Legislature(2003 - 2004)

2003-03-03 Senate Journal

Full Journal pdf

2003-03-03                     Senate Journal                      Page 0318
SB 97                                                                                             
SENATE BILL NO. 97 BY THE SENATE RULES COMMITTEE                                                    
BY REQUEST OF THE GOVERNOR, entitled:                                                               
             "An Act relating to public interest litigants and to                                  
             attorney fees; and amending Rule 82, Alaska Rules of                                  
          Civil Procedure."                                                                         
was read the first time and referred to the Resources and Judiciary                                 
The following fiscal information was published today:                                               
 Fiscal Note No. 1, zero, Department of Law                                                         
 Fiscal Note No. 2, indeterminate, Department of Administration                                     
Governor's transmittal letter dated February 28:                                                    
Dear President Therriault:                                                                          
Under the authority of art. III, sec. 18, of the Alaska Constitution, I am                          
transmitting a bill that would change the Alaska Rules of Civil                                     
Procedure as they apply to the award of attorney's fees. First, the bill                            
provides for specific rules that govern the award of attorney's fees to                             
or against certain public interest litigants. The bill does so by                                   
specifically requiring that any award of attorney's fees to or against                              
public interest litigants for cases contesting decisions by the                                     
Department of Environmental Conservation, the Department of Fish                                    
and Game, or the Department of Natural Resources making a coastal                                   
consistency determination, adopting regulations, or in which the public                             
had an opportunity to comment to the agency and seek administrative                                 
review before the agency, be governed by Alaska Rule of Civil                                       
Procedure 82 (Rule 82). The bill would then amend Rule 82 to require                                
that attorney's fees be awarded to or against a public interest litigant in                         
those situations in the same manner as attorney's fees are awarded to                               
or against non-public interest litigants under Rule 82(b). Second, the                              
bill provides, for all litigants, that in the absence of exceptional                                
circumstances, courts may award increased fees only for issues upon                                 
which a party prevailed.                                                                            

2003-03-03                     Senate Journal                      Page 0319
Under Rule 82, attorney's fees are awarded to the prevailing party. By                              
rule, the attorney's fee awards are limited to a specified percentage of                            
the actual fees, with the precise percentage dependent upon a number                                
of factors, including whether the case is contested or goes to trial, and                           
whether or not a money judgment is received. The complexity of the                                  
case and length of trial are among a list of other factors that may be                              
used by the court to vary the size of the award. Upon consideration of                              
a variety of factors, a court may apportion fees based upon the issues                              
and whether a party prevailed. In contrast, current Alaska case law                                 
creates an exception to Rule 82 by which, in most circumstances,                                    
public interest litigants who prevail receive full attorney's fees, with no                         
apportionment by issue, but are not liable for an opposing party's fees                             
if the public interest litigant loses the case.                                                     
The attorney's fee exception for public interest litigants creates several                          
undesirable incentives when decisions of the state are called into                                  
question. First, those seeking to preserve an action of the state have an                           
incentive to avoid litigation because of the possibility of full attorney's                         
fees being awarded against them. This is compounded by the fact that                                
those seeking to overturn actions of the state have an affirmative                                  
incentive to take a chance on doubtful claims because they may win                                  
and earn large rewards in the form of full fees, without the                                        
counterbalancing risk of even partial fees being awarded against them.                              
This is of particular concern in the area of resource development                                   
where well-financed groups have sought to use litigation to impede the                              
state's efforts to proceed with the orderly development of its resources.                           
This bill would redress this imbalance in the narrow group of cases                                 
involving the resource agencies                                                                     
I urge your prompt consideration and passage of this bill.                                          
Frank H. Murkowski