Legislature(2003 - 2004)
05/18/2003 10:10 AM Senate JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
CSHB 145(FIN)-ATTY FEES/ BOND: PUBLIC INTEREST LITIGANT
CHAIR SEEKINS announced CSHB 145(FIN) to be up for
consideration.
MR. CRAIG TILLERY, Assistant Attorney General, said the bill is
intended to prohibit discrimination in the award of attorneys'
fees by preventing the allowance of specific favoritism to
public interest litigants. It provides that in an action or
appeal, a court may not discriminate in the awarding of
attorneys' fees if the action or appeal is based on the nature
of the policy or the interest advocated by the party or on the
persons affected by the outcome of the case or the governmental
entity [indisc]. Those are the four factors the Supreme Court
listed as supporting the public interest litigant status.
In calculating the award that may be granted to the public
interest litigant on the constitutional case, the court shall
include in the award only those parts of the case that were
devoted to the constitutional issues and upon which it
prevailed. The court can only make the award if the claimant did
not have sufficient economic incentive to bring the lawsuit.
Finally, the court in its discretion can abate an award if it
finds substantial and undue hardship is put upon the party
ordered to pay the fees or costs.
He said that Section 3 of the bill would prevent a court from
using those public interest litigant factors in determining
whether to require or in allowing a party to be excused from
paying a bond.
SENATOR THERRIAULT asked for an example of having sufficient
economic reason for bringing a case.
MR. TILLERY replied that in order to have that sort of status,
you cannot have economic incentive to bring the action.
MR. BENJAMIN BROWN, Alaska State Chamber of Commerce, supported
HB 145 in its current version and explained:
...This bill looks at the nature of the claim and it
says what are the most important claims that someone
ought to be able to bring, regardless of his or her
financial circumstances - in what has been called the
public interest - and the bill makes the determination
that it's constitutional claims that deserve that
special status....
MR. BROWN highlighted a three-page document, Order on Emergency
Relief, written by one of the single justices of the Alaska
Supreme Court that explains why section 3 does not excuse a
litigant from posting a bond to get things like temporary
restraining orders. He also noted that while there had been
discussion about putting (c) into Chapter 68 of Title 9, because
prior sections of the chapter were adopted with court rule
changes, he did not see language in (c) violating any existing
rules and, therefore, didn't think it was necessary to put this
language into the statute.
SENATOR OGAN asked if the intent language on page 2, lines 1 -
9, had the effect of being retroactive.
MR. BROWN replied no. The applicability of this legislation is
covered under Section (4) on page 3 and it applies to all civil
actions and appeals filed on or after the effective date, which
is immediate. The effect of the language on page 2, expressly
overruling decisions of the Alaska Supreme Court and the cases
listed, is not going to have a retroactive affect and will not
affect other holdings in those cases beyond the public interest
doctrines. The drafters wanted to make sure that only public
interest elements were captured in overruling the doctrine.
TAPE 03-53, SIDE B
SENATOR OGAN asked a question as the tape was changing and Mr.
Brown responded that the public interest doctrine is not
codified and not part of the Rules of Civil Procedure.
MR. BOB BRIGGS, attorney with the Disability Law Center, urged
them to reconsider the wisdom of CSHB 145(FIN), because it
expands the abrogation of the public interest litigant doctrine
to all statutory and all common law claims. Testimony from
Laurie Hugonin, Alaska Network on Domestic Violence and Sexual
Abuse, in the previous Legislature regarding SB 183 pointed out
that her organization sued the Alaska court system because it
was not implementing a statute the Legislature had passed. She
pointed out that if it were not for the public interest litigant
doctrine, she didn't think she could have brought that lawsuit.
He suggested that there might be a much broader impact than the
original focus of HB 145 and there really isn't a legislative
record that would support that broad abrogation of the doctrine.
He pointed out that they only heard from people who said the
public interest litigant doctrine had affected resource
development in this state, but not from anyone complaining about
the affect it had on enforcement of our civil rights statutes
and our election or redistricting laws.
The reason the public interest litigant doctrine
treats people differently is to level the playing
field and HB 145, therefore, reskews an unlevel
playing field. HB 145 fails to identify the fact that
it makes a court rule change...The court may make and
promulgate rules of procedure by any means that
effects a public pronouncement of the rule of
procedure.... I didn't find an Alaska case on this
point, but I did find a New York case on this
point...but promulgate means to publicly pronounce or
to disseminate...so a rule can be disseminated in any
number of ways. The Alaska Supreme Court has espoused
the public interest litigant doctrine in three ways:
first; by publishing it as a notation to a codified
rule; secondly, by including it as a specific
paragraph in a Supreme Court order, Supreme Court
Order 11.18 (am); and, as part of a published series
of judicial decisions.
So, I suggest that the public interest litigant
doctrine is a rule of procedure that courts are
required to apply in making their decisions about the
allocation of attorney's and costs and in litigation
to which it applies. And, therefore, in changing the
doctrine, you should identify in the title of the bill
that you are abrogating the doctrine. To be legally
effective, it should be adopted by two-thirds majority
of both houses.
The rule, if amended as I suggested, is the doctrine,
itself, as well as Civil Rule 82. Civil Rule 62 in
this new version is affected by this bill and
modified; the same is true for Appellate Rule 508,
Appellate Rules 204 and Appellate Rule 602.
MR. BRIGGS said that those rules all relate to the procedure by
which courts go about issuing stays on appeals. He concluded by
urging the committee to vote no on HB 145, but added that the
Disability Law Center took no position on the much narrower
House Judiciary version of the bill.
SENATOR FRENCH arrived at 7:19 p.m.
SENATOR OGAN said he also preferred a much narrower bill focused
on resource issues as public interest litigant status has
stymied efforts to develop our resources, which is in Alaska's
best interest.
SENATOR THERRIAULT commented that the only court case he has
heard of on redistricting was brought on constitutional grounds
and that was covered in HB 145. He asked if he was missing
something.
MR. BRIGGS replied that he would have to get back to him on
redistricting cases and what cases have been granted public
interest status and whether they have been statutory or
constitutional.
But, ...no lawyer worth their salt would file a public
interest type case without throwing in some
constitutional claims. On the other side of the coin,
what you're forestalling is the kind of case, like the
domestic violence case I mentioned, where there's a
clear statute and somebody is failing to implement
it.... We know at least for the next four years
there's going to be a large alignment between the
majority of this body and the governor, but no one can
say what's going to happen after that. It's possible
to conceive of a case where a statute you folks pass
is not being enforced by the executive branch and then
a public interest litigant would want to come in as a
private attorney general. And most of the times the
court has talked about it, [it] said this is to
encourage citizens to act as private attorneys
general.
SENATOR OGAN said he felt his point was valid and that this
raises the level of diligence the Legislature must exercise to
keep the other branch in check.
CHAIR SEEKINS asked Mr. Briggs if he found anything close to the
provisions of Rule 82 in any other state.
MR. BRIGGS replied he hadn't, but he hadn't researched it. He
felt that was an approach that would upset the tort branch of
the bar association. Another approach would be to abrogate Rule
82 so that everyone is not dealing with the fee-shifting rule.
CHAIR SEEKINS asked if they weren't just putting public interest
litigants in Alaska on the same level they would be on in any
other state.
MR. BRIGGS replied that is true.
SENATOR FRENCH said one category of claims they would be
disrupting unintentionally is folks who bring a public interest
litigation to enforce zoning laws.
Sometimes you have to bring a suit against the city to
enforce its own laws to run prostitutes off, to clean
up drug houses, to haul off old junk cars and that
doesn't strike me as being a constitutional claim.
It's simply a matter of municipal ordinance. So,
before we pass this out in a big hurry, we should take
a look at the possibility that we're interfering with
the rights of citizens to live in clean and decent
neighborhoods....
SENATOR THERRIAULT motioned to pass CSHB 145(FIN) from committee
with individual recommendations and accompanying fiscal notes.
Senators French and Ellis objected and Chair Seekins called for
a roll call vote.
SENATORS French and Ellis voted nay; Senators Therriault, Ogan
and Seekins voted yea; and CSHB 145(FIN) passed from committee.
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