Citizens Coalition for Tort Reform, Inc. v. McAlpine

810 P.2d 162, 1991 Alas. LEXIS 29, 1991 WL 63838
CourtAlaska Supreme Court
DecidedApril 26, 1991
DocketS-3714
StatusPublished
Cited by48 cases

This text of 810 P.2d 162 (Citizens Coalition for Tort Reform, Inc. v. McAlpine) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Citizens Coalition for Tort Reform, Inc. v. McAlpine, 810 P.2d 162, 1991 Alas. LEXIS 29, 1991 WL 63838 (Ala. 1991).

Opinion

OPINION

BURKE, Justice.

In this case the lieutenant governor denied certification of an initiative that would have set maximum allowable levels of attorney’s fees in personal injury cases. The lieutenant governor found that the initiative was an attempt to prescribe a rule of court, a subject that the Alaska Constitution expressly restricts from the people’s power to legislate by initiative. On a motion for summary judgment, the superior court upheld the lieutenant governor’s decision. We affirm.

I

In August 1987, Citizens Coalition for Tort Reform, Inc. (“Coalition”) filed with Lieutenant Governor McAlpine an application for certification of an initiative entitled: “An Act relating to civil liability; and relating to contingency agreements in connection with personal injury actions.” 1 Sections 1 and 2 of the initiative proposed to alter the statutory law governing apportionment of damages and contribution among tortfeasors. Section 3 of the initiative proposed to add the following new statute to AS 09.17:

(a) An attorney shall not contract for or collect a contingency fee for representing any person seeking damages in connection with an action for personal injury in excess of the following limits:
(1) Thirty-three and one-third percent of the first one hundred thousand dollars ($100,000) recovered;
(2) Twenty-five percent of the next one hundred thousand dollars ($100,-000) recovered;
(3) Ten percent of any amount on which the recovery exceeds two hundred thousand dollars ($200,000).
Such limitations shall apply regardless of whether the recovery is by settlement, arbitration, or judgment, or whether the person for whom the recovery is made is a responsible adult, an infant, or a person of unsound mind.
(b) For purposes of this section:
(1) “Recovered” means the net sum recovered after deducting any disbursements or costs incurred in connection with prosecution or settlement of the claim. Costs of medical care incurred by the plaintiff and the attorney’s office overhead costs or charges shall not be deductible disbursements or costs for such purposes.

After reviewing the initiative and a legal opinion on the initiative prepared by the attorney general, the lieutenant governor denied certification on October 11, 1987. *164 The basis of denial was that the proposed regulation of attorney’s fees in section 3 of the initiative constituted an attempt to prescribe a rule of court, a subject that both Article XI, section 7 of the Alaska Constitution and AS 15.45.010 restrict from the people’s power to legislate by initiative. 2

In November 1987, the Coalition filed a complaint in superior court seeking a temporary restraining order that would direct the lieutenant governor to certify the initiative and to prepare the initiative petitions. The Alaska Academy of Trial Lawyers (“AATL”) intervened in the action, and they and the attorney general, appearing on behalf of the lieutenant governor, filed answers to the Coalition’s complaint. After oral argument, the trial court denied the Coalition’s motion for a temporary restraining order. We denied the Coalition’s petition for review in December 1987.

The Coalition removed section 3 from the initiative and resubmitted it to the lieutenant governor, who certified it in that form. The voters adopted that truncated version of the initiative at the 1988 general election. Soon after the election, in February 1989, the Coalition resumed litigation over the lieutenant governor’s refusal to certify the initiative in its original form by filing for summary judgment in the superior court. The Coalition sought a ruling that section 3 of the original initiative did not propose to enact a constitutionally or statutorily restricted court rule. The state and AATL filed cross motions for summary judgment. In August 1989, the superior court, Judge Karen L. Hunt, held that section 3 of the Coalition’s original initiative was “an attempt to prescribe a rule of Court, as that phrase is used in Article 11, Section 7, of the Constitution.” Accordingly, the court denied the Coalition’s motion and granted both cross motions. The superior court also awarded partial attorney’s fees to the state and to AATL. The Coalition appealed.

II

The primary dispute in this case presents two related questions of law. First, we must decide whether a limit on attorney contingent fees is necessarily classifiable as a rule of court. Second, if a contingent-fee limit is a rule of court, we must decide whether article XI, section 7 of the constitution removes such a rule from the scope of the people’s power to legislate by initiative. We address each issue in turn. 3

A

As a threshold matter, the lieutenant governor and the superior court both decided that section 3 of the Coalition’s proposed initiative constituted an attempt to prescribe a rule of court. On appeal, the state and AATL argue that the decisions below on this point were correct. In essence, those decisions and appellees' arguments all rely upon the conclusion that it is within this court’s rule-making authority to prescribe a limit on contingent fees.

It is true that this court possesses extensive rule-making authority. The sources of that authority are two separate provisions *165 of the state constitution. Article IV, section 15 of the constitution states:

Rule-Making Power. The supreme court shall make and promulgate rules governing administration of all courts. It shall make and promulgate rules governing practice and procedure in civil and criminal cases in all courts. These rules may be changed by the legislature by two-thirds vote of the members elected to each house.

Alaska Const, art. IV, § 15. The court’s rule-making power under this section is explicitly broad and very nearly complete. Id.; see also Channel Flying, Inc. v. Bernhardt, 451 P.2d 570, 575 (Alaska 1969) (legislature has no power to make rules governing practice and procedure in civil and criminal cases, only power to change court-made rules by two-thirds vote).

This court also obtains rule-making authority from article IV, section 1 of the constitution, which states:

Judicial Power and Jurisdiction. The judicial power of the State is vested in a supreme court, a superior court, and the courts established by the legislature. The jurisdiction of courts shall be prescribed by law. The courts shall constitute a unified judicial system for operation and administration. Judicial districts shall be established by law.

Alaska Const, art. IV, § 1. The court’s rule-making authority under this section is inherent in the judicial power vested in it, as the supreme court of the state.

One inherent judicial power that we have exercised repeatedly is the power to regulate the practice of law in the state.

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Cite This Page — Counsel Stack

Bluebook (online)
810 P.2d 162, 1991 Alas. LEXIS 29, 1991 WL 63838, Counsel Stack Legal Research, https://law.counselstack.com/opinion/citizens-coalition-for-tort-reform-inc-v-mcalpine-alaska-1991.