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Eye On Boise

House Judiciary introduces bill to keep current attorney fee rules, avoid new ‘loser pay’ system for civil cases

Rep. Lynn Luker, R-Boise (Betsy Z. Russell)
Rep. Lynn Luker, R-Boise (Betsy Z. Russell)

The House Judiciary Committee voted unanimously today to introduce legislation proposed by its chairman, Rep. Lynn Luker, R-Boise, in response to a ruling from the Idaho Supreme Court this fall imposing a new “loser pays” rule for attorney fees in civil cases – if lawmakers don’t act before March 1. “This bill simply restores that rule we’ve had for the last 30 years,” he said, calling for attorney fees to be awarded only “if the claim was brought frivolously or without foundation or unreasonably.”

Luker noted that the courts imposed that as the rule in 1979 due to uncertainty about what standard applied, under a 1976 law that left the matter of attorney fee awards entirely to the discretion of the courts. “There’s different perspectives about how that happened,” said Luker, an attorney. “Some would say that it was a usurpation of legislative authority. Others would say that the court took the discretion that was given them in that statute and put their own sideboards on it.”

In their decision this fall, the Idaho Supreme Court set a new standard: That courts should award attorney fees “when justice so requires.” Luker said that’s an uncertain standard with no case law that defines it. Many – including the court’s minority in the case, led by current Chief Justice Roger Burdick – said it would lead to a system in which the loser virtually always has to pay the winning side’s attorney fees, creating a “chilling effect” on anyone going to court because of the risk of huge costs.

Rep. Ron Nate, R-Rexburg, asked, “In practice, or maybe in law, is there a measurable or a marked difference between the words ‘frivolouly, unreasonably or without foundation’ and the phrase ‘when justice so requires?’”Luker said the longstanding rule about frivolous claims is “more of a known quantity,” vs. “a new standard that the courts haven’t dealt with.”

The committee voted unanimously to introduce the bill, clearing the way for a full hearing. Luker is co-sponsoring the bill with Sen. Patti Anne Lodge, R-Huston, chair of the Senate Judiciary Committee.

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Betsy Z. Russell
Betsy Z. Russell joined The Spokesman-Review in 1991. She currently is a reporter in the Boise Bureau covering Idaho state government and politics, and other news from Idaho's state capital.

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