04/27/2006 08:00 AM House STATE AFFAIRS

SB  86-STATE/MUNI LIABILITY FOR ATTORNEY FEES                                                                                 
                                                                                                                                
9:49:17 AM                                                                                                                    
                                                                                                                                
CHAIR SEATON  announced that  the last order  of business  was CS                                                               
FOR SENATE  BILL NO.  86(CRA)(efd fld), "An  Act relating  to the                                                               
liability of  the state and  municipalities for attorney  fees in                                                               
certain civil actions and appeals."                                                                                             
                                                                                                                                
9:49:53 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG  directed  attention  to  a  memorandum                                                               
dated April  26, 2006, from  Dennis Bailey to  Representative Les                                                               
Gara, the first paragraph of which read as follows:                                                                             
                                                                                                                                
     You asked for  an opinion whether a  two-thirds vote is                                                                    
     required  for  passage  of CSSB  86(CRA).    The  short                                                                    
     answer is yes.  The  bill modifies Civil Rule 82, which                                                                    
     provides for court-awarded attorney  fees.  Article IV,                                                                    
     sec. 15,  Constitution of the State  of Alaska requires                                                                    
     a  two-thirds vote  by  the members  in  each house  to                                                                    
     change a  court rule.   Accordingly, there should  be a                                                                    
     section and  court rule change  notice in the  title of                                                                    
     the modification of Civil Rule 82.                                                                                         
                                                                                                                                
9:51:12 AM                                                                                                                    
                                                                                                                                
CRAIG TILLERY,  Deputy Attorney  General, Civil  Division, Office                                                               
of  the Attorney  General, Department  of Law,  at the  behest of                                                               
Representative Gruenberg, read the first paragraph out loud.                                                                    
                                                                                                                                
9:51:46 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG asked, assuming  that that legal opinion                                                               
is correct,  what the  cost would  be to  the state  of defending                                                               
such a lawsuit,  including "the potential exposure  for the other                                                               
side's attorney fees."                                                                                                          
                                                                                                                                
9:52:19 AM                                                                                                                    
                                                                                                                                
MR. TILLERY responded  that he would have to go  back and look at                                                               
that.  Notwithstanding  that, he said based on  the litigation in                                                               
House Bill  145, "it would  be some relatively small  fraction of                                                               
that."  He said he couldn't offer an estimate on the spot.                                                                      
                                                                                                                                
9:52:45 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG said he would  like to have an answer to                                                               
that in writing from Mr. Tillery.   Furthermore, he said he would                                                               
also like  in writing  what the  state's cost to  date are  for a                                                               
case relating to the Native village of Nunapitchuk.                                                                             
                                                                                                                                
MR. TILLERY,  in response to  a question from Chair  Seaton, said                                                               
the Department of Law holds a  view contrary to the one expressed                                                               
in the aforementioned memorandum.   He stated, "This was actually                                                               
written in  response to the  superior court's decision.   We have                                                               
looked at  this and  feel fairly confident  a two-thirds  vote is                                                               
not required  in order  for the  legislature to  assert sovereign                                                               
immunity."                                                                                                                      
                                                                                                                                
9:54:53 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG  asked  Mr.  Tillery,  "Does  this  ...                                                               
legislation also  involve the  award of costs  under Rule  79, or                                                               
are  you conceding  that they  would still  be entitled  to their                                                               
costs and,  as I recall, be  immunized from an award  of attorney                                                               
costs in case the state prevailed under [Rule] 79?"                                                                             
                                                                                                                                
9:55:28 AM                                                                                                                    
                                                                                                                                
MR. TILLERY replied, "This bill only deals with attorney fees."                                                                 
                                                                                                                                
9:57:00 AM                                                                                                                    
                                                                                                                                
RANDY RUARO,  Assistant Attorney  General &  Legislative Liaison,                                                               
Legislation  &  Regulations  Section,  Civil  Division  (Juneau),                                                               
Department of Law,  in response to a question  from Chair Seaton,                                                               
said he thinks that attorneys  do have an obligation to zealously                                                               
represent their  clients.   However, he said,  they also  have an                                                               
obligation not to needless drive  up the expense of litigation by                                                               
"throwing in  a kitchen  sink worth  of claims  ... in  the hopes                                                               
that one will stick."  He said it's a matter of balance.                                                                        
                                                                                                                                
9:57:42 AM                                                                                                                    
                                                                                                                                
CHAIR  SEATON  clarified  that he  wants  confirmation  that  the                                                               
department is  not saying that  "for someone  to only win  on two                                                               
sections of the  suit really meant that they had  lost the suit,"                                                               
but that  "some of the theories  of action they might  prevail on                                                               
...  could be  the substance  of  the suit,  even if  it's ...  a                                                               
minority of the number of theories."                                                                                            
                                                                                                                                
9:58:19 AM                                                                                                                    
                                                                                                                                
MR. RUARO responded, "That's part  of the problem of allowing the                                                               
courts to  handle the  issue on a  case-by-case basis;  it's very                                                               
hard to predict what you actually  do have to do to be considered                                                               
a prevailing public  interest litigant."  He said  case law seems                                                               
to be  constantly evolving.   He added,  "I guess we  would argue                                                               
why it would be a better  function under Article 2, Section 21 of                                                               
the constitution for the legislature to ... decide it."                                                                         
                                                                                                                                
9:59:05 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG prefaced his  subsequent motion with the                                                               
statement that he plans to vote against the bill.                                                                               
                                                                                                                                
REPRESENTATIVE GRUENBERG  moved to  report CSSB  86(CRA)(efd fld)                                                               
out  of   committee  with  individual  recommendations   and  the                                                               
accompanying fiscal notes.                                                                                                      
                                                                                                                                
CHAIR SEATON [objected].                                                                                                        
                                                                                                                                
9:59:47 AM                                                                                                                    
                                                                                                                                
A roll call  vote was taken.  Representative Lynn  voted in favor                                                               
of   moving    CSSB   86(CRA)(efd   fld)   out    of   committee.                                                               
Representatives Gruenberg,  Gatto, and  Seaton voted  against it.                                                               
Therefore, CSSB 86(CRA)(efd fld) failed  to move out of the House                                                               
State Affairs Standing Committee by a vote of 1-3.