Legislature(2005 - 2006)BELTZ 211
02/09/2005 01:30 PM Senate COMMUNITY & REGIONAL AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| SB86 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 86 | TELECONFERENCED | |
SB 86-STATE/MUNI LIABILITY FOR ATTORNEY FEES
CHAIR GARY STEVENS announced SB 86 to be up for consideration.
He noted that HB 117 is the companion bill and it had referrals
to the House Community and Regional Affairs and State Affairs
Committees.
CHAIR GARY STEVENS asked Mr. Brandt-Erichsen to begin his
testimony.
1:36:10 PM
SCOTT BRANDT-ERICHSEN, Ketchikan Gateway Borough attorney,
stated that SB 86 addresses a subject that he has commented on
previously and the current version is superior to previous
efforts. The question of public interest litigant attorney's
fees or the possibility of full award of attorney's fees against
public entities can be problematic because a community could be
caught in middle, he said.
He cited a case when he worked for the Municipality of Anchorage
and was defending a decision the city clerk had made. In that
case there were public interest litigants on both sides, which
assured that the city wouldn't recover any fees if they won, and
if they lost they were likely to have to pay one party or the
other. They did win the case and didn't have to pay fees, but
were unsuccessful when they tried to recover incurred fees. The
city argued for a change in the law, but the effort was
unsuccessful.
1:37:56 PM
Currently, he said, there is disparity in the incentive to
settle a case. If a party has more than one claim and one might
be successful, if it would otherwise qualify for the public
interest litigant status there is little incentive to keep costs
to a minimum and resolve the case. If full cost recovery is
likely it could be used as a money making proposition.
1:38:44 PM
MR. BRANDT-ERICHSEN referenced page 2, line 5 and suggested a
wording change; delete "cost or" and insert "attorney's". He
made the point that the bill doesn't address costs; it addresses
attorney's fees so the change would provide continuity and
maintain clarity. "The distinction between awards of costs and
attorney's fees is appropriate so the awards of costs are not
affected, but awards of attorney's fees would be limited by this
section except where there's an explicit authorization for the
award of attorney's fees in the amount greater than that which
would be provided in this section," he explained.
1:41:04 PM
CHAIR GARY STEVENS asked what "costs or fees" would include.
1:41:25 PM
MR. BRANDT-ERICHSEN said the court has applied the term "costs"
several ways in statutes. Sometimes it includes attorney's fees,
but not always. Under Rule 79, parties generally recover the
full amount of money expended for filing fees, process fees and
depositions while attorney's fees would be the time an attorney
bills for providing the service. He suggested the change because
the statute addresses limiting attorney's fees and not costs.
1:42:33 PM
CHAIR GARY STEVENS said the committee might want to consider
amending the bill.
Finding no further questions for Mr. Brandt-Erichsen, he asked
Mr. Kennedy to comment.
1:42:56 PM
CHRIS KENNEDY, assistant attorney general, spoke via
teleconference and apologized for missing the first part of the
meeting. He asked if anyone had formally introduced the bill.
CHAIR GARY STEVENS asked him to present the legislation.
1:43:41 PM
MR. KENNEDY said in Alaska civil suits, the losing party
traditionally pays at least part of the winning litigants
attorney's fees. The award usually isn't more than 20 percent of
a money judgment and for non-money judgments it's usually not
more than 30 percent of the winning party's fees.
1:44:43 PM
SB 86 addresses enhanced fee awards against state and local
governments, which are the fees over and above normal partial
compensation. Enhanced fees occur in the context of public
interest litigation where the court determines a lawsuit
advances what the court views as strong public policies. "A
government can be ordered to pay full fees to a plaintiff even
when the government prevails on most issues in the case," he
said. For example even though his office successfully defended
all but two provisions of the 1999 case, Alaska Civil Liberties
Union (ACLU) versus State, the Alaska court awarded the ACLU
full attorney's fees.
1:45:42 PM
SB 86 provides that for civil actions or appeals, the state and
municipalities are not liable to pay more than 20 percent of the
money judgment as attorney's fee to the other side. For civil
actions in which no money judgment is recovered, liability is
capped at 30 percent of reasonable actual attorney's fees
incurred by the winning party on the issues on which they
prevailed. If the case doesn't go to trial, the cap is 20
percent of the same amount.
For appeals in which no money judgment is recovered, state and
municipality liability for attorney's fees is capped at 20
percent of the reasonable actual attorney's fees incurred by the
prevailing side on the issues on which they prevailed
These limitations don't apply: when statutes apply differently;
when the court awards attorney's fees as a sanction for
misconduct by the government or its attorney; and in cases that
involve eminent domain or condemnation.
SB 86 was introduced to protect the state treasury and to give
the Legislature policy choices regarding subsidizing litigation
against the state with public funds, he said.
1:47:58 PM
The unfair competition statute cited in the bill is an example
in which immunity is waived and another is the public interest
litigant statute enacted in 2003. The latter is under legal
challenge, but would be an exception to SB 86 if it survives.
1:48:44 PM
"Because this bill relates to the Legislature's fundamental
control over the state's fiscal matters and over suits against
municipalities, it's not a change of rules and doesn't require a
2/3 vote. It's similar to the other immunities that are
contained in chapter 65 of Title 9," he concluded.
1:49:08 PM
CHAIR GARY STEVENS asked whether he had any comment regarding
Mr. Brandt-Erichsen's suggestion to amend.
MR. KENNEDY replied his office had no objection to the
suggestion and the explanation made sense. However, he would
suggest inserting the word, "attorney" in the singular because
the bill refers to the fees in that way.
CHAIR GARY STEVENS noted there were no questions and thanked Mr.
Kennedy for his comments. He then called Mr. Bondurant to give
testimony.
1:50:27 PM
DALE BONDURANT, Soldotna resident, testified via teleconference.
He said he has placed his property under a conservation easement
and he opposes SB 86.
1:51:04 PM
MR. BONDURANT read his remarks into the record citing both the
Alaska and the U.S. Constitutions.
1:53:51 PM
CHAIR GARY STEVENS thanked Mr. Bondurant for expressing his
views and reminded him that he might want to track HB 117 as
well.
There were no questions and no further testimony.
He announced that he didn't intend to move the bill, but he was
willing to address the suggested amendment if the committee so
desired.
1:54:32 PM
SENATOR BERT STEDMAN motioned to delete the words "costs or" on
page 2, line 5 and insert the word "attorney". There being no
objection, it was so ordered.
CHAIR GARY STEVENS announced he would hold the amended SB 86 in
committee and that a committee substitute would be prepared.
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