Legislature(2003 - 2004)

05/18/2003 10:10 AM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
    CSHB 145(FIN)-ATTY FEES/ BOND: PUBLIC INTEREST LITIGANT                                                                 
CHAIR   SEEKINS   announced   CSHB   145(FIN)  to   be   up   for                                                               
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                                                               
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                                                               
     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                                                                    
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                                                                    
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.                                                                 

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