Legislature(1999 - 2000)
04/05/2000 01:19 PM House JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 123 - ATTY FEES:APPORTIONMT/PUBLIC INT.LITIGANT Number 2146 CHAIRMAN KOTT announced that the final item of business would be CS FOR SENATE BILL NO. 123(FIN), "An Act relating to public interest litigants and to attorney fees; and amending Rule 82, Alaska Rules of Civil Procedure." He informed listeners that it was not his intent to move the bill that day, but several testifiers had been waiting on teleconference to testify. [Before the committee was CSSB 123(FIN).] Number 2166 DARWIN PETERSON, Staff to Senator Torgerson and the Senate Finance Committee, Alaska State Legislature, offered an abbreviated overview of the bill on behalf of the Senate Finance Committee, sponsor of the bill. He informed members that SB 123 would recognized public interest litigants by codifying them in Rule 82 [of the Alaska Rules of Civil Procedure]. It also would require the court to "apportion enhanced attorney's fees by prevailing issue." CHAIRMAN KOTT asked whether there were questions, then opened public testimony. Number 2275 JOSEPH CIZEK testified via teleconference from Anchorage. He informed members that he and his wife are being sued by two individuals, a husband and wife, who claim to be public interest litigants, having formed a nonprofit organization in which the husband is president and the wife is vice president. The Cizeks were threatened with this suit a year and a half ago, for more than $500,000 in damages plus attorney fees. The case now is being appealed. However, the attorney fees alone have bankrupted his small business as a general contractor. He and his wife are out at least $100,000 in attorney fees, and the plaintiffs are seeking approximately $150,000 in attorney fees. MR. CIZEK said he and his wife are forced to defend their position, based upon what the city has said on a grandfather rights issue relating to [a nonconforming] airstrip at the end of the Eagle River Valley. During this legal battle, they were informed from the start that there would be no hope of getting any attorney fees back, even if they prevailed, because of the [plaintiffs'] claim to be a public interest litigant group. "Something is not right here," he emphasized, noting that the college fund for his daughter is gone. TAPE 00-49, SIDE A REPRESENTATIVE MURKOWSKI asked whether the court has determined that the plaintiffs in that case are, in fact, public interest litigants. MR. CIZEK said no, that it is before the superior court at this time, and Judge Shortell has yet to make that ruling. REPRESENTATIVE MURKOWSKI noted that there are some pretty specific standards that must be met in order to be declared a public interest litigant, and, from Mr. Cizek's brief description, it sounds as if the plaintiffs aren't true public interest litigants, although she doesn't have the facts. MR. CIZEK said it appears that they will be granted that status. CHAIRMAN KOTT noted that Mr. Cizek is a constituent of his, and he has been directly involved in trying to settle that issue. Number 0226 WEV SHEA, Attorney at Law, testified via teleconference from Anchorage. He offered some personal background, noting that he has been involved in the legal profession since 1966 and has practiced law in Alaska since 1977, doing civil litigation almost solely. He also noted that he has done criminal prosecution in both Hawaii and Alaska, and was U.S. Attorney for the District of Alaska. He cautioned about not getting too tied up in emotion on this. There are very strict criteria for public interest litigant status, he told members, citing as an example an Alaska Supreme Court case involving Tim Cook (ph) that he himself had handled; in that case, Mr. Cook (ph) had been fired as a commissioner on the Alaska Public Utilities Commission (APUC) but eventually got his job back. Public interest litigant status was not granted. MR. SHEA noted that his position in that case was that because Mr. Cook (ph) was a public servant, he shouldn't have to pay all of his attorney fees, and should have been granted 100 percent of his attorney fees. That issue was ruled upon, on remand, by Judge Michalski, who accurately found, under the law - although Mr. Shea disagrees with it - that Tim Cook (ph) had a monetary interest in being on the commission because he was paid and therefore wasn't entitled to public interest litigant status. MR. SHEA said he is sure there is good reason to bring this legislation. However, he would address the problem with not having public interest litigation in voting contests and the right to vote; that was primarily what he himself was concerned with when he brought the first Dansereau case, which got an [Alaska] Supreme Court decision in 1995, and then the second Dansereau case, for attorney fees, on which he got an [Alaska] Supreme Court decision in 1998. Mr. Shea pointed out that in election contest cases, the litigants not only have to show that there is a violation of the law with regard to the election itself but also must show that there was a violation of the law which could have changed the results of the election. Suggesting Representative Green had spoken out on this, Mr. Shea mentioned breaking this out on various causes of action, then said he would point out the fallacy of that argument. MR. SHEA reported that in the 1994 election, Governor Knowles won by 536 votes; if 278 votes had gone the other way, or if it could have been shown that those voters could have been influenced to vote the other day, the election would have been a tie. With more votes than that, Jim Campbell would have won. Ten gallons of gasoline were given to everyone in the North Slope Borough who voted in that district, about 1,500 people. However, the farthest anybody went to vote in that borough was 12 miles, which he said was ridiculous, being paid to vote. However, the Alaska Supreme Court had ruled that there was not a valid state cause of action. Mr. Shea noted that he had alleged that [cause of action] because of having to choose between bringing the case in federal or state court, and he had believed it was a federal violation because [Congressman] Don Young was in the election. Mr. Shea said it is in the statute that if there is a state senator or representative running, then it is a federal election. However, the supreme court didn't look to that. So that is one cause of action that is "out" but which affected at least 1,500 votes. Number 0643 MR. SHEA continued. He noted that the supreme court did say that it was a violation of state law to mail a postcard to 7,000 to 8,000 voters that said "Vote for Tony Knowles - you have a chance to win $1,000"; that was done by Doyon Drilling (ph), Tanana Chiefs Conference and Fairbanks Native Association, and Mr. Shea said he had prevailed on that case. He indicated there was a third case, for irregularities in the North Slope voting process and not keeping the voting polls open. MR. SHEA expressed concern about the way this bill is written, and the way it affects voters' rights. He stated: I'll tell you, if I didn't bring that litigation, [Representative] Con Bunde never would have brought his bill, and you never would have passed the bill ... that Tony Knowles signed on June 22, 1996, changing the law. And the problem that I had was that Jim Campbell was scared to death to bring a litigation. He was really scared when I told him I'd already written a three-page letter to the FBI [Federal Bureau of Investigation] with regard to the federal violation. Well, the U.S. Attorney wouldn't touch it because he's [President] Bill Clinton's appointee. And in civil rights and voting rights violations, the FBI will not investigate the violations and pursue it unless the U.S. Attorney, prior to the investigation, said that he will prosecute the litigation. [Representative] Bunde refused to do that. Your attorney general, Bruce Botelho, wasn't going to take any action, and he didn't take any action; he fought all the way on two cases that I took to the supreme court. And what is the problem with the way the bill is written, as it affects voting rights, is that because Jim Campbell was scared to take the case because it ... was so controversial and somewhat confrontational, and the legislature sure wasn't jumping in and taking a stand at that time - none of you were, those of you that were there - was that I had to get ten citizens to step forward to be the plaintiffs. ... Under the statute, if the candidate won't do it - which Campbell wouldn't, naturally, because the wrongdoers had to do with the North Slope Borough, Tanana Chiefs, Fairbanks Native Association and Doyon, all of which he's done business or was continuing to do business with, in various corporations and other businesses he had - could I ever have asked, or would ten people ever have agreed, to take on litigation of that magnitude, if they knew they had a chance of being faced with attorney fees and costs against them? This was not some fly-by-night lawsuit that went up to the supreme court twice. This was a lawsuit that went up twice and we prevailed both times, and the public acted as the attorney general for the State of Alaska because the attorney general for the State of Alaska refused to act for the people. ... Everybody seems to jump on the fact that the second Dansereau case delineates the attorney fees and somehow indicates - and the Daily News indicated - that Wev Shea received $250,000, approximately, in attorney's fee. Let me break that down for you. ... I advanced out-of-pocket costs of approximately $25,000. I advanced fees in that case of approximately $225,000, which was 1,500 hours, approximately, at $150 an hour. The amount of time, that was me and one attorney that assisted me for about a hundred hours. The amount of time expended by the attorney general to fight that case: he had 14 attorneys that billed on the case, 4 or 5 paralegals, and they billed well in excess of what I bill, ... the number of hours. I find that very peculiar since in both cases I had the burden [and] ... had to carry both cases, since we lost both cases at the trial court level. I can't really tell you how to approach this, other than I think you're doing the state a real disservice if you change this law with regard to voting and public interest litigation, from that standpoint, when it comes to election contests. I really don't know who you're going to get to bring litigation that is this controversial, like these two Dansereau cases or the Tim Cook (ph) case, because I know when I called down, ... when Tim Cook (ph) was terminated, and talked and approached a number of legislators and a number of people in the leadership, they themselves were not going to challenge Governor Knowles' position. And that's why I did it. And if any of you think that Wev Shea took these cases to make money, I think you're sadly mistaken. I received, from the State of Alaska, after those two appeals, ... about $101,000, and I received it four years after I took the case. And I took the case, ladies and gentlemen, solely because I felt that the rights of the citizens of the State of Alaska were grossly being abuse. And I'll tell you, if I didn't do it, nobody was going to do it. ... I guess you can ... do what you want with the public interest litigation, and there's no question that there's problems. But I'd be very, very leery of it in the voting rights area, because what you're doing is, in this state, without an [elected] attorney general, you've got a clone for Tony Knowles sitting in the AG's [attorney general's] office. Number 1117 REPRESENTATIVE ROKEBERG stated his understanding that Mr. Shea had prevailed in one portion of the case. MR. SHEA affirmed that. REPRESENTATIVE ROKEBERG asked Mr. Shea what the end result of the case was. MR. SHEA responded that he had advanced so much money, and it was a year and a half after they had prevailed. Although there should have been a new election, he couldn't go in, right off the bat, and get an injunction because it was cost-prohibitive. These election contest suits take 100 percent of [an attorney's] time, all of the time. Basically, before the statute was changed, the supreme court came out with the first Dansereau decision, "and we prevailed." However, this decision came out in September of 1996, so Governor Knowles had been in office two years. Although the court basically said that approximately 7,000 to 8,000 votes were affected, at that stage Mr. Shea said he couldn't open it up and press forward for a new election. MR. SHEA commented, "Try advancing $225,000." Noting that new associates at law firms may be expected to bill 1,600 hours a year, he said he had essentially given away time for a year. He proposed the need to be sensitive and for somebody to be able to step in, in this state, the way the law is now, when the attorney general isn't willing to do so, especially regarding voting rights or when an issue is very controversial, because a whole section of legislators will have various conflicts. Mr. Shea added that when he had taken that litigation, he didn't know he would be awarded attorney fees because he had thought it was under Civil Rule 82; he was just thinking about the wrong that had been done, and he had seen clear violations, because of his familiarity with it, of state and federal election law. Because neither the federal nor state government was acting on it, he had stepped in. MR. SHEA said he wouldn't take a similar case now unless he knew he would be paid 100 percent of the attorney fees. Furthermore, in election contest litigation where somebody won't step forward, how could anyone ask ten voters to step forward and do it, when those people could be subject to actual costs and attorney fees? He said he couldn't address the situation in Eagle River [testified about earlier], but setting up a nonprofit organization has nothing to do with being a public interest litigant. Number 1393 ROBIN SMITH testified via teleconference from Anchorage as follows: A fundamental tenet ... of the American democratic system is that the executive and legislative branches of government must act lawfully and constitutionally, subject to review and restraint by an independent judiciary. This bill, I believe, would support government [tyranny] by stripping the common citizens' right to challenge the state. We need to be realists. It takes a lot of money to bring a suit against the state. And this bill would limit all but the rich ... in coming forward ... to sue the state. A citizen would not only have to incur 80 percent of the cost if he or she won but also the state cost if they lost. ... It would be as if the legislators were asked to defend bills that the citizenry challenged and said were unconstitutional. And I have to ask how many of you would be willing to put up your own money and say, "Yes, ... we have to countersue, we have to respond to this suit that's brought by the citizens." I fear that few of you would be willing to put your own money forward on this. So I ask you ... to please stop this bill now. It really undermines the right of the individual citizen to challenge the state, and I think that's one of the beauties of ... our American system. Number 1488 DALE BONDURANT testified via teleconference from Kenai in opposition to SB 123, suggesting he has a well-known history as a public interest litigant. He spoke in support of the public interest litigant process, which has a commendable history of promoting the ability of the smallest common public interest to be heard as well as those special personal interests of the more rich and powerful. This process has allowed the public to participate and actually make a valuable difference in the protection of the benefits of the law for the public, he told members. In a free constitutional democracy, one may not agree with another's position and yet agree with others' rights to hold and expound upon their positions; the opportunity to be heard on the merit of that position is what makes the freedom so valued. MR. BONDURANT said that those who support SB 123 would handcuff the operation of the public interest litigant process when more powerful interests take advantage of and knowingly abuse the process. However, the voices of the latter will not be muted because of having the financial resources to continue their special interests. Eliminated will be the small players who have a legitimate, common public concern. Because there no longer will be an organized, responsible and affordable avenue to pursue the public interest in these cases, they will fail. As is popularly stated, "Don't throw the baby out with the wash water." MR. BONDURANT said some believe this bill will stop abuse of the process. However, it will not. More powerful parties, even if they lose in adjudication of their purpose, have a large cadre of supporting advocates that can financially remit up to $100,000 in tax-exempt contributions. But SB 123 will destroy the general public's ability to participate in a process on the merits of the public interest issue. Mr. Bondurant urged members to please defend the right of the general public to be heard above the clamor of the politically powerful. He concluded: We have been very active in the public interest issues such as access to Alaska's public waters, fish, wildlife and equal public access to these common-property resources. And we're now involved financially and dedicated to try to win back the state's sovereignty over these navigable waters and ... the public resources. So ... don't cut out "us." Our donations are $10 or less, and we're fighting this battle for the entire public. So, I think this bill is very bad, and I ask you to vote "no" on it. Thank you very much. Number 1656 REPRESENTATIVE CROFT asked Mr. Bondurant whether he was one of the appellees on the McDowell lawsuit. MR. BONDURANT specified that he is one of the named appellees on that lawsuit. REPRESENTATIVE CROFT said he understands that Sam McDowell got about $100,000, perhaps a little more, to pay for his attorney fees in that. Furthermore, he also understands that Mr. McDowell doesn't think he could have done that suit without the public interest litigant status. He asked whether that is Mr. Bondurant's opinion too. MR. BONDURANT replied: Very much so. And we sure didn't get back all of our fees, and, like the one gentleman said, we didn't get ours back for quite a long time. But maybe a more pertinent case right now is one that I was a named plaintiff in that, and that was the Alaska Public Easement Defense Fund, back in 1977, when we fought so the public will have reasonable access to all public waters in the state of Alaska. And we're very proud of that thing, and it's, ... again, for the public's use. REPRESENTATIVE CROFT asked Mr. Bondurant whether he was a public interest litigant in that case. MR. BONDURANT answered: Yes, sir, there were three of us, and I was one of the named litigants in that one. And that was in 1977. And we also fought in the Gulkana (ph) case; we weren't a named litigant, but me and Sam McDowell were the only people there representing the state. Number 1729 CHAIRMAN KOTT asked whether anyone else wished to testify, then closed public testimony. He announced his intention of sending the bill to a subcommittee consisting of Representatives Murkowski, Croft and Kerttula, with Representative Murkowski chairing. [SB 123 was held over.]
| Document Name | Date/Time | Subjects |
|---|