02/22/2000 09:02 AM Senate FIN

SENATE BILL NO. 123                                                                                                             
"An Act relating to public interest litigants and to                                                                            
attorney fees; and amending Rule 82, Alaska Rules of                                                                            
Civil Procedure."                                                                                                               
                                                                                                                                
                                                                                                                                
Co-Chair Torgerson noted that Version 1-LS0636\I had been                                                                       
previously adopted and was held over in order to                                                                                
incorporate Amendment number two.                                                                                               
                                                                                                                                
Amendment # 2: This amendment would add a new paragraph to                                                                      
the Alaska Rules of Civil Procedure to read:                                                                                    
                                                                                                                                
(5) If the court chooses to vary an award of                                                                                    
attorney's fees under (b)(3) of this rule by                                                                                    
increasing the award beyond the amounts provided in                                                                             
(b)(1) or (2) of this rule, then the court shall                                                                                
apportion the attorney's fees by issue and may only                                                                             
award the increased fees for an issue the party                                                                                 
prevailed upon unless the court finds exceptional                                                                               
circumstances to be present that require an increased                                                                           
award of fees without apportionment by issue.                                                                                   
                                                                                                                                
Senator Donley made a motion to MOVE Amendment # 2.  Co-                                                                        
Chair Torgerson noted an objection by Co-Chair Parnell.                                                                         
                                                                                                                                
Senator Donley said that this amendment was an effort to                                                                        
compromise and to capture the best of the proposals before                                                                      
the Committee, which were discussed previously.  He noted                                                                       
that this amendment would preserve Co-Chair Parnell's                                                                           
proposal regarding public interest litigants being treated                                                                      
the same as civil litigants under Rule 82, but it would go                                                                      
one step further.  He added that if the court made a                                                                            
decision to award an amount of attorney's fees in excess of                                                                     
what is allowed under Rule 82, then this amendment would                                                                        
instruct the court to apportion attorney's fees by issue.                                                                       
He continued that this amendment would still allow the                                                                          
court not to apportion by issue if exceptional                                                                                  
circumstances are found, not requiring a mandate for such a                                                                     
determination.                                                                                                                  
                                                                                                                                
Senator Adams noted that he was trying to understand the                                                                        
intent of this amendment.  He used the Veneti case in the                                                                       
context of this amendment and he asked whether the type of                                                                      
payment would also need to be agreed upon before arguing                                                                        
the merits of a particular case.                                                                                                
                                                                                                                                
Senator Donley responded that the Veneti case was a federal                                                                     
one, without the jurisdiction of Rule 82.  He continued                                                                         
that if this case had come under state jurisdiction, the                                                                        
amendment would be consistent with what the court decided                                                                       
in this instance.  He added that the court tried to                                                                             
apportion as best it could for the proportional costs of                                                                        
the case.                                                                                                                       
                                                                                                                                
Co-Chair Parnell stated that Senator Donley met his                                                                             
objection by providing for public interest litigants                                                                            
enhanced attorney's fees.  He also noted how this amendment                                                                     
made the playing field level for both public interest                                                                           
litigants and civil litigants.                                                                                                  
                                                                                                                                
Senator Adams asked if reference to both public interest                                                                        
litigants and civil litigants should be provided for in the                                                                     
bill title.                                                                                                                     
                                                                                                                                
Co-Chair Parnell responded that he did not think so, since                                                                      
the title of the act was broad enough to include both types                                                                     
of litigants.                                                                                                                   
                                                                                                                                
Senator Adams noted that he had no objection to this                                                                            
amendment.                                                                                                                      
                                                                                                                                
Co-Chair Torgerson hearing no objection to Amendment # 2,                                                                       
ADOPTED the same.                                                                                                               
                                                                                                                                
Senator Donley made a motion to move SB 123; Version 1-                                                                         
LS0636\I as amended from Committee with individual                                                                              
recommendations and attached zero fiscal note from the                                                                          
Alaska Court System.  Hearing no objection SB 123 was MOVED                                                                     
FROM COMMITTEE.