Legislature(2003 - 2004)
05/05/2004 08:24 AM Senate JUD
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* first hearing in first committee of referral
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= 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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