Idaho lawmakers introduce bill to avoid new ‘loser pay’ rule for court cases

February 1, 2017

BOISE - The chairmen of the Idaho House and Senate judiciary committees are co-sponsoring legislation in response to a ruling from the Idaho Supreme Court this fall imposing a new “loser pays” system 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,” said House Judiciary Chairman Lynn Luker, R-Boise, 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 to the prevailing party “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.

The House Judiciary Committee on Wednesday voted unanimously to introduce the bill, clearing the way for a full hearing. Luker is co-sponsoring the bill with Senate Judiciary Chair Patti Anne Lodge, R-Huston.