Legislature(1999 - 2000)

04/15/1999 01:24 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                                                                                                                                
                                                                                                                                
HB 176 - PUBLIC INTEREST LITIGANTS                                                                                              
                                                                                                                                
CHAIRMAN KOTT announced that the next item of business would be                                                                 
House Bill No. 176, "An Act relating to attorney fees and costs and                                                             
the granting of public interest litigant status in proceedings                                                                  
related to administrative actions and inactions; and amending Rules                                                             
79 and 82, Alaska Rules of Civil Procedure, and Rule 508, Alaska                                                                
Rules of Appellate Procedure."  Present to explain the bill and                                                                 
answer questions were Jeff Logan and Kevin Jardell, staff to                                                                    
Representative Green.                                                                                                           
                                                                                                                                
Number 1786                                                                                                                     
                                                                                                                                
JEFFREY LOGAN, Legislative Assistant to Representative Joe Green,                                                               
Alaska State Legislature, spoke on behalf of the sponsor, saying HB
176 is designed to "take the 'kick me' sign off of our backs."                                                                  
Noting Alaska's resource development economy, he said the state                                                                 
leases, sells, rents or somehow disposes of its resources, and then                                                             
collects a royalty, rent, tax, fee or other form of payment to fund                                                             
government services.  To protect the public interest, the                                                                       
legislature has spelled out a process that is carried out by the                                                                
Administration.  There are three stages of notice; integrated                                                                   
throughout are opportunities for extensive public involvement.  The                                                             
people who carry out this process are almost always people with                                                                 
impressive academic credentials, experience in their fields, and                                                                
dedication to public service, he said.  There is a clear process,                                                               
carried out by competent people.  But if a member of the public                                                                 
opposes an agency action or inaction, there is yet another                                                                      
opportunity to express that opposition:  the administrative appeals                                                             
process.  Failing that, a person can appeal to the courts.  Mr.                                                                 
Logan stated:                                                                                                                   
                                                                                                                                
     Mr. Chairman, some people who oppose the development of our                                                                
     resources, and whose arguments don't win the day in this                                                                   
     extensive public process, choose this final category,                                                                      
     litigation in the courts, in an attempt to circumvent your                                                                 
     policy and the executive branch's application of it.  And                                                                  
     that's okay, Mr. Chairman.  House Bill 176 doesn't address the                                                             
     process, or those people's right to access the court system.                                                               
                                                                                                                                
     What House Bill 176 does address is that under a doctrine                                                                  
     established by the court, these people are getting paid by the                                                             
     state to sue the state; and that doctrine is called the Public                                                             
     Interest Litigant Doctrine.  The court has said that some                                                                  
     litigation is so important, [to] not just the parties bringing                                                             
     the action but to the public at large, that the public at                                                                  
     large should ... foot the bill for the legal expenses, because                                                             
     the public at large will benefit from the resolution of the                                                                
     question at hand.  And there is probably some merit to that,                                                               
     if it worked that way.                                                                                                     
                                                                                                                                
     Unfortunately, the court has seen fit to allow the people of                                                               
     Alaska to foot the bill for other, smaller, more specific                                                                  
     questions before the court.  House Bill 176 is a proposal to                                                               
     change state policy, to go from getting sued and paying the                                                                
     plaintiffs to sue us, to getting sued and letting them pay for                                                             
     their own legal expenses, in essence, taking the "kick me"                                                                 
     sign off of our backs.                                                                                                     
                                                                                                                                
MR. LOGAN indicated he had a lot more material, then deferred to                                                                
testifiers on teleconference.                                                                                                   
                                                                                                                                
Number 2172                                                                                                                     
                                                                                                                                
WILLIAM GREENE, Deputy Municipal Attorney, Municipality of                                                                      
Anchorage, testified via teleconference from Anchorage that HB 176                                                              
is a step in the right direction.  However, political subdivisions                                                              
have similar problems, and the municipality would appreciate having                                                             
the burden of public interest litigant fees included under the                                                                  
coverage of HB 176.  He referred briefly to SB 123, then indicated                                                              
the municipality has found, in its experience in the courts, the                                                                
very liberal awarding of public interest litigant fees and the                                                                  
determination of who is a public interest litigant.                                                                             
                                                                                                                                
MR. GREENE said in cases involving state statute, the constitution,                                                             
or municipal law, the administrative or executive official making                                                               
the decision is limited by what the law states to a greater extent                                                              
than the courts are limited, he said.  Accordingly, they run into                                                               
cases frequently in which, under the existing statutory or                                                                      
ordinance law, the decision was correct but the courts overrode                                                                 
that judgment and made the plaintiff or the appellant a public                                                                  
interest litigant.  The municipality ends up paying 100 percent of                                                              
the actual reasonable attorneys fees of the other side; in this                                                                 
context, there is a great deal of leeway in determining what is                                                                 
reasonable.  Under Civil Rule 82, the court has wide discretion to                                                              
deviate from the schedules; at least in theory it could grant full                                                              
actual attorneys fees.                                                                                                          
                                                                                                                                
TAPE 99-33, SIDE A                                                                                                              
Number 0001                                                                                                                     
                                                                                                                                
MR. GREENE, in response to a question of Representative Rokeberg,                                                               
said in one instance the municipality prevailed in supporting the                                                               
ruling of its administrative official, and one minor matter ended                                                               
up being an advisory matter.  The municipality is in the process of                                                             
litigating whether or not the plaintiff will obtain full public                                                                 
interest litigant status on a relatively minor issue, because the                                                               
courts generally will not apportion fees between issues.                                                                        
                                                                                                                                
MR. GREENE told members that in a second case, the administrative                                                               
official followed the ordinance, the state statutes and the                                                                     
constitution, but is limited in the degree to which the official                                                                
may amend an initiative ballot proposition, whereas the court has                                                               
some additional powers that allowed it to make some changes in                                                                  
language in the petition statement itself.  Those are two instances                                                             
in which the municipality faces a real prospect, they believe, of                                                               
paying full actual attorneys fees, in cases where the municipality                                                              
was, at least in part, correct.  And in another instance where the                                                              
controlling issue in the case was answered by the court in the                                                                  
municipality's favor, they are still looking at the potential of                                                                
substantial fees.  Mr. Greene offered to provide further examples                                                               
in writing.                                                                                                                     
                                                                                                                                
Number 0234                                                                                                                     
                                                                                                                                
STEVE WILLIAMS, Attorney at Law, testified at length via                                                                        
teleconference from Anchorage, noting that he has been an attorney                                                              
in Fairbanks and Anchorage for 21 years, mostly representing civil                                                              
commercial clients, although he does some public interest                                                                       
litigation.  He stated, "I'm here because I believe that this bill                                                              
is a bad policy and, frankly, bad politics."  He told members:                                                                  
                                                                                                                                
     One thing I think that needs to be made clear is that the                                                                  
     state is not paying people to sue them.  What they are doing                                                               
     is ... if - at the end of the litigation, often several years                                                              
     out after a lawsuit is filed - the judiciary determines that                                                               
     the state acted unconstitutionally or unlawfully, then the                                                                 
     party is entitled to reasonable attorneys fees under the                                                                   
     public interest ... litigant standard.                                                                                     
                                                                                                                                
     Secondly, with respect to Mr. Greene's testimony, I can fully                                                              
     understand that the municipality would want in on this being                                                               
     let off the hook for fees where they've acted unlawfully.  No                                                              
     executive likes to be sued and called to task for acting                                                                   
     unlawfully or unconstitutionally.                                                                                          
                                                                                                                                
     But I think that the key point that I want to make here is                                                                 
     that our society - our democratic society - is founded on the                                                              
     rule of law; and that's a principal distinction between our                                                                
     democracy and other places such as Stalinist Russia, "banana                                                               
     republics," or modern-day Kosovos.  Now, I'm not saying Alaska                                                             
     is like that.  But the principle is that the executive branch                                                              
     of government must act lawfully and constitutionally, not                                                                  
     arbitrarily, and is subject to review and restraint by an                                                                  
     independent judiciary.  This principle is recognized as                                                                    
     essential for emerging (indisc.) democracies around the world,                                                             
     to protect the freedom and the rights of all citizens.                                                                     
                                                                                                                                
     The public interest attorneys fees doctrine, which has been                                                                
     recognized in Alaska for about 25 years, has as its purpose to                                                             
     encourage private citizens to raise issues of public interest                                                              
     where officials may be acting in an unlawful or                                                                            
     unconstitutional way, acting as a private attorney general to                                                              
     vindicate the public interest and the rule of law.  By                                                                     
     definition, ... under current law, a person is a public                                                                    
     interest litigant only if the case is designed to effectuate                                                               
     strong public policies; if the plaintiff succeeds, numerous                                                                
     people receive benefits from that success - numerous members                                                               
     of the public; that only a private party could reasonably have                                                             
     been expected to bring the suit; and that the purported public                                                             
     interest litigant did not have a substantial, sufficient                                                                   
     economic incentive to file the suit, but was instead primarily                                                             
     motivated to bring it by desire to raise and have decided                                                                  
     issues of significant public policy and legal importance.                                                                  
                                                                                                                                
     ... Currently, the successful public interest litigant is one                                                              
     who's prevailed, who's obtained a judicial determination that                                                              
     a public official's conduct was unlawful, is entitled to a                                                                 
     full reasonable fee ... for work devoted to pursuing that                                                                  
     determination.  However, the court is required to reduce the                                                               
     fee if the hourly rate is excessive, the total hours are                                                                   
     unreasonable, or if the party has unreasonably asserted issues                                                             
     which are frivolous or were asserted in bad faith.                                                                         
                                                                                                                                
     Furthermore, under current law ... a public interest litigant                                                              
     is not liable to a public defendant for an award of attorneys                                                              
     fees if the court does not rule in the public interest                                                                     
     litigant's favor.  The reason for that rule is to eliminate                                                                
     the substantial disincentive [that] would be presented to                                                                  
     citizens bringing cases of significant public interest.  Few                                                               
     people can afford to sue the government and face the risk of                                                               
     having to pay substantial attorneys fees awards, in cases                                                                  
     where they have no significant economic interests but merely                                                               
     are wanting to vindicate the public interest and the rule of                                                               
     law.                                                                                                                       
                                                                                                                                
     HB 176 would eliminate these long-established public interest                                                              
     principles in all cases where a public interest litigant                                                                   
     challenges action by the executive branch of state government.                                                             
     It would treat public interest litigants as the same as those                                                              
     who are motivated purely by financial incentive to sue, and,                                                               
     therefore, add an economic interest in incurring the costs                                                                 
     and risks of litigation.  It would thus dramatically reduce                                                                
     the incentive to bring public interest cases, where state                                                                  
     officials are, in fact, acting in a way which is unlawful or                                                               
     unconstitutional.                                                                                                          
                                                                                                                                
     Instead of allowing a successful litigant to recover full                                                                  
     reasonable fees for vindicating the public interest in having                                                              
     the executive branch - which, as we all know, at this point is                                                             
     the Knowles Administration - acting ... lawfully and                                                                       
     constitutionally, it would allow the recovery of only 20 to 30                                                             
     percent of those fees.  And since most public interest fees                                                                
     are matters of law and ... decided by summary judgment, it                                                                 
     would, in most cases, limit recovery to 20 percent of the                                                                  
     actual reasonable fees incurred in the case.                                                                               
                                                                                                                                
     And I would submit that, with respect to private attorneys in                                                              
     Alaska, many of whom work by themselves or in relatively small                                                             
     firms, very few Alaskan lawyers could take on a public                                                                     
     interest case if, in the end - ... after perhaps three or four                                                             
     years of litigation - they would be permitted to recover only                                                              
     20 percent of their actual fees for work on the case.  Those                                                               
     of you on the committee who are attorneys, or who have worked                                                              
     ... in the law business, know that that percentage of a fee                                                                
     would not even cover the overhead for most law firms, which                                                                
     generally ranges somewhere around 30 to 40 percent ... of                                                                  
     revenues.                                                                                                                  
                                                                                                                                
     Moreover, by exposing public interest litigants to the risk of                                                             
     facing award of fees, should the court not agree with their                                                                
     legal challenge to the state executive's conduct, HB 176 will                                                              
     clearly and dramatically ... deter such challenges from being                                                              
     brought.  The average citizen would face bankruptcy, were he                                                               
     or she not to prevail on a public interest case, and be                                                                    
     subjected to a substantial fee award.                                                                                      
                                                                                                                                
Number 0670                                                                                                                     
                                                                                                                                
     Now, I understand from talking to several folks, and it was                                                                
     reaffirmed by [Representative] Green's staffer, that this bill                                                             
     is apparently a reaction to certain public interest lawsuits,                                                              
     with which ... some legislators disagree, or which they view                                                               
     to be a nuisance, particularly in the natural resources area.                                                              
     However, it is just a reaction, in the sense that this law                                                                 
     would affect all public interest litigants.                                                                                
                                                                                                                                
     Alaska's public interest fee doctrine is not partisan.  It                                                                 
     protects the rights of all Alaskans, of all political and                                                                  
     philosophical persuasions, to litigate issues of substantial                                                               
     public interest.  In fact, to the extent this ... bill                                                                     
     purports to be a, quote, "conservative political reaction" is                                                              
     insulting to conservative principles.  ...                                                                                 
                                                                                                                                
MR. WILLIAMS offered as proof the following discussion of reported                                                              
cases on public interest litigation:                                                                                            
                                                                                                                                
     Those cases involving the administration of state laws ... in                                                              
     which a litigant has been found to be a public interest                                                                    
     litigant included [a] considerable number of cases involving                                                               
     political candidates or officeholders challenging election                                                                 
     conduct; cases contesting the conduct and result of state                                                                  
     elections; cases challenging state reapportionment schemes;                                                                
     cases challenging fish and game regulatory statutes, or fish                                                               
     and game enforcement or interpretation of them, where the                                                                  
     litigant relies on fish or game resources for personal, ...                                                                
     rather than commercial, use, or where the litigation is                                                                    
     principally designed to implement the public interest; cases                                                               
     challenging the state's public school ... funding formula                                                                  
     laws, in the way that they discriminate between REAA [Rural                                                                
     Education Attendance Area] and non-REAA schools; cases                                                                     
     challenging regulations concerning the use of boats on the                                                                 
     Kenai River; challenges to the Local Boundary Commission                                                                   
     decisions concerning incorporation of municipalities;                                                                      
     challenges to the implied powers of government concerning                                                                  
     state rights-of-way.                                                                                                       
                                                                                                                                
     And I think that these cases - and there are many more which                                                               
     don't involve ... the state administration, but which involve                                                              
     local government - these cases, if you review them fairly,                                                                 
     make it clear that the public interest litigation doctrine is                                                              
     not, one, a doctrine which is merely about, quote, "liberal                                                                
     groups" or "environmental groups" or even "civil liberties                                                                 
     groups."  It's a doctrine which protects the rights of us all,                                                             
     and protects the rights of people of all philosophical and                                                                 
     political persuasions to seek to vindicate the rule of law.                                                                
                                                                                                                                
     The only other comment I would make is that, in fact, what                                                                 
     this law will do is deter any private attorneys from taking                                                                
     public interest cases brought by individual citizens.  In                                                                  
     fact, the concern of some members of the legislature, and of                                                               
     this committee, as expressed by Representative Green's aide,                                                               
     is to somehow deter environmental organizations and law firms                                                              
     from bringing lawsuits challenging natural resource decisions                                                              
     by the state executive.                                                                                                    
                                                                                                                                
     I would suggest that this bill will not do that, mainly                                                                    
     because that is what those groups exist to do.  At most, this                                                              
     bill will somewhat reduce their income from this particular                                                                
     source, which they might get, again, if they were right, and                                                               
     if they won the case - in other words, if their view of the                                                                
     law was correct, ... at the end of a lawsuit.  But, in fact,                                                               
     those kinds of interest groups are out there and established                                                               
     specifically to litigate these issues.  So, I don't think that                                                             
     this is going to be a deterrent to those sorts of interests                                                                
     being asserted in litigation against the state executive.                                                                  
                                                                                                                                
     Instead, it's going to be a deterrent against people who                                                                   
     aren't a part of organized environmental groups or other                                                                   
     organized groups, who may not have an organization ... with a                                                              
     few staff attorneys who ... are capable of bringing cases.  It                                                             
     will, in fact, deter people who go to lawyers like me and say,                                                             
     "I think that I was not treated fairly," or "I think that the                                                              
     state government is acting unlawfully; will you help me?"  And                                                             
     I'd have to look at that people and say, "I really want to.                                                                
     I care about this.  But you have to understand that I can't                                                                
     afford to take a case on where, even if we're right, and even                                                              
     if we get paid some fee three years from now, or four years                                                                
     from now, it will only be 20 percent of what I actually put                                                                
     into the case, which won't even be enough to cover my                                                                      
     overhead."                                                                                                                 
                                                                                                                                
     So, in conclusion, I just think that ... there's no doubt that                                                             
     this bill will seriously reduce the power of Alaskans of all                                                               
     political persuasions to ensure that the executive branch of                                                               
     their government - the Knowles Administration, for at least                                                                
     the next three and a half years - conducts itself in a way                                                                 
     which is lawful, consistent with the laws passed by this                                                                   
     legislature, and constitutional.  Simply put, the bill will                                                                
     erode the rule of law in Alaska, and I would urge the                                                                      
     committee not to pass it out.                                                                                              
                                                                                                                                
Number 1002                                                                                                                     
                                                                                                                                
KEVIN JARDELL, Legislative Assistant to Representative Joe Green,                                                               
Alaska State Legislature, responded that he takes some exception to                                                             
the loose analogy to Kosovo and "banana republic" countries,                                                                    
although he realizes it was to make a point.  He then reminded                                                                  
members that neither the federal system nor any other state system,                                                             
to his knowledge, has such a broad doctrine.  He stated:                                                                        
                                                                                                                                
     I don't think, if the doctrine is eliminated or is defined in                                                              
     some other way, that we would see an all-out destruction of                                                                
     the rule of law by any means, or even an erosion of the rule                                                               
     of law.  Throughout this state's history, we've had people                                                                 
     stand up and take it upon themselves to challenge actions by                                                               
     municipalities, the state; and we're not saying that they                                                                  
     can't do that now.  In fact, in the state of Alaska we have a                                                              
     system, under Rule 82, that pays a portion of their fees if                                                                
     they do, in fact, win and are considered the prevailing party.                                                             
     This just eliminates the doctrine, or will redefine the                                                                    
     doctrine, in a way, that some policymakers believe brings it                                                               
     more in line with what they feel [it] should be.                                                                           
                                                                                                                                
     Some of the problems that we see have been brought out by the                                                              
     Administration, in its arguments in cases, when it argues that                                                             
     the courts have reimbursed public interest litigants for                                                                   
     legislative lobbying costs.  The courts have allowed public                                                                
     interest litigant status to be awarded to groups and                                                                       
     individuals that are seeking policy agendas, and not                                                                       
     necessarily in the public interest. ...                                                                                    
                                                                                                                                
     The question the Administration posed to the court was:  What                                                              
     amount should the Alaska Center for the Environment be awarded                                                             
     as an accidental beneficiary of an unfortunately drafted                                                                   
     settlement agreement, the fatal deficiencies (indisc.) which                                                               
     were established by others?  This is a case where ACE won                                                                  
     approximately three out of eleven claims.  The court decided                                                               
     that even those three weren't significant.  The superior court                                                             
     said, "We won't give you any fees."  The supreme court                                                                     
     remanded the case and said, "Not only will you pay them fees,                                                              
     but you'll pay them $456,000."  That's the type of abuse of                                                                
     the policy that we [have] recognized, and that we are trying                                                               
     to remedy.                                                                                                                 
                                                                                                                                
     Now, whether there are other solutions, other considerations                                                               
     that can be brought up -- I know the sponsor is always open to                                                             
     suggestions.  The municipality has raised some points that                                                                 
     they would like to bring up, apparently, and ... the sponsor                                                               
     would be more than happy to listen to those suggestions.  But                                                              
     there is a problem, and it needs to be addressed.  And this is                                                             
     an attempt to address that problem.                                                                                        
                                                                                                                                
CHAIRMAN KOTT asked whether Mr. Williams wished to reply briefly.                                                               
                                                                                                                                
Number 1211                                                                                                                     
                                                                                                                                
MR. WILLIAMS responded that, first, he was obviously not comparing                                                              
Governor Knowles to [Yugoslav President] Milosevic.  He himself                                                                 
believes that the conduct of the government is subject to review by                                                             
the judiciary, and there is no doubt that the ability of people to                                                              
obtain judicial review of executive conduct will be diminished                                                                  
here.  Second, he agrees with Mr. Jardell that most other states                                                                
don't provide for attorneys fees, except in certain statutorily                                                                 
provided situations.  In fact, very few other states provide for an                                                             
award of attorneys fees against the losing party, period.  It is,                                                               
therefore, a two-edged sword.  He believes that HB 176 will provide                                                             
a substantial disincentive to people bringing public interest                                                                   
cases, although probably not to some organizations that exist for                                                               
this very purpose.                                                                                                              
                                                                                                                                
Number 1318                                                                                                                     
                                                                                                                                
LAUREE HUGONIN, Director, Alaska Network on Domestic Violence and                                                               
Sexual Assault, came forward.  She told members that unfortunately                                                              
the network had entered into litigation as a public interest                                                                    
litigant after passage of the domestic violence prevention and                                                                  
victim protection Act of 1996.  It was a case against the court                                                                 
system, which had refused to recognize the three separate types of                                                              
protective orders that the legislature had made provision for in                                                                
the Act; through court forms, only two kinds of protective orders                                                               
were available.                                                                                                                 
                                                                                                                                
MS. HUGONIN explained, "We tried to work with their forms                                                                       
committee.  We tried to work with Mr. Snowden, who was the                                                                      
administrator at the time.  We tried to intervene through talks                                                                 
with the Administration, talking to the court system.  Then                                                                     
Representative Parnell also tried to work with the court system to                                                              
remedy this short of litigation.  And we were not successful in any                                                             
of our attempts to do so.  And so, we believe strongly enough that                                                              
victims were being put at risk, by not being able to ... avail                                                                  
themselves of this remedy that the legislature had provided, that                                                               
we did enter into litigation against the court system."                                                                         
                                                                                                                                
MS. HUGONIN noted that they had been successful in that litigation,                                                             
winning on all issues.  They tried to reduce costs, she said, and                                                               
they sold T-shirts and sweatshirts.    They are a small                                                                         
organization that is lucky if it has $10,000 in the bank.  Although                                                             
only about two-thirds of their attorneys fees were awarded to them,                                                             
the ability to collect those attorneys fees helped them to stay a                                                               
viable entity.  She understands that the concern is of maybe a                                                                  
bigger proportion in terms of money that the state has to return to                                                             
programs.  However, it affects little programs, as well - and on                                                                
matters of life and death.                                                                                                      
                                                                                                                                
MS. HUGONIN said as she reads them, HB 176 differs from the Senate                                                              
bill in that it applies to executive branch actions.  Although                                                                  
their particular case against the judicial branch may not fall                                                                  
within the scope of this bill, there could be occasions where they                                                              
need to litigate against the Administration, if the Administration                                                              
chooses to not follow a policy meant for the protection of victims,                                                             
for example, and is, in fact, endangering them.  Ms. Hugonin                                                                    
expressed hope that some consideration would be given to narrowing                                                              
the scope or, for a prevailing party, allowing the court to                                                                     
continue to have discretion in the amount of the attorneys fees                                                                 
awarded.  Noting that their case was the first time her                                                                         
organization had to be a public interest litigant, she said she                                                                 
hopes it is the last.  "But we would like to be able to avail                                                                   
ourselves of that, if it became necessary again," she concluded.                                                                
                                                                                                                                
Number 1515                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN asked whether that two-thirds was awarded                                                                  
because of being a public interest litigant or because of being the                                                             
victorious party.                                                                                                               
                                                                                                                                
MS. HUGONIN replied that she believes it was for both reasons.                                                                  
                                                                                                                                
REPRESENTATIVE GREEN asked whether she believes they would have                                                                 
been awarded no fees if they hadn't applied as a public interest                                                                
litigant.                                                                                                                       
                                                                                                                                
MS. HUGONIN said she wasn't sure, as she is not an attorney.                                                                    
                                                                                                                                
Number 1617                                                                                                                     
                                                                                                                                
MR. JARDELL, who is an attorney, clarified that under Rule 82 the                                                               
court can award more than the 30 percent or 20 percent that is                                                                  
given in section (b), and factors are set out for the courts to                                                                 
look at.  Even under Rule 82, therefore, the court could always                                                                 
come back, for whatever reason deemed necessary, and award whatever                                                             
it believes to be adequate.                                                                                                     
                                                                                                                                
Number 1714                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG asked whether it is a fair analysis that                                                                
the legislature, rather than the court system, makes the laws, and                                                              
that in this case the courts clearly have usurped the lawmaking                                                                 
ability of the legislature.                                                                                                     
                                                                                                                                
MR. JARDELL answered that if one goes far enough back, to common                                                                
law, the courts set all law.  It has evolved from that to more of                                                               
a civil law, to where we now codify almost everything.  Reserved in                                                             
the common law is the concept that if the legislature hasn't spoken                                                             
to it, the courts can create it.  Therefore, until the legislature                                                              
speaks to it, the courts can create a doctrine.                                                                                 
                                                                                                                                
REPRESENTATIVE ROKEBERG asked whether the legislature couldn't                                                                  
repeal any public interest doctrine or principles, and restrict the                                                             
court from applying them.                                                                                                       
                                                                                                                                
MR. JARDELL replied, "Absolutely."                                                                                              
                                                                                                                                
REPRESENTATIVE ROKEBERG thanked Representative Green for                                                                        
introducing HB 176, saying it is one of the best bills he has seen                                                              
this session, including his own.  He disagreed with Mr. Williams                                                                
that this would erode the rule of law, then stated, "I'd say the                                                                
existence of this is making scofflaws of people who intentionally                                                               
litigate for the very purpose of filling their own coffers and                                                                  
pursuing agendas, and of taking advantage of this, to the degree                                                                
that it's stifled development and cost literally thousands of jobs                                                              
in this state.  And it's the most frustrating thing I've witnesses                                                              
here for the last 50 years of my life, the development of this type                                                             
of thing."                                                                                                                      
                                                                                                                                
Number 1786                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT referred to Mr. Greene's suggestion that HB 176 be                                                                
extended to apply to municipalities.  He asked whether that had                                                                 
been given any thought.                                                                                                         
                                                                                                                                
MR. JARDELL affirmed that, then added, "We didn't have any good                                                                 
communications with the municipality, and weren't aware of exactly                                                              
what type of problem existed there.  We were working under a rough                                                              
assumption that they may see more of ... causes of action that ...                                                              
may be in the realm where the policy makers here believe it should                                                              
be a sole individual standing up for zoning problems against the                                                                
municipality, and not really running into the same problems that                                                                
the state does.  We work with the state, so we're more aware of the                                                             
state's problems."  Mr. Jardell said they would contact Mr. Greene                                                              
and work with him; if there is a need to extend this to                                                                         
municipalities, and a way to do that, then the sponsor's office                                                                 
will see whether it can be done.                                                                                                
                                                                                                                                
Number 1848                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA pointed out that courts create the rule of                                                              
law along with the legislature.                                                                                                 
                                                                                                                                
REPRESENTATIVE ROKEBERG responded, "I don't disagree with                                                                       
Representative Kerttula; I just think we're in the constitutionally                                                             
superior position."  He then asked whether there is a potential                                                                 
here to distinguish between natural resource or development                                                                     
activities and other grievances, without running afoul of                                                                       
constitutional fairness mandates, for example.                                                                                  
                                                                                                                                
Number 1903                                                                                                                     
                                                                                                                                
MR. JARDELL replied that the federal method and most states'                                                                    
methods are to determine specific causes of action, such as                                                                     
election laws, and make a determination that election laws are an                                                               
area that they want to encourage people to challenge, for instance,                                                             
as a foundation of democracy; therefore, they will allow full                                                                   
reasonable attorneys fees as an exception to that cause of action.                                                              
However, it is very difficult to develop each and every cause of                                                                
action that could come up.  It is also difficult to try to come up                                                              
with a balance for the carrot and the stick, without having a                                                                   
doctrine like we do now.                                                                                                        
                                                                                                                                
REPRESENTATIVE KERTTULA responded that therein lies the problem.                                                                
They would foreclose a whole range of public interest litigation,                                                               
including civil rights cases, public information matters or those                                                               
raised by Ms. Hugonin, for example, not just that involving natural                                                             
resources.                                                                                                                      
                                                                                                                                
REPRESENTATIVE ROKEBERG said he takes exception, asking whether the                                                             
issue is now paying Mr. Williams' overhead.  He commented that                                                                  
members of the bar have an obligation to look out for people whose                                                              
rights are being stepped on, and who don't have the resources to                                                                
come forward.  He said he believes the current situation is being                                                               
abused.                                                                                                                         
                                                                                                                                
MR. JARDELL addressed Representative Kerttula's comment, saying                                                                 
that the exception mentioned earlier in Rule 82 would still provide                                                             
the courts a remedy for those situations that aren't being abusive,                                                             
and which truly merit a greater award of attorneys fees than the 30                                                             
percent or 20 percent.                                                                                                          
                                                                                                                                
Number 2054                                                                                                                     
                                                                                                                                
MR. LOGAN referred to the 1990 Alaska Supreme Court opinion                                                                     
provided in committee packets regarding Anchorage Daily News v.                                                                 
Anchorage School District.  He clarified that although that is the                                                              
case where the court enumerated the four standards that must be met                                                             
in order to be considered a public interest litigant, that was a                                                                
case where the plaintiff was a subsidiary of a large newspaper                                                                  
corporation.  It isn't always an indigent organizations that is                                                                 
granted public interest litigation status, he pointed out.                                                                      
                                                                                                                                
Number 2089                                                                                                                     
                                                                                                                                
MS. HUGONIN expressed her understanding that one reason why her                                                                 
organization became a public interest litigant was because it                                                                   
needed standing in order to appear in court.  Part of what HB 176                                                               
does is remove the notion of public interest litigant or doctrine.                                                              
She asked the committee to consider still allowing these litigants                                                              
to have standing in court, to continue to bring these matters                                                                   
forward, aside from the issue of attorney fees.                                                                                 
                                                                                                                                
Number 2158                                                                                                                     
                                                                                                                                
MR. JARDELL pointed out that standing is a completely different                                                                 
issue from attorneys fees, and this would have no affect,                                                                       
whatsoever, on the ability of one person or another to obtain                                                                   
standing.                                                                                                                       
                                                                                                                                
REPRESENTATIVE ROKEBERG said he is aware of a part-time fisherman                                                               
in Haines with standing enough to bring down and stop any                                                                       
development anywhere in the state of Alaska, in terms of the                                                                    
practical application of the Alaska courts.                                                                                     
                                                                                                                                
MR. JARDELL stated, "Even with public interest litigants, when                                                                  
there's a group the courts still look to the members of the group                                                               
to see if the members having standing, so that the group will have                                                              
standing.  And so, whether you're claiming to be a public interest                                                              
litigant or not, you're still going to have to have an individual                                                               
standing classification, some injury, in fact.  So, this really                                                                 
would not have any effect on a person's ability to get so-called                                                                
standing."                                                                                                                      
                                                                                                                                
Number 2231                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT asked whether there were further questions or                                                                     
testifiers, then closed public testimony.                                                                                       
                                                                                                                                
Number 2247                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA told members she would like to be sure on                                                               
the issue of standing, as she doesn't want to change the statute on                                                             
that.  Second, she would like to show the committee the kinds of                                                                
cases that get these awards.  These are people who have won their                                                               
cases, which is why they are getting the awards, she noted.                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG agreed that would be great information,                                                                 
stating his understanding that with resource cases, it is "merely                                                               
technical, minor provisions that allow 100 percent awards, and it                                                               
stops development for five years."                                                                                              
                                                                                                                                
REPRESENTATIVE KERTTULA responded that those aren't the cases she                                                               
has seen.                                                                                                                       
                                                                                                                                
CHAIRMAN KOTT agreed that these are valid concerns.  He indicated                                                               
he looked forward to hearing from Representative Kerttula regarding                                                             
standing and the types of cases, at the next hearing on the bill.                                                               
He concluded by announcing that HB 176 would be held over.                                                                      

Document Name Date/Time Subjects