Legislature(2003 - 2004)

05/05/2004 08:24 AM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
          SB  97-ATTY FEES: PUBLIC INTEREST LITIGANTS                                                                       
CHAIR  SEEKINS informed  members  that  a new  proposed  committee                                                              
substitute (CS), labeled version X, was before the committee.                                                                   
SENATOR THERRIAULT  moved to  adopt version X  for the  purpose of                                                              
discussion. Without objection, the motion carried.                                                                              
SENATOR THERRIAULT  asked how  the issues  of sovereignty  and the                                                              
preservation  of the rights  to appeal  the recent court  decision                                                              
have been addressed in version X.                                                                                               
CHAIR  SEEKINS  said  that  according  to Section  6  on  page  5,                                                              
Sections  2 through 5  of the  act apply  to civil action  appeals                                                              
filed on  or after the  effective date  of the bill,  therefore it                                                              
would not affect the current lawsuit.                                                                                           
SENATOR FRENCH  noted that according  to Section 8,  Sections 5(a)                                                              
and (c) are retroactive to September 11, 2003.                                                                                  
CHAIR  SEEKINS took  an at-ease  from 8:25  a.m. to  8:30 a.m.  He                                                              
then  stated  that  according  to  Section  8,  the  retroactivity                                                              
clause would apply  to the court rules. Section 4  of Version G-2,                                                              
which applied to sovereign immunity, was removed from version X.                                                                
SENATOR THERRIAULT  said he did not feel that  using the sovereign                                                              
immunity approach  to say that the  legislature shall not  pay the                                                              
court  ruling  for  fees,  discussed the  previous  day,  was  the                                                              
preferable  way to  go out  because it  would set  up a  potential                                                              
constitutional   conflict  between   the   legislature  with   its                                                              
appropriation powers, and the judicial branch.                                                                                  
CHAIR SEEKINS agreed.                                                                                                           
SENATOR FRENCH  asked if  the provisions  of Section 2(f)  through                                                              
(i) are identical to legislation passed the previous year.                                                                      
SENATOR THERRIAULT said that is his understanding.                                                                              
SENATOR  FRENCH  noted according  to  the recent  court  decision,                                                              
subsection  (f)  and  (g)  are   unconstitutional.  He  asked  Mr.                                                              
Tillery to respond to that concern.                                                                                             
MR. CRAIG TILLERY,  Assistant Attorney General, Department  of Law                                                              
(DOL),  said  version X  would  still  contain a  two-thirds  vote                                                              
requirement for  a court  rule change, which  was the  primary leg                                                              
upon  which the  court  decision  was based.  He  noted the  court                                                              
decision,  with   respect  to  fees  against  a   public  interest                                                              
litigant,  was also  based  on due  process  and equal  protection                                                              
grounds. He continued:                                                                                                          
     And  to  a large  extent,  that  was responding  to  the                                                                   
     court's  understanding  that  the  legislature  -  of  a                                                                   
     disconnect  between the legislature's  - what they  do -                                                                   
     the legislature's  focus on  natural resource cases  and                                                                   
     the  fact that  the  bill affected  a  broader range  of                                                                   
     cases.  I  haven't  seen  the bill  but  at  least  some                                                                   
     versions  have  made  it  clear   that  the  legislature                                                                   
     understands  that this  does affect  a broader range  of                                                                   
     cases other  than just natural  resource cases.  I don't                                                                   
     know if that's in there.                                                                                                   
CHAIR SEEKINS  interjected to say  that those sections  in version                                                              
X are the same as those in version G-2.                                                                                         
MR. TILLERY replied:                                                                                                            
     Then  there  was something  in  [version] G-2  that  did                                                                   
     make sure that  connection was there so that  would have                                                                   
     to go  back to the court for  it to do that.  Okay, with                                                                   
     that  understanding  now, is  it constitutional?  So  it                                                                   
     would present  the court with a different  concern. Also                                                                   
     ... part  of those statutes  was the attorneys'  fees to                                                                   
     a  public interest  litigant.  The court  ...  indicated                                                                   
     that  they were  not raised.  In the  G-2 version,  that                                                                   
     was split  out and  a severability  clause was added  to                                                                   
     make clear  that the legislature  was treating  those as                                                                   
     separate -  the fees to  a public interest  litigant and                                                                   
     the fees  against so that if  one of those proved  to be                                                                   
     constitutionally  infirm, the  other could still  stand.                                                                   
     And again,  I haven't seen  the version so I  don't know                                                                   
     if that survived or not.                                                                                                   
CHAIR SEEKINS  asked where that  provision was located  in version                                                              
MR. TILLERY  said that was  in Section  2 (f) and (g).  Subsection                                                              
(f) of  the version last  year said the  court or the  state could                                                              
not discriminate  the award of attorneys'  fees to or  against. In                                                              
version G-2,  (f) was made to a  party and (g) was made  against a                                                              
CHAIR SEEKINS asked if that was in Section 2 of version G-2.                                                                    
MR. TILLERY  said what  was originally  combined into  one section                                                              
was divided into  subsections (f) and (g) of Section  2 in version                                                              
MR. TILLERY  said this  version, as opposed  to HB 145,  clarifies                                                              
that  should the  court  determine that  the  award of  attorneys'                                                              
fees  against  a  public  interest  litigant  is  constitutionally                                                              
defective, the legislature's  decision regarding fees  to a public                                                              
interest litigant may still stand.                                                                                              
SENATOR  FRENCH pointed  to  Section 4  on  page 4  of version  X,                                                              
regarding attorneys' fees and costs.                                                                                            
CHAIR SEEKINS interjected  to say that Section 4 was  Section 5 in                                                              
version G-2.                                                                                                                    
SENATOR  FRENCH asked  if  everyone is  operating  on the  premise                                                              
that  section  4  is  aimed at  subsistence  cases  and  what  the                                                              
drafter's intent was.                                                                                                           
SENATOR  THERRIAULT  said his  understanding  is  that section  is                                                              
aimed at subsistence cases.                                                                                                     
SENATOR FRENCH asked Mr. Tillery if he agrees that language                                                                     
creates a far weaker standard than the one the state has been                                                                   
operating under for some time. He noted:                                                                                        
     The  standard here is  that you'll  get your  attorneys'                                                                   
     fees  if   you  do  not   otherwise  have  an   economic                                                                   
     incentive to  bring the case.  That seems to  imply that                                                                   
     if you  have any economic  incentive to bring  the case,                                                                   
     then you  can't be a  public interest litigant,  but the                                                                   
     standard  we've been working  under is quite  different.                                                                   
     The  standard   we've  been  working  under   says  your                                                                   
     economic  incentive  must  be  sufficient  incentive  to                                                                   
     file a  suit in order to  fail. So, that is,  you've got                                                                   
     to  have a  sufficient economic  incentive  to bring  it                                                                   
     for  money reasons,  and  if  you have  that  sufficient                                                                   
     incentive, then  you're not a public  interest litigant.                                                                   
     Mr.  Tillery,   I'd  be   interested  in  hearing   your                                                                   
     comments on that change in standards.                                                                                      
MR. TILLERY commented that he believes a court would construe                                                                   
that similarly to the way it now considers an economic incentive                                                                
with regard to public interest litigant criteria. He stated:                                                                    
     In fact, this  provision is actually more  beneficial to                                                                   
     a public  interest litigant than the  current court-made                                                                   
     policy  in that  it  does not  require  the other  three                                                                   
     factors.  It doesn't  require a large  number of  people                                                                   
     to  be  affected and  it  doesn't  require an  issue  of                                                                   
     great public  importance and so forth. It  only really -                                                                   
     if you  fit within -  if it's an  appeal from  this kind                                                                   
     of a case,  and if you don't have an  economic incentive                                                                   
     - and I  certainly agree, you could construe  - it could                                                                   
     be argued  that that is a  tougher standard but -  and I                                                                   
     don't  know what  the drafter's  intentions  were but  I                                                                   
     don't believe  a court would  construe it as  tougher. I                                                                   
     think  the court  would view  it as  too extensive  with                                                                   
     its public interest litigant criteria.                                                                                     
SENATOR FRENCH then questioned whether the drafter's intent is                                                                  
to weaken or maintain the standard.                                                                                             
SENATOR THERRIAULT deferred to the drafter to answer that                                                                       
CHAIR SEEKINS  agreed to  contact the drafter.  He then  asked Mr.                                                              
Tillery whether  he sees this provision  as creating a  tougher or                                                              
weaker standard to award attorneys' fees.                                                                                       
MR. TILLERY said  it comes down to a question of  intent and noted                                                              
that  the constitutional  exception  uses  different language:  it                                                              
says the claimant  does not have sufficient economic  incentive to                                                              
bring the  action or  appeal regardless  of constitutional  claims                                                              
involved. The language  [in version X] is drafted  differently. He                                                              
explained  that  if  the  drafter's  intent is  to  use  the  same                                                              
standard, using the same language would be useful.                                                                              
CHAIR SEEKINS  asked if  subsistence is  not an economic  interest                                                              
but is an interest of meeting the protein needs of one's family.                                                                
MR. TILLERY replied,  "Mr. Chairman ... this section  is not, as I                                                              
read  it,  is not  directed  solely  at  subsistence so  it  would                                                              
include any  actions of  the Board  of Fisheries  or the  Board of                                                              
SENATOR FRENCH  asked why Sections  5(a) and  (c) need to  be made                                                              
retroactive to September 11, 2003.                                                                                              
CHAIR  SEEKINS asked  Mr.  Tillery  if there  is  any reason  from                                                              
DOL's perspective.                                                                                                              
MR.  TILLERY  said he  was  again  at  a disadvantage  as  he  was                                                              
looking at an older version of the bill.                                                                                        
CHAIR SEEKINS  announced an  at-ease from 8:43  a.m. to  8:48 a.m.                                                              
He  then asked  the  drafter,  Jerry  Luckhaupt, to  walk  members                                                              
through the bill.                                                                                                               
MR. JERRY  LUCKHAUPT, legal counsel,  Legal and Research  Services                                                              
Division, asked that Mr. Balash address the first question.                                                                     
MR. JOE BALASH, staff to Senator Therriault, told members:                                                                      
     In looking  at the provision  on Title 16, what  we were                                                                   
     attempting to  do was allow for the appeal  of the Board                                                                   
     of  Game,   Board  of  Fish  decisions   for  individual                                                                   
     subsistence  and  personal   use  users.  We  wanted  to                                                                   
     cleave away  those who had  a large economic  incentive,                                                                   
     like a commercial  fish harvester or processor  or a big                                                                   
     game  guide and  sort of  take  those folks  out of  the                                                                   
     equation.  And so, while  the intent  may not have  been                                                                   
     to create a  necessarily weaker standard for  a litigant                                                                   
     to qualify for  full fees, that's how it  came back and,                                                                   
     after  thinking  about it  a  little  bit, I  guess  the                                                                   
     question is  for the committee  - do you want,  in order                                                                   
     to protect subsistence  users, do you want  to give them                                                                   
     a  little  bit  lower  bar because  you  find  that  the                                                                   
     benefits  and the  privilege and  right for  subsistence                                                                   
     users  who depend  on  their  food to  be  a little  bit                                                                   
CHAIR SEEKINS  said he had no problem  with that as long  as it is                                                              
done on an  individual basis, so  that the bill will not  create a                                                              
lower bar  for a  whole new class  of people.  He said  that would                                                              
allow those  people who  depend on the  resource to  challenge the                                                              
ability of  their families  to do  so. He  asked Mr. Luckhaupt  if                                                              
the  bill  was  drafted  clearly   enough  so  that  it  addresses                                                              
individual cases and not class action lawsuits.                                                                                 
MR. LUCKHAUPT  said  it will not  preclude groups  of people  from                                                              
gathering together to challenge those decisions. He continued:                                                                  
     And nominally  even in a  class action, you're  going to                                                                   
     have nominal  plaintiffs -  you're going  to have  to go                                                                   
     out  and find a  plaintiff, a  particular person  that's                                                                   
     affected and  name them and then you certify  your class                                                                   
     action  afterwards  so, you  know, it  doesn't  preclude                                                                   
     those  types  of  actions  but to  the  extent  that  it                                                                   
     involves  groups or organizations  or corporations  that                                                                   
     have an economic  incentive either in the  fishery or in                                                                   
     harvesting  the resource,  then it  should be  precluded                                                                   
     under this.                                                                                                                
CHAIR SEEKINS asked  if the bill could be drafted  to clarify that                                                              
it is  intended for those  people who depend  on the  resource for                                                              
sustenance as part of that process.                                                                                             
MR.  LUCKHAUPT assumed  he could  be more  specific but  cautioned                                                              
the more  specific the language,  the more potential  for problems                                                              
such  as equal  protection because  it would  create benefits  for                                                              
one  smaller group  that are  denied  to others.  He advised  that                                                              
sufficient  justification  would  have  to be  provided  for  that                                                              
decision.  He  added, "That  may  be  that,  you know,  these  are                                                              
people  that   you've  decided   depend  upon  the   resource  for                                                              
sustenance and that  may be a good enough reason.  I don't know. A                                                              
court  will decide  that based  upon the  sliding scale  approach,                                                              
the equal protection approach."                                                                                                 
CHAIR SEEKINS  responded that in  looking at how Title  16 applies                                                              
right now, as far  as game is concerned, almost  every resident is                                                              
considered to  be a  subsistence user because  of the  tier system                                                              
that  applies to  all  residents on  an equal  basis.  He said  he                                                              
would have no problem  saying that those people who  depend on the                                                              
resource to  feed their  families should be  entitled to  the full                                                              
award  of fees  for  actions taken  by  the Board  of  Game as  he                                                              
believes  that  is  consistent  with  what  is  considered  to  be                                                              
subsistence.  The Boards  of Game  and Fisheries  have, under  the                                                              
current   system,  a   primary  responsibility   to  provide   for                                                              
subsistence uses.  He commented, "We do have  the highest priority                                                              
for  the uses  of the  resource to  be subsistence  and for  those                                                              
people  who are  using  the  courts to  be  able to  protect  that                                                              
right,  that they  have  the ability  to  recover full  attorneys'                                                              
fees. Now  would that  make it easier  to justify  it in  terms of                                                              
equal protection under the Constitution?"                                                                                       
MR. LUCKHAUPT  said that providing  for people's  basic sustenance                                                              
would be a fairly substantial justification.                                                                                    
CHAIR  SEEKINS referred  to  page  4 and  asked  Mr. Luckhaupt  to                                                              
provide    a   conceptual    amendment    for   the    committee's                                                              
SENATOR  THERRIAULT asked  for an  answer to  the question  [about                                                              
retroactivity] in Section 8.                                                                                                    
SENATOR FRENCH  reiterated his question  of why Sections  5(a) and                                                              
(c) would be retroactive to September 11, 2003.                                                                                 
MR.  BALASH  replied   that  he  could  not  remember   the  exact                                                              
effective date  of HB 145  but he believed  it was  sometime after                                                              
September  11.  He  explained  that   the  litigation  that  Judge                                                              
Collins ruled on  was filed in Superior Court the  day before that                                                              
law [HB 145]  went into effect. Therefore, September  11 was prior                                                              
to the date that case was filed.                                                                                                
SENATOR FRENCH  asked if the  intent of Section  8 is to  cure the                                                              
defects Judge  Collins found in the  law by making this  bill take                                                              
effect before HB 145 went into effect.                                                                                          
MR. BALASH believed that was correct.                                                                                           
MR. LUCKHAUPT responded:                                                                                                        
      ...That's sort of that view - while the legislature                                                                       
     did not agree that there was a defect with a change to                                                                     
     the   court   rule   affecting   attorneys'   fees   was                                                                   
     procedural,  if it  was,  basically  the legislature  in                                                                   
     portions of this  bill is attempting to go  back and say                                                                   
     the  time that  bill was  passed -  here's a  two-thirds                                                                   
     vote.... And so  it's up to the court to  decide whether                                                                   
     they  can relate  back or  not. I'm  doubtful that  that                                                                   
     could  occur. I'm doubtful  that any  new provisions  we                                                                   
     enact now, that  we could somehow relate those  back. In                                                                   
     fact I'm pretty sure that wouldn't happen.                                                                                 
SENATOR  THERRIAULT pointed  out  that the  committee discussed  a                                                              
section that  stripped out  the old  statute, which precluded  the                                                              
legislature  and administration's  right to  continue to appeal  a                                                              
lower court's ruling.  That section was removed so  that right has                                                              
been preserved.  Therefore, if the legislature  and administration                                                              
want  to  further  litigate  that   issue,  that  right  has  been                                                              
CHAIR  SEEKINS asked  Mr. Luckhaupt  and  Mr. Balash  to draft  an                                                              
amendment  to Section  4 to make  sure it  applies to  subsistence                                                              
users on  an individual basis, which  he would introduce  later in                                                              
the process.  He then  closed public testimony,  as there  were no                                                              
more participants.                                                                                                              
SENATOR  THERRIAULT pointed  out that  he requested  a new  fiscal                                                              
note from the Administration, which was delivered that morning.                                                                 
CHAIR SEEKINS stated the new fiscal note is a zero fiscal note.                                                                 
SENATOR FRENCH  asked how  much has been  spent to date  defending                                                              
the previous law in court.                                                                                                      
CHAIR SEEKINS  indicated that Mr.  Marcus [of DOL] was  unaware of                                                              
the cost.                                                                                                                       
SENATOR  THERRIAULT   moved  CSSB  97(JUD)  from   committee  with                                                              
individual recommendations and its attached zero fiscal note.                                                                   
SENATOR FRENCH objected.                                                                                                        
The  motion  to move  CSSB  97(JUD)  carried with  Senators  Ogan,                                                              
Therriault and Seekins in favor, and Senator French opposed.                                                                    

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