CSHB 145(FIN)-ATTY FEES/ BOND: PUBLIC INTEREST LITIGANT  CHAIR SEEKINS announced CSHB 145(FIN) to be up for consideration. MR. CRAIG TILLERY, Assistant Attorney General, said the bill is intended to prohibit discrimination in the award of attorneys' fees by preventing the allowance of specific favoritism to public interest litigants. It provides that in an action or appeal, a court may not discriminate in the awarding of attorneys' fees if the action or appeal is based on the nature of the policy or the interest advocated by the party or on the persons affected by the outcome of the case or the governmental entity [indisc]. Those are the four factors the Supreme Court listed as supporting the public interest litigant status. In calculating the award that may be granted to the public interest litigant on the constitutional case, the court shall include in the award only those parts of the case that were devoted to the constitutional issues and upon which it prevailed. The court can only make the award if the claimant did not have sufficient economic incentive to bring the lawsuit. Finally, the court in its discretion can abate an award if it finds substantial and undue hardship is put upon the party ordered to pay the fees or costs. He said that Section 3 of the bill would prevent a court from using those public interest litigant factors in determining whether to require or in allowing a party to be excused from paying a bond. SENATOR THERRIAULT asked for an example of having sufficient economic reason for bringing a case. MR. TILLERY replied that in order to have that sort of status, you cannot have economic incentive to bring the action. MR. BENJAMIN BROWN, Alaska State Chamber of Commerce, supported HB 145 in its current version and explained: ...This bill looks at the nature of the claim and it says what are the most important claims that someone ought to be able to bring, regardless of his or her financial circumstances - in what has been called the public interest - and the bill makes the determination that it's constitutional claims that deserve that special status.... MR. BROWN highlighted a three-page document, Order on Emergency Relief, written by one of the single justices of the Alaska Supreme Court that explains why section 3 does not excuse a litigant from posting a bond to get things like temporary restraining orders. He also noted that while there had been discussion about putting (c) into Chapter 68 of Title 9, because prior sections of the chapter were adopted with court rule changes, he did not see language in (c) violating any existing rules and, therefore, didn't think it was necessary to put this language into the statute. SENATOR OGAN asked if the intent language on page 2, lines 1 - 9, had the effect of being retroactive. MR. BROWN replied no. The applicability of this legislation is covered under Section (4) on page 3 and it applies to all civil actions and appeals filed on or after the effective date, which is immediate. The effect of the language on page 2, expressly overruling decisions of the Alaska Supreme Court and the cases listed, is not going to have a retroactive affect and will not affect other holdings in those cases beyond the public interest doctrines. The drafters wanted to make sure that only public interest elements were captured in overruling the doctrine. TAPE 03-53, SIDE B    SENATOR OGAN asked a question as the tape was changing and Mr. Brown responded that the public interest doctrine is not codified and not part of the Rules of Civil Procedure. MR. BOB BRIGGS, attorney with the Disability Law Center, urged them to reconsider the wisdom of CSHB 145(FIN), because it expands the abrogation of the public interest litigant doctrine to all statutory and all common law claims. Testimony from Laurie Hugonin, Alaska Network on Domestic Violence and Sexual Abuse, in the previous Legislature regarding SB 183 pointed out that her organization sued the Alaska court system because it was not implementing a statute the Legislature had passed. She pointed out that if it were not for the public interest litigant doctrine, she didn't think she could have brought that lawsuit. He suggested that there might be a much broader impact than the original focus of HB 145 and there really isn't a legislative record that would support that broad abrogation of the doctrine. He pointed out that they only heard from people who said the public interest litigant doctrine had affected resource development in this state, but not from anyone complaining about the affect it had on enforcement of our civil rights statutes and our election or redistricting laws. The reason the public interest litigant doctrine treats people differently is to level the playing field and HB 145, therefore, reskews an unlevel playing field. HB 145 fails to identify the fact that it makes a court rule change...The court may make and promulgate rules of procedure by any means that effects a public pronouncement of the rule of procedure.... I didn't find an Alaska case on this point, but I did find a New York case on this point...but promulgate means to publicly pronounce or to disseminate...so a rule can be disseminated in any number of ways. The Alaska Supreme Court has espoused the public interest litigant doctrine in three ways: first; by publishing it as a notation to a codified rule; secondly, by including it as a specific paragraph in a Supreme Court order, Supreme Court Order 11.18 (am); and, as part of a published series of judicial decisions. So, I suggest that the public interest litigant doctrine is a rule of procedure that courts are required to apply in making their decisions about the allocation of attorney's and costs and in litigation to which it applies. And, therefore, in changing the doctrine, you should identify in the title of the bill that you are abrogating the doctrine. To be legally effective, it should be adopted by two-thirds majority of both houses. The rule, if amended as I suggested, is the doctrine, itself, as well as Civil Rule 82. Civil Rule 62 in this new version is affected by this bill and modified; the same is true for Appellate Rule 508, Appellate Rules 204 and Appellate Rule 602. MR. BRIGGS said that those rules all relate to the procedure by which courts go about issuing stays on appeals. He concluded by urging the committee to vote no on HB 145, but added that the Disability Law Center took no position on the much narrower House Judiciary version of the bill. SENATOR FRENCH arrived at 7:19 p.m. SENATOR OGAN said he also preferred a much narrower bill focused on resource issues as public interest litigant status has stymied efforts to develop our resources, which is in Alaska's best interest. SENATOR THERRIAULT commented that the only court case he has heard of on redistricting was brought on constitutional grounds and that was covered in HB 145. He asked if he was missing something. MR. BRIGGS replied that he would have to get back to him on redistricting cases and what cases have been granted public interest status and whether they have been statutory or constitutional. But, ...no lawyer worth their salt would file a public interest type case without throwing in some constitutional claims. On the other side of the coin, what you're forestalling is the kind of case, like the domestic violence case I mentioned, where there's a clear statute and somebody is failing to implement it.... We know at least for the next four years there's going to be a large alignment between the majority of this body and the governor, but no one can say what's going to happen after that. It's possible to conceive of a case where a statute you folks pass is not being enforced by the executive branch and then a public interest litigant would want to come in as a private attorney general. And most of the times the court has talked about it, [it] said this is to encourage citizens to act as private attorneys general. SENATOR OGAN said he felt his point was valid and that this raises the level of diligence the Legislature must exercise to keep the other branch in check. CHAIR SEEKINS asked Mr. Briggs if he found anything close to the provisions of Rule 82 in any other state. MR. BRIGGS replied he hadn't, but he hadn't researched it. He felt that was an approach that would upset the tort branch of the bar association. Another approach would be to abrogate Rule 82 so that everyone is not dealing with the fee-shifting rule. CHAIR SEEKINS asked if they weren't just putting public interest litigants in Alaska on the same level they would be on in any other state. MR. BRIGGS replied that is true. SENATOR FRENCH said one category of claims they would be disrupting unintentionally is folks who bring a public interest litigation to enforce zoning laws. Sometimes you have to bring a suit against the city to enforce its own laws to run prostitutes off, to clean up drug houses, to haul off old junk cars and that doesn't strike me as being a constitutional claim. It's simply a matter of municipal ordinance. So, before we pass this out in a big hurry, we should take a look at the possibility that we're interfering with the rights of citizens to live in clean and decent neighborhoods.... SENATOR THERRIAULT motioned to pass CSHB 145(FIN) from committee with individual recommendations and accompanying fiscal notes. Senators French and Ellis objected and Chair Seekins called for a roll call vote. SENATORS French and Ellis voted nay; Senators Therriault, Ogan and Seekins voted yea; and CSHB 145(FIN) passed from committee.