Legislature(2001 - 2002)
04/30/2001 02:25 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 30, 2001
2:25 p.m.
MEMBERS PRESENT
Representative Norman Rokeberg, Chair
Representative Scott Ogan, Vice Chair
Representative John Coghill
Representative Kevin Meyer
Representative Ethan Berkowitz
Representative Albert Kookesh
MEMBERS ABSENT
Representative Jeannette James
OTHER LEGISLATORS PRESENT
Senator Dave Donley
COMMITTEE CALENDAR
SENATE BILL NO. 183
"An Act relating to public interest litigants and to attorney
fees; and amending Rule 82, Alaska Rules of Civil Procedure."
- HEARD AND HELD
PREVIOUS ACTION
BILL: SB 183
SHORT TITLE:ATTY FEES:APPORTIONMT/PUBLIC INT.LITIGANT
SPONSOR(S): FINANCE
Jrn-Date Jrn-Page Action
04/09/01 1014 (S) READ THE FIRST TIME -
REFERRALS
04/09/01 1015 (S) FIN
04/23/01 1213 (S) FIN RPT 4DP 5NR
04/23/01 1213 (S) DP: DONLEY, GREEN, WARD,
LEMAN;
04/23/01 1213 (S) NR: KELLY, AUSTERMAN,
HOFFMAN, OLSON,
04/23/01 1213 (S) WILKEN
04/23/01 1214 (S) FN1: ZERO(LAW)
04/23/01 (S) FIN AT 9:00 AM SENATE FINANCE
532
04/23/01 (S) Moved Out of Committee
04/23/01 (S) MINUTE(FIN)
04/25/01 1261 (S) RULES TO CALENDAR 1OR 4/25/01
04/25/01 1263 (S) READ THE SECOND TIME
04/25/01 1263 (S) ADVANCED TO 3RD READING
FAILED Y14 N6
04/25/01 1264 (S) ADVANCED TO THIRD READING
4/26 CALENDAR
04/25/01 (S) RLS AT 10:45 AM FAHRENKAMP
203
04/25/01 (S) MINUTE(RLS)
04/26/01 1285 (S) READ THE THIRD TIME SB 183
04/26/01 1286 (S) PASSED Y12 N8
04/26/01 1286 (S) COURT RULE(S) ADOPTED Y14 N6
04/26/01 1286 (S) ELLIS NOTICE OF
RECONSIDERATION
04/27/01 1310 (S) RECONSIDERATION NOT TAKEN UP
04/27/01 1311 (S) TRANSMITTED TO (H)
04/27/01 1311 (S) VERSION: SB 183
04/28/01 1296 (H) READ THE FIRST TIME -
REFERRALS
04/28/01 1296 (H) JUD
04/28/01 1296 (H) REFERRED TO JUDICIARY
04/30/01 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
BILL CHURCH, Staff
to Senator Dave Donley
Alaska State Legislature
Capitol Building, Room 506
Juneau, Alaska 99801
POSITION STATEMENT: Testified on behalf of the Senate Finance
Committee, sponsor of SB 183.
DALE BONDURANT
Alaska Constitutional Legal Defense Conservation Fund
31864 Moonshine Drive
Soldotna, Alaska 99669
POSITION STATEMENT: Testified in opposition to SB 183.
AL SUNDQUIST, President
Alaska Chapter
Americans United for Separation of Church and State
PO Box 244384
Anchorage, Alaska 99524
POSITION STATEMENT: Testified in opposition to SB 183.
ROBIN SMITH
14100 Jarvi
Anchorage, Alaska 99515
POSITION STATEMENT: Testified on behalf of herself in
opposition to SB 183.
APRIL FERGUSON
PO Box 202869
Anchorage, Alaska 99520
POSITION STATEMENT: Testified in opposition to SB 183.
ROBERT BRIGGS, Staff Attorney
Disability Law Center of Alaska
230 South Franklin Street
Juneau, Alaska 99803
POSITION STATEMENT: Testified in opposition to SB 183.
LAUREE HUGONIN
Alaska Network on Domestic Violence and Sexual Assault
130 Seward
Juneau, Alaska 99801
POSITION STATEMENT: Testified in opposition to SB 183.
PAM LaBOLLE, President
Alaska State Chamber of Commerce
217 2nd Street
Juneau, Alaska 99801
POSITION STATEMENT: Testified in support of SB 183.
JUDY ERICKSON, Owner
Capital Information Group
PO Box 21804
Juneau, Alaska 99802
POSITION STATEMENT: Testified on SB 183.
ACTION NARRATIVE
TAPE 01-79, SIDE A
Number 0001
CHAIR NORMAN ROKEBERG called the House Judiciary Standing
Committee meeting to order at 2:25 p.m. Representatives
Rokeberg, Ogan, Coghill, and Meyer were present at the call to
order. Representatives Berkowitz and Kookesh joined the meeting
as it was in progress.
SB 183-ATTY FEES:APPORTIONMT/PUBLIC INT.LITIGANT
CHAIR ROKEBERG announced the first order of business, SENATE
BILL NO. 183, "An Act relating to public interest litigants and
to attorney fees; and amending Rule 82, Alaska Rules of Civil
Procedure."
Number 0052
BILL CHURCH, Staff to Senator Dave Donley, Alaska State
Legislature, came forth on behalf of the Senate Finance
Committee, sponsor of SB 183. He stated:
Senate Bill [183] makes public interest litigants
subject to Alaska Court Rule 82 regarding judgments
for attorney fees, thus adopting a uniform standard
for all litigants. Courts would still continue to
have the ability to award higher fees or full attorney
fees whenever the court felt that exceptional
circumstances justified the higher award.
Through Alaska Supreme Court decisions, the doctrine
known as Public Interest Litigant Doctrine [PILD] has
been established. The doctrine isn't codified in law
or set out in any court procedure. The courts
apparently felt that the Public Interest Litigant
Doctrine created a social policy to encourage
plaintiffs to advocate for issues that are deemed by
the court to be in the public interest.
Civil Rule 82 sets out the formula for the
reimbursement of attorney fees to be collected by a
prevailing party in a legal action. Court Civil Rule
82 limits attorneys' fees recovered by prevailing
litigants to 20 percent of the litigants' reasonable
actual attorneys' fees incurred on a case resolved
without trial and 30 percent in a case that does go to
trial.
The PILD does create an exception to Civil Rule 82 by
allowing the courts to classify a party as a public
interest litigant, thus allowing the party to collect
full or reasonable attorney fees if they prevail. And
if they lose, the public interest litigant pays none
of the prevailing party's attorney fees. And it's not
a good public policy when not even innocent victims of
violent crime who bring subsequent civil suit against
criminals are allowed such generous attorney fees.
Additionally, Senate Bill 183 prevents legal fees from
being awarded to a litigant for claims on which they
did not prevail. Such awards serve to promote
spurious lawsuits, since plaintiffs know they will
receive compensation for all costs even if they only
win on one or several of the points that they brought
up at suit.
This problem was created recently in an Alaska Supreme
Court decision titled Dansereau v. Ulmer in 1998.
Prior to Dansereau v. Ulmer, lawyer fees for public
interest litigants were only awarded for issues on
which they prevailed. Dansereau v. Ulmer set a
precedent that allows courts to award lawyer fees for
all contested points even if the public interest
litigant only prevailed on one.
Senate Bill 183 also includes a provision that gives
courts the flexibility to continue to follow the
Dansereau case or award higher or full attorney fees
when the court finds exceptional circumstances to
justify the higher reward. Senate Bill 183 was
introduces to make public interest litigants equally
accountable for their lawsuits and to protect the
state from having to pay excessive lawyer fees for
frivolous public litigant cases. Based on the claims
paid in recent years this legislation could save the
state hundreds or thousands of dollars annually. ...
Finally, what this does is it promotes a uniform
standard of attorney fee payments under Rule 82 to all
litigants [and] it creates a disincentive to promote
spurious lawsuits. ... It does not diminish the
ability of the court to award higher or full attorney
fees. In other words, a court can still award the
full fee in a public interest litigant case, but it
does set the standard for the court as a baseline that
they are subject to Rule 82 unless they wish to go
beyond that.
So, anyone that's going to say that this takes away
their right to collect attorney fees, I don't believe
has really read the bill, because it does not do that.
In each situation, it allows the court to award the
attorney fees. And lastly, it's just good public
policy to treat all litigants alike.
Number 0418
CHAIR ROKEBERG asked Mr. Church whether the change in policy in
the Dansereau case is the primary rationale for bringing forth
this particular bill.
MR. CHURCH responded that this bill was brought forth in the
21st legislature. It made it through the Senate, but it was too
late in the session to receive a hearing in the House.
Number 0491
DALE BONDURANT, Alaska Constitutional Legal Defense Conservation
Fund, testified via teleconference in opposition to SB 183. He
stated that he thinks this effectively eliminates the ability of
an ordinary "John Doe" to legally defend the public's
constitutional right under the national law.
MR. BONDURANT said he is a 54-year resident of Alaska and has
been active in the fish, wildlife, and water resources of the
state. In 1977, he was one of three named plaintiffs in the
case in which the Alaska Constitutional Legal Defense Fund sued
the Secretary of the Interior. They won that all Alaskan waters
had reasonable access in Alaska.
MR. BONDURANT remarked that Alaska even adopted a change in
statute to ensure that these waters were available for the use
by all people. In 1987, he said, they dragged the state into
another case and won for the treatment of 30 million acres of
submerged land and over 100,000 miles of waters. Also under
that case, the state won the right to manage all the resources
within those waters.
MR. BONDURANT said [the Alaska Constitutional Legal Defense
Fund] has consistently defended the privilege and immunity
clauses, the constitution, equal protection rights, and having
no discrimination because of race. He said he thinks [the
Alaska Constitutional Legal Defense Fund] has proven its point;
however, [SB 183] will eliminate them from the deal, because
there is no guarantee that they will get their funding back. If
they lost a big case, they would have to pay out of their own
pockets.
MR. BONDURANT asked the committee to kill the bill because he
thinks it denies the average citizen the right to protect the
public from "big money."
Number 0756
REPRESENTATIVE OGAN stated that SB 183 is aimed at the
organizations that continually bring public interest lawsuits
against the state over wildlife issues. He said he understands
that it is a "two-edged sword." He asked Mr. Bondurant whether
those groups would be able to continue with lawsuits if this
were to be eliminated. He said it seems that some groups use
these issues to raise a tremendous amount of money. One example
would be Greenpeace's using the ANWR (Arctic National Wildlife
Refuge) issue as one of its greatest fundraisers. He emphasized
that it seems $100,000 is a "drop in the bucket" for
[organizations] that have the national fundraising capacity of
raising tens of millions of dollars.
MR. BONDURANT responded that he thinks Representative Ogan is
right on those cases. He said this, however, is going to
eliminate guys like him who are defending the rights of the
general public, not those [large organizations]. If [the large
organizations] lose a case, there are people willing to write
them a $.5 million check
REPRESENTATIVE OGAN asked whether there is a way to tighten [the
bill] for people who are truly suing on behalf of the public's
interest and don't have the resources to otherwise sue. He said
he thinks anybody with deep pockets and millions of dollars in
the bank who is funding a lawsuit with state money is abusing
the system. He noted a letter in his bill packet about people
with disabilities who can't sue and said he is looking for a way
to accommodate that, with the bill sponsor.
MR. BONDURANT replied that he doesn't know how Representative
Ogan could do that. He said it is hard to separate people into
classes, and he thinks [the legislature] is responsible for
making sure the public is heard. He added that he thinks his
organization is well known in Alaska for fighting for the equal
rights of everybody.
Number 1090
AL SUNDQUIST, President, Alaska Chapter, Americans United for
Separation of Church and State, testified via teleconference in
opposition to SB 183. He stated:
Americans United is based in Washington, D.C., and is
a national, nonpartisan, nonsectarian organization
committed to preserving the constitution and principle
of religious liberty and separation of church and
state. Founded in 1947, the organization represents
60,000 members and (indisc.) houses of worship in all
50 states.
Although only six months old, the Alaska chapter is
growing rapidly, and in response to results, we
established (indisc.) the First Amendment by far-right
religious organizations. I oppose the placement of
economic obstacles to the use of the courts by the
Alaskan citizens. I am concerned about the loss of
redress and grievances and actions regarding religious
liberties threatened by this bill, as it is [a] denial
of access by individuals to the courts to resolve
these disputes. Please vote no on SB 183.
REPRESENTATIVE OGAN asked Mr. Sundquist whether he is part of
the group that advocates removing "In God We Trust" from [U.S.]
money.
REPRESENTATIVE BERKOWITZ suggested sticking to the subject.
MR. SUNDQUIST responded no [to Representative Ogan's question]
and pointed out that [his organization] has been in defense of
both the establishment clause and freedom of choice.
Number 1234
ROBIN SMITH testified via teleconference on behalf of herself in
opposition to SB 183. She stated that she thinks this bill will
effectively eliminate public interest lawsuits, except those by
large or wealthy organizations. One reason lawsuits occur in
Alaska, she said, is because several laws have passed that are
unconstitutional. She suggested that one way to eliminate some
lawsuits is to require that new laws pass a constitutionality
requirement prior to enactment. This bill, she added, will have
an impact on conservative and liberal interests.
MS. SMITH went on to say that Wev Shea spoke last year against a
similar bill and again this year against this bill in the Senate
Finance Committee indicating that this wrongly eliminates the
public's voice. She stated that she does not believe the bill
has sufficient public input. The notification online, she said,
was inaccurate, saying that the Senate Finance Committee was not
going to take any testimony and that [the bill] is only going to
be heard in the House once. She expressed that she doesn't
think that is a good public process and asked, if this bill is
such an excellent bill, why it is being rushed.
CHAIR ROKEBERG asked whether she had anything in mind for a
constitutional test.
MS. SMITH responded that she didn't. She remarked that she has
noticed several bills that have been challenged and put down
based on their unconstitutionality. If all laws enacted by the
legislature passed a constitutionality review, "we" wouldn't be
setting ourselves up for lawsuits.
CHAIR ROKEBERG remarked that he is not so sure that most
lawsuits emanate from laws passed by the legislature. He
suggested that legislators are responsible for passing only
constitutional laws.
MS. SMITH remarked that several times there have been attorneys
tied to the state who don't think a particular law is
constitutional, yet the legislature has passed bills like this
in the past. In some ways, she said, the legislature sets
itself up for lawsuits.
Number 1450
APRIL FERGUSON testified via teleconference in opposition to SB
183. She said she believes it is bad law and bad public policy.
She stated:
I believe that this bill places a hurdle in front of
citizens who wish to complain about government or seek
redress from harm allegedly done by government. And I
do not believe that all litigants are alike. I think
that public [interest] advocates come (indisc.) on
behalf of the general public and that this bill is
really going to kill their ability to do so, or people
are just not going to be able to afford to come before
the court.
... I would like to bring your attention to a letter
by Mr. Robert Briggs, a staff attorney for the
Disability Law Center. ... Mr. Briggs talks about some
of the unintended consequences of SB 183 and how ...
this particular bill may affect land use regulations,
redistricting decisions, illegal taxes, unlawful
election (indisc.), [and] school district actions.
Virtually any type of challenged government action
would be possibly impacted by this bill. ...
I also think that this is being rushed. I don't think
that a lot of people know that it is out there, and I
think it takes a much more careful, thoughtful
scrutiny than being addressed in the last stage of the
legislative session. And if the purpose of this bill
is aimed at natural resource litigation or the
environmental community, then we all know those
particular groups have access to quite a bit more sums
of money than a number of these other smaller groups
such as the Disability Law Center.
Number 1612
ROBERT BRIGGS, Staff Attorney, Disability Law Center of Alaska,
came forth in opposition of SB 183. He stated that if the
purpose of the bill is to prevent frivolous litigation, it's
unnecessary. Existing doctrine in the public interest litigant
exception clearly states that people who bring cases in bad
faith and for vexatious purposes are liable for full attorney
fees and costs. That doctrine applies to public interest
litigants as well as anybody who brings a case because of a
direct financial interest.
MR. BRIGGS remarked that he thinks the bill will have little
effect on some of the cases it is intended to prevent in the
future. Most cases involving the permitting of infrastructure
for research development in Alaska will be brought in federal
court and won't be affected by this bill.
MR. BRIGGS said it is unlikely the bill will stop out-of-state
moneyed interests; in fact, he thinks the bill will fuel their
fundraising efforts. It will give them an example of how the
Alaska State Legislature is so adverse to their interests that
they need more money to fund their lawsuits.
MR. BRIGGS said the important point, brought up by Mr.
Bondurant, is that there will be unintended victims of this bill
- Alaskan victims. Mr. Briggs suggested that even ordinary
litigants with public interest cases will be victims, because it
encourages focusing on who is a prevailing litigant based on
issue, and it will cause two trials: one over the merits of the
case, and one over who won by a greater margin and which issues
they prevailed upon.
Number 1760
MR. BRIGGS went on to say that there is an insightful opinion by
Justice Jay Rabinowitz against the revisions to Civil Rule 82 as
it applies to regular litigants. Mr. Briggs stated that he had
participated as part of the Civil Rule 82 revision committee
around 1992. Justice Rabinowitz opposed Civil Rule 82 and
argued that all of the factors would actually cause attorneys to
fight more over the attorney fees after the litigation itself
had been decided. Mr. Briggs said he thinks the supreme court
wisely decided that that these factors should be fought about in
public interest cases as well.
MR. BRIGGS stated that he thinks other victims of this bill
would be those who seek court resolution of disputes involving
something other than money. Some examples would be those who
litigate over the question of when human life should be
recognized; the parameters of religious practice and belief; or
the limits of science and medicine and dealing with human cells
or tissue, genetic, or health information.
MR. BRIGGS said if he has to tell a family that they should
expect to pay 20 percent of the other side's fees, should they
lose in a dispute, they will definitely be "chilled" from
bringing a lawsuit, simply because they are poor.
MR. BRIGGS urged the committee to not pass the bill. However,
if it should pass, he asked the committee to substantially
revise it to eliminate its practical effect: taking away from
the courts the discretion of when to exempt, from the penalty
for losing, the cost of attorney fees.
Number 1869
CHAIR ROKEBERG asked Mr. Briggs whether the federal courts have
the same [public interest litigant doctrine].
MR. BRIGGS responded that it has been awhile since he has
brought a federal case. Generally, the Equal Access to Justice
Act governs. He believes it to be somewhat similar to the
public interest litigant exception; under that, people who bring
a case against the federal government for reasons that don't
involve direct financial interests have a low risk of paying
attorney fees, should they lose.
CHAIR ROKEBERG asked whether Rule 11 has ever been used in the
State of Alaska.
MR. BRIGGS answered that he has never been involved in a case
where it has been used; however, he hasn't been in state court
very much. He believes a good civil litigator should never be
in court, because he or she should convince the other side of
the merits of the case before getting to the courthouse door.
CHAIR ROKEBERG asked Mr. Briggs what the National Association of
Protection and Advocacy Systems is.
MR. BRIGGS responded that it is an association of nonprofit and
state agencies in each of the 50 states. As a condition of
receiving federal grants to serve people with disabilities, the
state is required under federal law to set up a protection and
advocacy system. The Disability Law Center, he said, was
designated by Governor Hickel to be the protection and advocacy
system of Alaska. As that system, [the Disability Law Center]
receives some state and federal grants to advocate for people
with disabilities. He stated, "It is our view that as part of
the tools in our tool chest we need to bring lawsuits against
the state."
MR. BRIGGS noted that currently he is litigating a series of
administrative appeals about the administration of the Medicaid
program on behalf of several families with disabled children.
He said it is his belief that the state is not adequately
managing the Medicaid system with regard to the benefits that
should be made available to those families. He said, "If we
lose the tool of seeking courts to redress how the state
administers those benefits, it will be a significant tool we
will have lost in advocating for people with disabilities."
CHAIR ROKEBERG asked whether in that case this has a general
applicability to the individual or the group of clients.
Number 2053
MR. BRIGGS stated that he has five clients.
CHAIR ROKEBERG asked how that makes up the public interest.
MR. BRIGGS responded that [his organization] believes behavior
the state exhibits is systemwide, at least in the Southeast
region.
CHAIR ROKEBERG asked Mr. Briggs whether the courts have accepted
their case as a public interest litigant case.
MR. BRIGGS answered that they are still in administrative
proceedings and have prevailed in two of them; therefore, they
will not need court action. He noted that they had moved to
have the administrative proceedings joined as one proceeding,
but the hearing officer declined.
CHAIR ROKEBERG asked whether it is in Mr. Briggs's best interest
to try to group those cases together so they can qualify for a
public interest litigant case.
MR. BRIGGS answered in the affirmative.
CHAIR ROKEBERG stated that he thinks the system is being
corrupted.
Number 2117
MR. BRIGGS remarked that he would have to respectfully disagree
with Chair Rokeberg about whether the system is being abused.
In his experience, he said, there has not been a lot of public
interest litigation that has been brought frivolously or
abusively. The Dansereau case involved Wev Shea's challenge to
the election practices of the current administration. The
original request of fees involved about $170,000 and the trial
court awarded about $20,000 in fees. He stated that perhaps it
is abusive if the supreme court is saying, "You should not look
into the factors in deciding whether to award attorney fees."
However, he doesn't think the case itself was abusive; the issue
was of fundamental importance to society, which is whether the
city administration properly followed election law when deciding
how to administer the election.
CHAIR ROKEBERG asked what the result of that case was and
whether it had an effect on the state.
MR. BRIGGS answered that it is a larger question than he could
answer.
CHAIR ROKEBERG stated that he figures it had almost no [effect]
other than embarrassing the governor.
Number 2178
REPRESENTATIVE BERKOWITZ pointed out that there are four
threshold questions that need to be answered affirmatively
before someone can qualify as a public interest litigant. These
are not easy thresholds to cross. He acknowledged that the
public interest litigant serves another function besides
advocating for the client and pursuing public policies. There
is also a check and balance on governmental power. He stated
that it is the only way he can think of whereby an individual
can take on the weight of government. "If we retreat from that
concept, we're retreating from one of the most fundamental
notions of how a democracy should work," he added.
REPRESENTATIVE KOOKESH asked Mr. Briggs how long it will be
after this bill passes before he would bring a suit.
MR. BRIGGS responded that he is not sure that [the Disability
Law Center of Alaska] would challenge the bill if it were
passed. He stated that it doesn't raise constitutional
questions, except the right of access to the courts. The people
who will be affected by this bill are going to be "mom and pop"
people who can't afford the risk of loss. He explained that
this would put those people "in the same pot" as all of the
people who are subject to Rule 82. In most states, each side
bears its attorney fees and costs, whether they win or lose;
however, it is unusual that in Alaska if a person loses, he or
she pays 20 percent of the defense's fees. He added that he
thinks the Alaska Supreme Court wisely decided that public
interest litigants should not be subject to that losing penalty
the way the general litigant population is.
Number 2311
LAUREE HUGONIN, Alaska Network on Domestic Violence and Sexual
Assault, came forth in opposition to SB 183. She stated:
We have the unfortunate circumstance of being a public
interest litigant. In 1996, after the Domestic
Violence Act passed, the court was refusing to
implement all three forms of protective orders that
the legislature had, in statute, allowed.
So, we didn't litigate against the executive branch or
the legislative branch; we actually went to court
against the court system and wanted a result to be
that they would conform to the statutory provisions
that allowed a victim of domestic violence to be able
to get one two or three protective orders, the way
that the legislature had set it out.
We prevailed in that case. We did not get all of our
attorneys' fees; we probably got about 75 or 80
percent. ... Since we did prevail, we didn't have to
face the issue of - if we had lost - having to pay the
court system's fees. I think that's an important
concept in the public interest litigant venue. It's
not as if we were going against someone, maybe, of an
equal kind of circumstance.
We were litigating against the court system. ... They
have almost unlimited resources available to them and
... [are] able to continue that litigation, whereas we
don't accept any state money. The federal money we
get, of course, is for projects; it's not available
for any kind of litigation.
... So we were fundraising for private donations to be
able to carry forward the litigation. And it was
fortunate that I had had experience in the legislative
process ... so I could do a lot of legwork for the
attorney. I could get legislative records, and I knew
how to look up and research statutes. And we put a
lot of our own effort into the case.
We also didn't just enter the case frivolously. ... We
approached the court forms committee in trying to talk
to them about how to resolve the situation. We
approached the court system's [administration] in
trying to resolve the situation. We tried to get an
attorney general's opinion about the statutes so that
the court could feel more comfortable in relying on
that to resolve the situation. All of the steps that
we had taken were to no avail. The court system was
firm in its position, and they were not accurate, and
they did have to change to allow for these three forms
of protection.
We entered the lawsuit on behalf of a Jane Doe, who
currently had a threatening situation with the
protective orders. And then we entered it on behalf
of victims who had come after that to be able to take
up this protection that the legislature had afforded
them. So, I think when you are determining whether or
not to move forward with the legislation, it is
important to keep in mind that it's not just the
million-dollar environmental cases that come forward
that take advantage ....
TAPE 01-79, SIDE B
Number 2465
MS. HUGONIN continued:
... [They are] not after money, but they're going to
try and clarify statutes, trying to uphold public
policy, trying to be able to have the institution of
government correct its misbehavior, and I think that's
an important avenue to allow to continue.
So, while I understand that this bill would preclude -
if for some reason we would have to be in the position
of being a public interest litigant again - for us
requesting attorneys' fees, I think it would be very
difficult for us to go forward against an entity with
unlimited resources if we were going to have to pay
their costs in the end. ...
There might be some area for compromise if you're
looking at prevailing issues. I can see some merit to
the fact that if I brought a case and I lost, ...
maybe I shouldn't get all of the money back, if it was
something that I didn't have much of a hope of winning
in the first place. ... I think it's very important
that that's deliberatively thought through, and ...
this isn't the best way to get to the people that
you're really having a problem with.
REPRESENTATIVE KOOKESH asked Ms. Hugonin to define the people
with whom [the legislature] is having a problem.
MS. HUGONIN responded that she understood last year from
testimony that it was the major environmental groups that were
coming forward that made people feel they were taking advantage
of the public interest litigant's status.
Number 2382
PAM LaBOLLE, President, Alaska State Chamber of Commerce, came
forth in support of SB 183. She stated:
Some groups routinely challenge state resource
development decisions and our granted public interest
litigant status by the courts. And these groups are
often special-interest groups posing as public
interest groups and public trusts. And their
challenges typically allege as many as 15 or 20
specific deficiencies in state's administrative
finding. ... When they're challenging the resource
development decisions and they prevail, they generally
prevail ... on one or two issues; however, they are
awarded the attorneys' fees on all, as if they had won
the whole case. That is one of the problems.
The other problem is, we're in a case right now and we
were unable to achieve ... public interest litigant
status. We had to raise money; I think the meter is
running at just a tad in excess of $200,000 right now.
This is in defense of the tort reform ... law that was
passed in '97. And we feel that the ... unfair part
about those who are public interest litigants [is] if
they win, they win it all, and if they lose, they
still win it all. ... The donations that we've
collected for our case have been $25 here, $50 there,
and $100 someplace else. ... It is just a very one-
sided situation. The state chamber was one of the
leading groups [that] fought long and hard to achieve
Rule 82, and the exception is not fair to those of us
who have to abide by Rule 82.
CHAIR ROKEBERG remarked that he is astounded that the state
chamber almost has to go to the "bake sale" level to acquire
funding. He said he thought big business was the monolith of
this state in terms of its deep pockets and its ability to
generate money to influence the public process.
MS. LaBOLLE said that is a misconception.
CHAIR ROKEBERG asked Ms. LaBolle whether the environmental
community has greater access to funding than the business
community does in Alaska for public policy formation.
MS. LaBOLLE answered that that is the perception; however, she
would have no way of knowing if there is proof to that.
Number 2215
REPRESENTATIVE BERKOWITZ asked Ms. LaBolle why their effort to
achieve public interest litigant status was rejected.
MS. LaBOLLE responded that she doesn't know.
REPRESENTATIVE BERKOWITZ asked whether they tried to get in as
an amicus.
MS. LaBOLLE responded that [the Alaska State Chamber of
Commerce] is an amicus.
REPRESENTATIVE BERKOWITZ stated that on the face of what it
takes to be a public interest litigant, that doesn't qualify.
Only a private party can be expected to bring a suit. He stated
that if the state were already involved, the public interest
litigant would be the plaintiff, not the defendant.
CHAIR ROKEBERG remarked that it doesn't seem fair; with the $3
million-plus cost, it could be put in the court budget.
Number 2144
REPRESENTATIVE BERKOWITZ noted that these are areas in which
folks have won.
CHAIR ROKEBERG stated that perhaps it was only a portion of the
claims.
REPRESENTATIVE BERKOWITZ stated that perhaps the payment only
cost a portion of the cost.
REPRESENTATIVE KOOKESH stated that he doesn't think those suits
would have gone away even if there hadn't been this exception to
Rule 82. He said he thinks a lot of those people could afford
to bring those cases.
Number 2116
MS. LaBOLLE remarked that [the Alaska State Chamber of Commerce]
had found that some groups make a good living on these public
interest litigant groups by suing on all sorts of issues within
a case, knowing they can't prevail on much. However, if they
prevail on one [issue], they've gained enough money to have six
more cases.
REPRESENTATIVE BERKOWITZ asked who the groups are that are
getting rich off of public interest litigant status.
MS. LaBOLLE answered that the perception is that they are mostly
the environmental groups who are opposing resource development.
REPRESENTATIVE BERKOWITZ asked for the names of the groups.
CHAIR ROKEBERG asked Ms. LaBolle whether they would be Trustees
for Alaska, Earth Justice, and the Sierra Club.
MS. LaBOLLE responded that "at the risk of being sued for
alleging anything in this committee," it is generally believed
that those are the sorts of groups that gather funding through
the success of their lawsuits.
REPRESENTATIVE BERKOWITZ stated that he understands about
perceptions, but he also understands one objective in court is
to arrive at some form of truth. If the perception is
incorrect, he thinks one way to correct reality is by putting
real groups out there that are actually benefiting.
Number 2008
REPRESENTATIVE KOOKESH asked, when balancing what's in the best
interest of the public, whether it is in [the state's] best
interest to get rid of some of these conservation groups at the
expense of the mom and pops.
MS. LaBOLLE responded that it is a difficult situation; however,
if the commitment to a principle is there, then everyone should
be willing to "pony up" the cost of the litigation. It will
provide more basis if [a group] shows that it has gathered
support to even bring the litigation.
REPRESENTATIVE KOOKESH asked what would happen to an individual
who sees that he or she may owe somebody money down the line.
MS. LaBOLLE noted that court policy establishes public interest
litigant status. What is being sought through legislation such
as this is legislative intent, as well as having the elected
representatives making the decisions as to what the public
policy is.
CHAIR ROKEBERG asked, if this is court policy, whether the
courts should pay, or whether the members of the bar should go
pro bono so that there wouldn't be a discussion of legal fees.
Number 1811
JUDY ERICKSON, Owner, Capital Information Group, came forth to
share a personal story. She stated that she and her husband
brought a suit against the state for failure to disclose records
that had been public for years. She said they were granted
public interest litigant status and prevailed on most of their
[claims]. Their attorneys got minimal fees; they negotiated
with the state over the fees.
MS. ERICKSON remarked that her concern is that they could never
have brought a suit against the state if they had thought they
would have had to pay. The state could drag it out for years.
She pointed out that it is the "small guy" [who is affected].
CHAIR ROKEBERG asked Ms. Erickson whether she understands the
frustration exhibited by many of the members over this. In
addition, he asked whether there is abuse of this.
MS. ERICKSON responded that she can see their frustration when
[the legislature] promotes resource development and someone
tries to stop it. She said she thinks in most cases people
bring [suits] because they truly believe they're right. She
stated:
You're throwing out the baby with the bath water.
You're saying, ... "OK, we're going to get rid of the
whole." And then what happens to the Dale Bondurants
and the Judy Ericksons ... who are fighting for
something? ... Pam [LaBolle] said that we should ...
get a group going. ... I'm a sole proprietor ... and I
don't have a lot of time to go soliciting to get
contributions so that I can sue the state.
Number 1649
REPRESENTATIVE COGHILL stated that if a well-funded group had
come [to Ms. Erickson] at the time when she was interested in
pursuing her interest, it would have given her a lot of
publicity. He said he thinks that is what [the legislature] is
struggling about - how to filter. If there were people in
Alaska who oppose getting information, they would only have the
voice of the system. He asked Ms. Erickson whether she sees
that as an unfairness.
MS. ERICKSON responded that she brought her case not knowing she
had public interest litigant status. She said she first sued
against the Hickel Administration, which opposed the status.
When the Knowles Administration came in, they continued the
case, but they backed down on the opposition. Most people bring
these cases not knowing if they are going to get the status or
not. She added that if she had been denied the status, she
would have had to reconsider the cost.
CHAIR ROKEBERG stated that he thinks the committee's interest is
in the legal factors.
REPRESENTATIVE BERKOWITZ asked which [factor]. He said he keeps
hearing about this great legal factor.
REPRESENTATIVE COGHILL responded that they have talked about
environmental communities.
REPRESENTATIVE BERKOWITZ stressed that he has to hear names,
because the environmental community is "this big nebulous
thing." He asked which environmental law firms are doing this.
CHAIR ROKEBERG offered Trustees for Alaska.
REPRESENTATIVE BERKOWITZ agreed that that is an Alaskan-based
organization.
CHAIR ROKEBERG offered Earth Justice.
REPRESENTATIVE BERKOWITZ indicated that Earth Justice is not an
Alaskan-based organization. Therefore, he said, there is one
case that [the environmental] community has had. He said he
hardly sees evidence of rampant Alaskan environmental
[lawsuits].
Number 1536
REPRESENTATIVE COGHILL remarked:
I think that if you look down through this list ... up
through 1993, ... the case could be made. ... And I
agree with ... Ms. Erickson - it's a tool that's being
used, and sometimes it's not being used the way I
personally would the public policy. Looking for the
court to use Rule 82 is a way that they could use some
discretionary powers.
REPRESENTATIVE OGAN stated that he supports the concept of what
the bill is trying to do, but doesn't want to eliminate the
Scott Ogans, Judy Ericksons, and Dale Bondurants, the "little
people" that this was designed for, to be able to sue and get
some coverage. He said he would like to work on this a little
more. He added that he doesn't think there are enough votes to
amend the court rules the way the bill is written.
Number 1390
MR. CHURCH responded that he believes Senator Donley would be
willing to work on the points that were raised. He said he
thinks part of it is addressed within subsection (b)(3),
subparagraph (K) of Rule 82. It says that the court can, in
awarding attorney fees, consider other equitable factors deemed
relative to the court.
MR. CHURCH said he thinks there is a lot of latitude given to
the court to look at situations in which an individual versus a
large corporation is bringing a public interest litigant case.
Almost exclusively, he pointed out, the testimony has been that
this will take away public interest litigant cases. He said he
wonders if that means people don't trust the courts to make
reasonable decisions in evaluating these cases.
MR. CHURCH clarified that the law establishes that Rule 82
applies to all cases, regardless of whether it is a public
interest litigant or a victim of a horrendous crime trying to
bring a civil suit against a perpetrator. This only gives the
courts a baseline to look at an attorney fee award, and it in no
way prevents the court from doing what it has done in the past:
award full attorney fees.
MR. CHURCH offered some history. When [PILD] was established in
1974, the court said the exception to Rule 82 was designed to
encourage plaintiffs to bring issues of public interest before
the courts. There was no differentiation between individuals
like [Ms. Erickson] and any large organization. Later, in the
Anchorage v. McCabe opinion in 1977, Chief Justice Boochever
submitted an opinion in opposition. His comments were:
The opinion [regarding the Gilbert v. State on the
encouragement issue] seems to take the position that
such litigation should be actively encouraged. In my
view, our function is not to encourage litigation of
any sort.
On the other hand I believe that we should strive to
prevent our courts from becoming inaccessible as a
practical matter to those who seek to vindicate rights
shared by the public.
MR. CHURCH explained that the chief justice at that time was
looking for a balance in the cases. At the same time, a
plaintiff shouldn't be encouraged to bring a case because of any
perceived award. Certainly, he said, in this cases the only
monetary award is to the attorneys.
Number 1151
MR. CHURCH stated that this would still allow the courts to
disregard apportionment as in the Dansereau case. In that case,
they were public interest litigants who only prevailed on one of
three issues. The lower court apportioned the attorney fees,
but the supreme court, on an appeal, awarded full attorney fees
and said the lower court did not have the right to apportion
fees.
CHAIR ROKEBERG asked Mr. Church whether he had looked at the
federal Equal Access to Justice Act.
MR. CHURCH answered that he hadn't. The only thing he'd
researched was what goes on in other states. Essentially, the
other 49 states don't make a differentiation as to public
interest litigants. They award attorney fees based on a set
percentage or a set dollar value per hour.
CHAIR ROKEBERG asked whether [other states] recognize [PILD].
MR. CHURCH responded that they don't specifically. For example,
cases that he reviewed on the West Coast do not.
REPRESENTATIVE BERKOWITZ clarified that the antecedents of
public interest litigants is known in common law as qui tan
suits. In other states, they are also known as private attorney
general suits. This is not a uniquely Alaskan feature.
Number 0991
REPRESENTATIVE OGAN stated that he had talked with Gerald
Luckhaupt [drafting attorney of Legislative Legal and Research
Services], who said, "Alaska is the only state when you lose,
you pay attorneys' fees." He asked Mr. Church whether that is
correct.
MR. CHURCH answered that he has also heard that statement.
REPRESENTATIVE OGAN remarked that people who are interested in
suing are afraid because of that, which is already a
disincentive to litigate. This public interest law basically
exempts them from that provision.
MR. CHURCH stated that when the state loses or wins a public
interest litigant case, it pays the attorney fees.
CHAIR ROKEBERG stated that in the bill packet there is a list of
at least 70 public interest litigant cases. He asked Mr. Church
whether his office broke those down to see who they were by
parties, and what type of representation they had.
MR. CHURCH responded that he has the information that the list
was based on, which provides the case name and a description of
the case; however, it does not give who the representing
attorney was.
Number 0860
REPRESENTATIVE BERKOWITZ pointed out that there were 70 cases in
the past ten years; the high year was 1995, with twenty [cases],
and the low year was last year, with three. He said it hardly
seems a rampant problem.
CHAIR ROKEBERG responded that the committee takes up a lot of
issues that only affect a small number of people. They try to
avoid the constitutional constraints about special-interest
legislation, but many times try to "cure the evils" that may
befall a small number of people.
REPRESENTATIVE BERKOWITZ remarked that he is trying to prevent
the committee from creating a huge injustice. He said, "Let's
move the bill and kill it."
CHAIR ROKEBERG stated that he would like to first see what
research has been done, and that Representative Ogan has already
agreed to work on the bill.
REPRESENTATIVE BERKOWITZ and CHAIR ROKEBERG spoke
simultaneously: Representative Berkowitz moved to report SB 183
out of committee, while Chair Rokeberg announced that he would
recess the meeting. [No action was taken on the motion. SB 183
was held over.]
ADJOURNMENT
Number 0788
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:48 p.m.
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