Legislature(1999 - 2000)
04/09/1999 01:48 PM Senate JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE
April 9, 1999
1:48 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Rick Halford, Vice-Chairman
Senator Dave Donley
MEMBERS ABSENT
Senator John Torgerson
Senator Johnny Ellis
COMMITTEE CALENDAR
HOUSE BILL NO. 9
"An Act relating to collection of settlement information in civil
litigation; amending Rule 41(a)(3), Alaska Rules of Civil
Procedure, and Rule 511(e), Alaska Rules of Appellate Procedure;
and providing for an effective date."
-MOVED HB 9 OUT OF COMMITTEE
SENATE BILL NO. 123
"An Act relating to public interest litigants and to attorney fees;
and amending Rule 82, Alaska Rules of Civil Procedure."
-MOVED SB 123 OUT OF COMMITTEE
PREVIOUS SENATE COMMITTEE ACTION
HB 9 - No previous action to report.
SB 123 - No previous action to report.
WITNESS REGISTER
Representative Brian Porter
State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Presented HB 9
Ms. Lauree Hugonin, Executive Director
Alaska Network on Domestic Violence and Sexual Assault
130 Seward St. room 209
Juneau, AK 99801
POSITION STATEMENT: Commented on SB 123
Ms. Pam LaBolle, President
Alaska State Chamber of Commerce
217 2nd St.
Juneau, AK 99801
POSITION STATEMENT: Supported SB 123
Mr. Steve Williams, Attorney
500 L St. Suite 400
Anchorage, AK 99501
POSITION STATEMENT: Opposed SB 123
Ms. Charlotte MacCay
COMINCO
1133 W. 15th Ave.
Anchorage, AK 99501
POSITION STATEMENT: Supported SB 123
Ms. Judy Erickson, Owner
Capital Information Group
PO Box 21804
Juneau, AK 99802
POSITION STATEMENT: Opposed SB 123
ACTION NARRATIVE
TAPE 99-25, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 1:48 p.m. and announced HB 9 would be the fist order of
business.
HB 9-PERSONS REQUIRED TO FILE SETTLEMENT INFO
REPRESENTATIVE BRIAN PORTER, sponsor of HB 9, explained the bill
enacts some cleanups related to tort legislation that has become
law. REPRESENTATIVE PORTER said the bill specifically addresses
reporting of settlement results. HB 9 does the following things: it
makes clear that reporting of settlement information is mandatory,
it excludes areas not meant to be included, it clarifies that
reporting requirements take effect after the appeal process is
concluded, it amends the necessary court rules, and sets an
effective date.
Number 040
CHAIRMAN TAYLOR asked how the current reporting system is working.
REPRESENTATIVE PORTER said the current system seems to be working
for adjudicated cases, but reporting for settled cases appears to
be a problem. CHAIRMAN TAYLOR commented this reporting requirement
is one aspect of the tort reform legislation he strongly supported,
as there is a serious need to compile information about these types
of cases.
Number 067
SENATOR DONLEY stated his support for the bill and asked how
existing law deals with confidential settlements. REPRESENTATIVE
PORTER answered the settlement information is still gathered, but
the names of the litigants are excluded. SENATOR DONLEY confirmed
that the Alaska Judicial Council (AJC) would receive the settlement
information, even if the names were excluded. REPRESENTATIVE PORTER
assured the information would be transmitted to the AJC, and in
fact, the Council would get the names, the names would simply not
be made public.
CHAIRMAN TAYLOR said the release of confidential information was a
concern of his. He stated that he thought the original bill dealt
with the treatment of confidential information by the AJC.
Number 113
SENATOR DONLEY stated one of his concerns is prohibiting secret
settlements in cases of public safety issues. He knows some
settlements of product liability cases involve plaintiffs agreeing
not to inform others of the hazard on which their claim is based.
SENATOR HALFORD asked what could be done for an individual facing
"a Ford motor Company sized defendant" who could get a settlement
only if they do not release the information. He said this puts the
burden on "the victim who has very little resources" for the trial
and the appeal(s), and "we pay for none of it." SENATOR DONLEY
agreed that was true, but said "none of that affects this bill."
Committee members agreed.
Number 138
SENATOR DONLEY moved HB 9 from committee with individual
recommendations. Without objection, HB 9 moved from committee with
individual recommendations.
SB 123-PUBLIC INTEREST LITIGANT: FEES
SENATOR DONLEY declared SB 123 is actually a Senate Finance bill
and stated he is the designated committee member presenting it. He
pointed out the committee has received letters of support for the
bill from the Ketchikan Gateway Borough (KGB) and the Alaska Miners
Association (AMA).
SENATOR DONLEY said the bill implements court rule 82 for public
interest litigants. SENATOR DONLEY explained that up until a few
years ago, courts used to apportion judgements, now they simply
award all legal fees whether a litigant prevails on all claims or
only some of them. SENATOR DONLEY said this promotes spurious
lawsuits, since plaintiffs know they will receive compensation for
all cost even if they win on only one of their points. He said the
adoption of rule 82 provides reasonable fees for litigants and
limits payment to costs associated with points on which the
litigant prevails.
SENATOR DONLEY said the letter of support from the KGB raises a
good point: many of these organizations bringing litigation have
staff attorneys. These attorneys are likely paid salaries
equivalent to $30 - $40 per hour. Sometimes, litigants charge fees
for the services of these attorneys as high as $150 an hour, and
actually make a profit on the fees awarded. SENATOR DONLEY
commented, "That's just wrong." He concluded SB 123 adopts the same
rule used for other civil cases, it will prevent an inequity and
also save the state some money.
Number 194
MR. STEVE WILLIAMS, an Anchorage attorney, spoke against SB 123.
MR. WILLIAMS explained the purpose of paying attorneys' fees for a
public interest litigant is to encourage private citizens to raise
awareness of issues of public interest such as unlawful or
unconstitutional conduct by a government entity. MR. WILLIAMS said
in this manner the public acts as "private attorneys general to
vindicate the public interest and the rule of law."
MR. WILLIAMS said SB 123 would affect only those cases where a
public interest litigant prevails in a suit against an executive,
administrative, or legislative action by a state or local
government. He said SB 123 would drastically reduce the incentive
to bring cases against officials who are acting illegally or
unconstitutionally, and this is simply bad policy.
MR. WILLIAMS suggested the committee review the history of public
interest litigation in Alaska. He said public interest litigation
has been used in a nonpartisan manner to benefit a broad range of
Alaskans' political beliefs.
MR. WILLIAMS said public interest litigation covers issues such as
state elections, ballot initiatives, municipal taxes and more.
These are the types of cases in which claims are, and should be,
brought by public interest litigants, according to MR. WILLIAMS.
MR. WILLIAMS argued that in these cases, public interest litigants
should be awarded full attorneys' fees if they prevail and be
protected from an award of fees if they do not prevail. Public
interest litigants by their very nature do not have an economic
interest at stake; they do not have sufficient financial incentive
in to bring the case individually.
MR. WILLIAMS mentioned that, aside from the fact the bill is bad
public policy, regular rule 82 fees do not require apportionment by
issue, as this bill would require. This is because the court has
practical reasons for not deciding certain issues within a given
case. MR. WILLIAMS said private attorneys are paid to litigate all
aspects of a case, and public interest litigants should also be
paid for arguing all aspects of a case. He maintained that the
court has the power to eliminate or reduce frivolous or excessive
fees, or to impose fees on a litigant bringing a frivolous case.
MR. WILLIAMS reminded the attorneys on the committee that civil
rule 11 prohibits frivolous claims and fines can be imposed on
attorneys who assert them.
Number 297
MR. WILLIAMS summed up his testimony as follows: SB 123 is
unnecessary because of civil rule 11, it is bad public policy that
is politically misguided, and it will lead to further litigation of
this issue.
CHAIRMAN TAYLOR asked MR. WILLIAMS if he is familiar with the
origin of public interest litigation. MR. WILLIAMS replied the
original case was GILBERT v. STATE OF ALASKA, in which a state
senatorial candidate challenged residency requirements
unsuccessfully. In this case, the court found that public interest
litigants should not be held responsible for attorneys' fees.
Number 350
CHAIRMAN TAYLOR said he was trying to remember if Alaska presaged
the federal court in their ruling on public interest litigation.
MR. WILLIAMS responded he did not believe the U.S. Supreme Court
ever adopted a public interest litigant rule for attorneys' fees.
In fact, Alaska is the only state that has a general rule which
provides for awards of attorneys' fees to prevailing parties.
CHAIRMAN TAYLOR said, "I believe there were decisions made at the
federal level which initiated this entire process." He said his
frustration is with the federal system that awards special interest
groups for frivolous motions filed in order to delay resource
development. Whatever the outcome of the suit, the federal
government pays the attorneys' fees. Five years ago, the U.S.
Forest Service spent more than forty million dollars on cases in
which they prevailed. CHAIRMAN TAYLOR said this is an incentive to
bring frivolous claims, and when litigants have to pay fees, the
court will not see so much frivolous litigation. MR. WILLIAMS
agreed that fines should be charged for frivolous cases filed; but,
he said, the court can already do this. Under the Alaska Public
Interest law, litigants are only paid when they prevail. CHAIRMAN
TAYLOR maintained that he has not seen the court come down hard
enough on spurious claims.
Number 430
MR. WILLIAMS suggested SB 123 only affects litigants who win,
reducing the fees they receive. Overall, MR. WILLIAMS believes this
bill will decrease opportunities for public interest litigation.
MR. WILLIAMS also observed that SB 123 will award prevailing public
interest litigants less than that awarded to successful commercial
litigants in civil cases.
MS. CHARLOTTE MACCAY, representing COMINCO Alaska, stated her
support for SB 123. She said that the permitting and developing
process, especially as it relates to environmental concerns, is
sometimes based more on fear of litigation than hard science. This
bill will force public interest litigants to carefully consider the
legitimacy of any case they seek to bring. She urged the committee
to pass SB 123.
Number 472
MS. LAUREE HOUGININ, Executive Director of the Alaska Network on
Domestic Violence and Sexual Assault (ANDVSA) spoke in opposition
to SB 123. MS. HOUGININ explained that ANDVSA was involved in a
public interest litigation suit and they prevailed. Though they did
their best to keep costs low and even did fund raising, in the end,
they received fees amounting to only two-thirds of the amount they
spent on the case. She said this bill will affect situations where
small public interest litigants will be burdened by receiving only
a thirty percent award for fees.
MS. PAM LABOLLE, President of the Alaska State Chamber of Commerce,
stated the Chamber supports SB 123, saying some special interest
groups routinely use "public interest litigant" status to challenge
state resource development.
Number 535
CHAIRMAN TAYLOR remarked that a group has no interest in settling
a case if they know they will be paid for all their costs and fees,
even if they prevail in only one-third of their claims. MS. LABOLLE
commented that sometimes the goal of these special interests is to
tie things up in litigation and "burn up as much money . . . as you
can possibly take from the opponent."
MS. JUDITH ERICKSON, owner of Capital Information Group (CIG),
opposed SB 123. MS. ERICKSON recounted her experience as a public
interest litigant who sued Governor Hickel for access to public
information. She prevailed on the majority of the case and was
awarded a portion of attorneys fees. She noted that Capital
Information Group had to petition for the status of public interest
litigant, this could have been argued by the state.
MS. ERICKSON said this bill will not only affect resource
development issues. As a "mom and pop" business, CIG could never
have brought this issue forward without public interest litigant
status.
Number 571
SENATOR HALFORD moved SB 123 from committee with individual
recommendations. Without objection, SB 123 moved from committee
with individual recommendations.
With no further business to come before the committee, CHAIRMAN
TAYLOR adjourned the meeting at 2:35.
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