003. CHAIR SEEKINS took an at-ease from 8:25 a.m. to 8:30 a.m. He then stated that according to Section 8, the retroactivity clause would apply to the court rules. Section 4 of Version G-2, which applied to sovereign immunity, was removed from version X. SENATOR THERRIAULT said he did not feel that using the sovereign immunity approach to say that the legislature shall not pay the court ruling for fees, discussed the previous day, was the preferable way to go out because it would set up a potential constitutional conflict between the legislature with its appropriation powers, and the judicial branch. CHAIR SEEKINS agreed. SENATOR FRENCH asked if the provisions of Section 2(f) through (i) are identical to legislation passed the previous year. SENATOR THERRIAULT said that is his understanding. SENATOR FRENCH noted according to the recent court decision, subsection (f) and (g) are unconstitutional. He asked Mr. Tillery to respond to that concern. MR. CRAIG TILLERY, Assistant Attorney General, Department of Law (DOL), said version X would still contain a two-thirds vote requirement for a court rule change, which was the primary leg upon which the court decision was based. He noted the court decision, with respect to fees against a public interest litigant, was also based on due process and equal protection grounds. He continued: And to a large extent, that was responding to the court's understanding that the legislature - of a disconnect between the legislature's - what they do - the legislature's focus on natural resource cases and the fact that the bill affected a broader range of cases. I haven't seen the bill but at least some versions have made it clear that the legislature understands that this does affect a broader range of cases other than just natural resource cases. I don't know if that's in there. CHAIR SEEKINS interjected to say that those sections in version X are the same as those in version G-2. MR. TILLERY replied: Then there was something in [version] G-2 that did make sure that connection was there so that would have to go back to the court for it to do that. Okay, with that understanding now, is it constitutional? So it would present the court with a different concern. Also ... part of those statutes was the attorneys' fees to a public interest litigant. The court ... indicated that they were not raised. In the G-2 version, that was split out and a severability clause was added to make clear that the legislature was treating those as separate - the fees to a public interest litigant and the fees against so that if one of those proved to be constitutionally infirm, the other could still stand. And again, I haven't seen the version so I don't know if that survived or not. CHAIR SEEKINS asked where that provision was located in version G-2. MR. TILLERY said that was in Section 2 (f) and (g). Subsection (f) of the version last year said the court or the state could not discriminate the award of attorneys' fees to or against. In version G-2, (f) was made to a party and (g) was made against a party. CHAIR SEEKINS asked if that was in Section 2 of version G-2. MR. TILLERY said what was originally combined into one section was divided into subsections (f) and (g) of Section 2 in version G-2. MR. TILLERY said this version, as opposed to HB 145, clarifies that should the court determine that the award of attorneys' fees against a public interest litigant is constitutionally defective, the legislature's decision regarding fees to a public interest litigant may still stand. SENATOR FRENCH pointed to Section 4 on page 4 of version X, regarding attorneys' fees and costs. CHAIR SEEKINS interjected to say that Section 4 was Section 5 in version G-2. SENATOR FRENCH asked if everyone is operating on the premise that section 4 is aimed at subsistence cases and what the drafter's intent was. SENATOR THERRIAULT said his understanding is that section is aimed at subsistence cases. SENATOR FRENCH asked Mr. Tillery if he agrees that language creates a far weaker standard than the one the state has been operating under for some time. He noted: The standard here is that you'll get your attorneys' fees if you do not otherwise have an economic incentive to bring the case. That seems to imply that if you have any economic incentive to bring the case, then you can't be a public interest litigant, but the standard we've been working under is quite different. The standard we've been working under says your economic incentive must be sufficient incentive to file a suit in order to fail. So, that is, you've got to have a sufficient economic incentive to bring it for money reasons, and if you have that sufficient incentive, then you're not a public interest litigant. Mr. Tillery, I'd be interested in hearing your comments on that change in standards. MR. TILLERY commented that he believes a court would construe that similarly to the way it now considers an economic incentive with regard to public interest litigant criteria. He stated: In fact, this provision is actually more beneficial to a public interest litigant than the current court-made policy in that it does not require the other three factors. It doesn't require a large number of people to be affected and it doesn't require an issue of great public importance and so forth. It only really - if you fit within - if it's an appeal from this kind of a case, and if you don't have an economic incentive - and I certainly agree, you could construe - it could be argued that that is a tougher standard but - and I don't know what the drafter's intentions were but I don't believe a court would construe it as tougher. I think the court would view it as too extensive with its public interest litigant criteria. SENATOR FRENCH then questioned whether the drafter's intent is to weaken or maintain the standard. SENATOR THERRIAULT deferred to the drafter to answer that question. CHAIR SEEKINS agreed to contact the drafter. He then asked Mr. Tillery whether he sees this provision as creating a tougher or weaker standard to award attorneys' fees. MR. TILLERY said it comes down to a question of intent and noted that the constitutional exception uses different language: it says the claimant does not have sufficient economic incentive to bring the action or appeal regardless of constitutional claims involved. The language [in version X] is drafted differently. He explained that if the drafter's intent is to use the same standard, using the same language would be useful. CHAIR SEEKINS asked if subsistence is not an economic interest but is an interest of meeting the protein needs of one's family. MR. TILLERY replied, "Mr. Chairman ... this section is not, as I read it, is not directed solely at subsistence so it would include any actions of the Board of Fisheries or the Board of Game." SENATOR FRENCH asked why Sections 5(a) and (c) need to be made retroactive to September 11, 2003. CHAIR SEEKINS asked Mr. Tillery if there is any reason from DOL's perspective. MR. TILLERY said he was again at a disadvantage as he was looking at an older version of the bill. CHAIR SEEKINS announced an at-ease from 8:43 a.m. to 8:48 a.m. He then asked the drafter, Jerry Luckhaupt, to walk members through the bill. MR. JERRY LUCKHAUPT, legal counsel, Legal and Research Services Division, asked that Mr. Balash address the first question. MR. JOE BALASH, staff to Senator Therriault, told members: In looking at the provision on Title 16, what we were attempting to do was allow for the appeal of the Board of Game, Board of Fish decisions for individual subsistence and personal use users. We wanted to cleave away those who had a large economic incentive, like a commercial fish harvester or processor or a big game guide and sort of take those folks out of the equation. And so, while the intent may not have been to create a necessarily weaker standard for a litigant to qualify for full fees, that's how it came back and, after thinking about it a little bit, I guess the question is for the committee - do you want, in order to protect subsistence users, do you want to give them a little bit lower bar because you find that the benefits and the privilege and right for subsistence users who depend on their food to be a little bit lower? CHAIR SEEKINS said he had no problem with that as long as it is done on an individual basis, so that the bill will not create a lower bar for a whole new class of people. He said that would allow those people who depend on the resource to challenge the ability of their families to do so. He asked Mr. Luckhaupt if the bill was drafted clearly enough so that it addresses individual cases and not class action lawsuits. MR. LUCKHAUPT said it will not preclude groups of people from gathering together to challenge those decisions. He continued: And nominally even in a class action, you're going to have nominal plaintiffs - you're going to have to go out and find a plaintiff, a particular person that's affected and name them and then you certify your class action afterwards so, you know, it doesn't preclude those types of actions but to the extent that it involves groups or organizations or corporations that have an economic incentive either in the fishery or in harvesting the resource, then it should be precluded under this. CHAIR SEEKINS asked if the bill could be drafted to clarify that it is intended for those people who depend on the resource for sustenance as part of that process. MR. LUCKHAUPT assumed he could be more specific but cautioned the more specific the language, the more potential for problems such as equal protection because it would create benefits for one smaller group that are denied to others. He advised that sufficient justification would have to be provided for that decision. He added, "That may be that, you know, these are people that you've decided depend upon the resource for sustenance and that may be a good enough reason. I don't know. A court will decide that based upon the sliding scale approach, the equal protection approach." CHAIR SEEKINS responded that in looking at how Title 16 applies right now, as far as game is concerned, almost every resident is considered to be a subsistence user because of the tier system that applies to all residents on an equal basis. He said he would have no problem saying that those people who depend on the resource to feed their families should be entitled to the full award of fees for actions taken by the Board of Game as he believes that is consistent with what is considered to be subsistence. The Boards of Game and Fisheries have, under the current system, a primary responsibility to provide for subsistence uses. He commented, "We do have the highest priority for the uses of the resource to be subsistence and for those people who are using the courts to be able to protect that right, that they have the ability to recover full attorneys' fees. Now would that make it easier to justify it in terms of equal protection under the Constitution?" MR. LUCKHAUPT said that providing for people's basic sustenance would be a fairly substantial justification. CHAIR SEEKINS referred to page 4 and asked Mr. Luckhaupt to provide a conceptual amendment for the committee's consideration. SENATOR THERRIAULT asked for an answer to the question [about retroactivity] in Section 8. SENATOR FRENCH reiterated his question of why Sections 5(a) and (c) would be retroactive to September 11, 2003. MR. BALASH replied that he could not remember the exact effective date of HB 145 but he believed it was sometime after September 11. He explained that the litigation that Judge Collins ruled on was filed in Superior Court the day before that law [HB 145] went into effect. Therefore, September 11 was prior to the date that case was filed. SENATOR FRENCH asked if the intent of Section 8 is to cure the defects Judge Collins found in the law by making this bill take effect before HB 145 went into effect. MR. BALASH believed that was correct. MR. LUCKHAUPT responded: ...That's sort of that view - while the legislature did not agree that there was a defect with a change to the court rule affecting attorneys' fees was procedural, if it was, basically the legislature in portions of this bill is attempting to go back and say the time that bill was passed - here's a two-thirds vote.... And so it's up to the court to decide whether they can relate back or not. I'm doubtful that that could occur. I'm doubtful that any new provisions we enact now, that we could somehow relate those back. In fact I'm pretty sure that wouldn't happen. SENATOR THERRIAULT pointed out that the committee discussed a section that stripped out the old statute, which precluded the legislature and administration's right to continue to appeal a lower court's ruling. That section was removed so that right has been preserved. Therefore, if the legislature and administration want to further litigate that issue, that right has been preserved. CHAIR SEEKINS asked Mr. Luckhaupt and Mr. Balash to draft an amendment to Section 4 to make sure it applies to subsistence users on an individual basis, which he would introduce later in the process. He then closed public testimony, as there were no more participants. SENATOR THERRIAULT pointed out that he requested a new fiscal note from the Administration, which was delivered that morning. CHAIR SEEKINS stated the new fiscal note is a zero fiscal note. SENATOR FRENCH asked how much has been spent to date defending the previous law in court. CHAIR SEEKINS indicated that Mr. Marcus [of DOL] was unaware of the cost. SENATOR THERRIAULT moved CSSB 97(JUD) from committee with individual recommendations and its attached zero fiscal note. SENATOR FRENCH objected. The motion to move CSSB 97(JUD) carried with Senators Ogan, Therriault and Seekins in favor, and Senator French opposed.
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