Legislature(2003 - 2004)
04/07/2003 03:31 PM Senate RES
| Audio | Topic |
|---|
* 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
VICE-CHAIR WAGONER told members that a committee substitute (CS)
for SB 97, labeled Version D, had been prepared that is no
longer specific to natural resource related litigation. He said
he plans to move this bill to the Senate Judiciary Committee and
asked participants to limit their testimony to 2 or 3 minutes.
SENATOR SEEKINS moved to adopt Version D of SB 97 as the working
document of the committee.
SENATOR ELTON objected for the purpose of hearing public
testimony.
VICE-CHAIR WAGONER took public testimony.
MR. AL SUNDQUIST spoke in opposition to SB 97. He told members
that laws of questionable constitutionality must be challenged
in the public interest. Public interest litigation provides the
most effective way to defend Alaskan's constitutional rights
against encroachments by state or local governments. SB 97 would
jeopardize the ability of individuals to hold legislators
accountable for misjudgments or misconduct. He asked committee
members to reject SB 97.
MS. JANEL WRIGHT, legal director for the Disability Law Center,
stated opposition to SB 97 for the following reasons. The public
interest litigant rule protects the public's ability to
challenge state decisions on matters of broad public interest
without the financial hardship of paying the state's attorney
fees if that litigation is unsuccessful. SB 97 eliminates this
protection by prohibiting courts from taking into consideration
the public interest nature of a case when the court determines
whether to award attorney's fees to the prevailing party. A very
important component of the Disability Law Center's ability to
advocate on behalf of Alaskans with disabilities is judicious
pursuit of state court remedies. Eliminating public interest
litigant status will effectively eliminate the opportunity of
individuals with disabilities to access the judicial branch of
their government to enforce their rights.
MS. WRIGHT pointed out that individuals with disabilities have
the highest unemployment rate nationwide and, as a group, have
the highest number living in poverty. If faced with the prospect
of liability for the defense attorney's fees, individuals with
disabilities will be unable to protect their rights in the
court. The public interest litigant exception does not foster
frivolous lawsuits. The Alaska Supreme Court has clearly stated
that anyone bringing a frivolous lawsuit exposes both the
attorney and the client to defense attorney's fees.
MS. JUNE PINNELL-STEPHENS stated opposition to SB 97 because
when the government makes a mistake, an individual should not
have to pony up the money to go to court to have it corrected.
Only by gathering together as organizations can most individuals
hope to take on that sort of action.
MR. CRAIG TILLERY, Assistant Attorney General, Department of Law
(DOL), offered to answer questions.
SENATOR DYSON asked Mr. Tillery to explain the changes in
Version D and how those changes will clarify that the bill no
longer pertains only to resource related litigation.
MR. TILLERY told members that Version D is substantially
different from the original bill. The original version was
focused on particular decisions by particular agencies. Version
D takes a different approach and completely abrogates public
interest litigant fees except in those instances where the
legislature may choose to amend by statute. For example,
currently, full attorneys fees are provided by statute for
consumer protection cases.
SENATOR DYSON said his impression is that this bill is aimed at
stopping frivolous lawsuits that impede resource development
through the use of court injunctions. If those lawsuits are
filed for illegitimate reasons, the plaintiff would pay the cost
of the litigation. He asked if Version D broadens the scope to
the extent it will have a dampening effect on someone in the
disability community who challenges a government action for
valid reasons but loses the case.
MR. TILLERY told members the original bill was broadened because
of concern about an equal protection challenge. DOL felt the
original bill would pass constitutional muster, however the
argument would be more difficult than if the scope of the bill
was broadened. In addition, the original version of the bill
started "writing in what is excepted and it becomes very
difficult to apply."
Regarding the effect on an individual bringing a disability
lawsuit in the public interest, MR. TILLERY said Version D would
require the individual to decide the likelihood of prevailing on
the merits of the case before filing. If the legislature
believes people should be able to bring a specific type of
lawsuit, the legislature could make that judgment by making
exceptions in statute. This bill puts that decision squarely
back in the hands of the legislature by eliminating the court
system's broad-brush approach.
VICE-CHAIR WAGONER announced that Senator Ben Stevens was
present.
SENATOR SEEKINS asked how many states have adopted a rule
similar to Rule 82.
MR. TILLERY said that very few, if any, have a similar rule. He
said the federal system does not have one either. The U.S.
Supreme Court stated it is not the province of the court system
to make those judgments; public interest litigant status should
be determined by a congressional or legislative decision.
MR. TILLERY said some other state legislatures might grant
attorneys' fees in specific instances, for example for consumer
protection or anti-trust cases. Nevertheless, as a general rule,
those decisions are not in the court's purview.
SENATOR SEEKINS asked if the legislature passes this bill as it
exists today [Version D], it could exempt certain types of cases
through another piece of legislation.
MR. TILLERY said that is correct.
SENATOR ELTON said during the subcommittee discussion, his
understanding was that no court rule would have to be eliminated
because public interest litigant status is an exception to a
court rule. However, he learned that a 1993 Supreme Court Order,
No. 11-18, established a court rule that will be abrogated by
this legislation.
MR. TILLERY said it is DOL's view that the court created that
rule through judicial exception. To remove the court's ability
to apply that exception via this legislation would not abrogate
a court rule but simply require the court to apply the original
rule.
SENATOR ELTON asked Mr. Tillery if he is familiar with the 1993
Supreme Court Order No. 11-18.
MR. TILLERY said he did not have a copy of it.
SENATOR ELTON said it would be helpful to understand why an
exception is not a de facto court rule.
MR. TILLERY offered to get back to Senator Elton with an answer
to that question.
SENATOR LINCOLN asked the amount of general fund dollars spent
in 2002 on public interest litigation.
MR. TILLERY said from FY 93 through FY 03, the state spent $4.5
million.
SENATOR LINCOLN asked how much of the $4.5 million was spent on
state resource agency cases.
MR. TILLERY said he would have to get back to Senator Lincoln
with an answer to that question.
3:50 p.m.
MR. KEN JACOBUS, an attorney in private practice and for the
Republican Party, said his comments to the committee were on his
own behalf. He said he had no problem with the original bill
because it was designed to address a specific area of concern to
the Governor: protection of natural resources and economic
development. Although he prefers other solutions, he could
support the original bill. However, he is opposed to broadening
the bill to include all public interest litigant cases. He
reminded members that when the government loses a public
interest litigant case, there is nothing wrong with requiring
the government to compensate for its wrongdoing. He pointed out
that a number of Republicans would not be in the legislature
were it not for the redistricting case, which was public
interest litigation. Also, a number of legislators could not
have collected campaign contributions but for the Singleton
case, which allowed unlimited soft money contributions, again,
public interest litigation. He said if a voter wants to
challenge an election for a good reason, this bill would require
the individual voter to pay attorney's fees to the state if he
or she loses the case. He doubts anyone would have challenged
the Lindauer candidacy if that were the case.
MR. JACOBUS said he disagrees with Mr. Tillery's statement that
Alaska Civil Rule 82 has a catch-all provision that says the
courts may vary attorney's fees if the equities of the case so
direct. The court can take any factor into account to determine
the inequities of the case. If the court is no longer able to
consider certain factors, that is the limitation on the catch-
all provision of Rule 82. He advised that he has no problem with
the legislature protecting natural resource cases. However, to
take away the rights of public interest litigation across the
board is inappropriate because of the numerous unintended
consequences. He asked members not to enact the committee
substitute [Version D].
SENATOR ELTON noted the purpose section of Version D cites
increased litigation, arguments made with little merit,
difficulties in compromising claims, and significant cost to the
state and private citizens as reasons to eliminate public
interest litigant status. He said when he read that, his
immediate thought was that it may save the state money, but it
creates a difficult standard for Alaskan citizens to meet. He
asked Mr. Jacobus if that is the focus of his testimony.
MR. JACOBUS said some of the statements in the purpose section
are not really true. A person is unlikely to bring an argument
with little merit because if one loses a public interest case,
he or she does not get reimbursed for attorney's fees. He agrees
that the public interest litigant doctrine leads to increased
litigation, but it does not encourage frivolous litigation. He
said it does not increase difficulty in compromising claims and,
although it may cost the state more money, that cost is for
wrongs that need to be redressed.
SENATOR ELTON maintained his objection to adopting Version D as
the working draft before the committee. He said he has concerns
with the original bill, but those problems are magnified in the
committee substitute. He felt Mr. Jacobus's testimony was
compelling. He stated his belief that the only way many Alaska
citizens feel able to challenge an overreaching state
bureaucracy is through this rule.
SENATOR BEN STEVENS asked how many of the testifiers are public
interest litigant attorneys. He questioned whether the
testifiers today are attorneys whose fees are paid by public
interest litigants.
SENATOR DYSON indicated he takes significant exception to
Senator Stevens' statement if it was an indictment of Mr.
Jacobus's testimony or integrity.
SENATOR BEN STEVENS said he was just making the point that the
committee needs to take that into consideration.
VICE-CHAIR WAGONER announced a brief at-ease.
SENATOR SEEKINS withdrew his motion to adopt Version D as the
working draft before the committee. He then moved to pass SB 97
from committee with individual recommendations.
SENATOR ELTON objected.
SENATOR LINCOLN told members she will be voting against the
motion. She said the cost of most of the cases has been small so
for the legislature to tell Alaskans they have to give much
thought to paying their own attorney fees for a public interest
case is wrong. She noted she just received a letter from the
Alaska Village Council Presidents who said they were involved in
three public interest litigant cases, the Kasillie (ph) case and
challenges to state agency decisions about fish and wildlife
management. They are very concerned this legislation will deter
the common person from filing a lawsuit against a state agency
thereby allowing some bad public decisions to be made.
VICE-CHAIR WAGONER said he would be supporting the bill because
he has seen, at times, the unfairness of the public interest
litigant doctrine.
The motion to move SB 97 from committee carried with Senators
Seekins, Dyson, Stevens and Wagoner in favor, and Senators Elton
and Lincoln opposed.
VICE-CHAIR WAGONER announced the bill would move to the Senate
Judiciary Committee with its appropriate fiscal notes.
| Document Name | Date/Time | Subjects |
|---|