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Alaska passes bill to limit public interest litigant attorney's fees
Kristen Nelson, Petroleum News Editor-in-Chief
Alaska House Bill 145, an administration bill “prohibiting discrimination in the awarding of attorney fees and costs in civil actions,” passed and is awaiting transmittal to the governor. This bill went through a number of changes. The final version bans any discrimination in awarding of attorney's fees to public interest litigants except in cases involving constitutional issues.
Debate on the Senate floor May 20 gave a flavor of the issues in this hard-fought partisan vote.
Bill will hurt non-constitutional claims Hollis French, D-Anchorage, said “the bill purports to try to ward off increased litigation, to try to ward off arguments made with little merit, to try to push down those vexatious lawsuits that are brought representing citizens and concerned groups — frequently against the government.”
French said he thinks litigants in natural resource cases will continue to bring their claims, and will bring them under the state constitution “and I expect that some future court is going to rule that those are constitutional claims which allow them to recover their attorney's fees either way the case comes out.”
He said the bill will hurt those with non-constitutional claims that we should support and cited cases ranging from the Spenard Action Committee which sued the Municipality of Anchorage to enforce zoning laws against prostitution, to Alaska Gun Collectors vs. State of Alaska and Tony Knowles, brought by Wayne Anthony Ross on behalf of Alaskans objecting to government destroying guns confiscated by law enforcement.
French also said he thinks the bill “is going to wind up straight in court in a great big hurry” because, he said, the bill is a court rule change, but doesn't meet the requirement of stating that it is a court rule change.
“We haven't made that statement,” he said. “We're purporting to change the rules. The supreme court's going to toss this one out on its ear.” Not a legislative doctrine Robin Taylor, R-Wrangell, said awarding of attorney's fees to public interest litigants is a doctrine established by the courts, not “by any legislative body or even our Congress.”
He related asking the under secretary of the U.S. Department of Agriculture how much the U.S. Forest Service paid out in one year on suits that it won. The answer: $40 million, “in legal fees on public interest litigants who had their case defeated when they got to court.”
Alaska law, Taylor said, provides “attorney's fees and costs for the prevailing party. This is a system that has a very, very chilling effect upon people bringing specious litigation,” he said.
For example, he said, Alaska's Attorney General is going after the litigants in the Miller's Reach fire case to recover the $2.5 million the state spent defending the case.
“I think that has a major chilling impact on frivolous litigation and is a very healthy thing,” he said.
But with public interest litigants, “you have court-made law that in fact provides the opposite public policy,” Taylor said. It encourages people to bring specious suits in the hope not only of prevailing and stopping a project, but of delaying it, he said. Public interest litigants lost when they sued to stop a timber sale, lost in trial court and lost on appeal, Taylor said, but defending the suit cost the lumber company so much money that even though it won in the end it abandoned the project.
“That was public interest litigation. That's what public interest litigation can do, if you're a zealot, if you want to misuse the legal system and if you want to use it as a harassment tool for your own ends and purposes,” he said.
Taylor said he shared his colleague's concern that the bill could have “a chilling effect on litigation that may be very important to all of us on reapportionment” or on other social issues.
But important cases will find support, he said, and public interest litigants should be putting up bonds to compensate for lost opportunity if they are wrong.
“I'm enough of a civil libertarian to be torn on this issue,” Taylor said, “but I'm enough of a realist that we have to do something in this instance. This is the only piece of legal reform legislation that I'll be supporting this year,” he said. No abolishment Ralph Seekins, R-Fairbanks, said the bill does not abolish public interest litigant status. What the bill does, he said, is put “public interest litigants on an equal footing with anyone else that brings an action and they now have the risk, if they lose, of having to pay.”
Under current law public interest litigants are entitled to full attorney's fees “even if they have multiple issues and they only win on one issue,” he said. There are no fees against them if the lose. And even if they lose, they may still get full attorney's fees if later the agency changes its practices in a way similar to what they advocated. “Nowhere else in the law is someone allowed that kind of regard for bringing action,” Seekins said.
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