Attorney-fee bill clears House on 61-8 vote, heads to Senate

The Idaho House has voted 61-8 in favor of HB 97 , the legislation to keep Idaho’s current rule for when attorney fees should be awarded to the prevailing party in a civil case – rather moving to a new “loser-pay” system on March 1. The Idaho Supreme Court, in a ruling this past fall, set the new rule to take effect on that date unless lawmakers take action.

Rep. Lynn Luker, R-Boise, explained that numerous laws define when fees should be awarded in specific types of cases, but the law at issue is a “catch-all” provision for when none of those apply. For the past 38 years, the rule in Idaho has been that fees are awarded to the prevailing party “when there is a claim or defense that is brought unreasonably, frivolously, or without foundation,” Luker said. The bill restores that standard.

If lawmakers didn’t act, the new standard would be that courts would award fees to the prevailing party “when justice so requires,” an as-yet undefined standard that is expected to be interpreted as almost always.

House Majority Leader Mike Moyle, R-Star, spoke out against the bill. “Generally when I know a bill is going to sail out of this building, I should shut up and vote ‘no,’” he told the House. But he said he wanted to share his concern. Moyle told a story: “A lady went to the pharmacist one day, said ‘I need some cyanide.’ The pharmacist got all nervous,” asking what she needed cyanide for, and warning of its danger. “So the lady quietly listened, reached into her purse and pulled out a picture of her husband in bed with the pharmacist’s wife. The pharmacist replied, ‘I didn’t know you had a prescription.’”

Moyle said he’s concerned that a rancher who’s having financial trouble could fall victim to a neighbor who tries to take over his place, and sues, ties it up in court, and even though losing, costs the rancher lots of money. “They’re broke and they lost it all,” he said. “Winning brought them nothing. … I’m not comfortable that this is the answer.” He said instead of saying judges “may” award attorney fees in frivolous cases, the bill perhaps should say “shall.” “If it is frivolous, doggone it, make ‘em pay the attorney fees,” Moyle said. He added, “I don’t know what the answer is; I’m not on Judiciary & Rules. I’m just a dirt farmer. I’m going to vote ‘no’ and I feel a little better now that I’ve told you my little story.”

Rep. Greg Chaney, R-Caldwell, responded, “I think frivolousness is the appropriate standard. … It’s the frivolous cases we’re worried about there, and it’s the frivolous cases that this bill addresses.”

In the 61-8 vote, the only “no” votes came from Reps. Moyle, Armstrong, Boyle, Gestrin, Holtzclaw, Mendive, Monks and Palmer. The bill now moves to the Senate side; it’s co-sponsored by Luker, the House Judiciary chairman, and Sen. Patti Anne Lodge, R-Huston, the Senate Judiciary chair. Luker told the House, “It’s got brought support out there.”