S 0490 General Bill, By McConnell, Martin, Peeler, Leventis, Ryberg, Knotts, 
Ford, Campsen and Vaughn
 A BILL TO AMEND SECTION 15-77-300, CODE OF LAWS OF SOUTH CAROLINA, 1976,
 RELATING TO ALLOWANCE OF ATTORNEY'S FEES IN STATE-INITIATED ACTIONS, SO AS TO
 LIMIT THE FEE TO A REASONABLE HOURLY RATE.

   02/27/07  Senate Introduced and read first time SJ-3
   02/27/07  Senate Referred to Committee on Judiciary SJ-3
   03/01/07  Senate Referred to Subcommittee: Moore (ch), Ford,
                     Mescher, Rankin, Scott
   01/24/08  Senate Referred to Subcommittee: Martin (ch), Ford,
                     Ritchie, Knotts, Cleary
   03/05/08  Senate Committee report: Majority favorable with amend.,
                     minority unfavorable Judiciary SJ-11
   03/25/08  Senate Special order, set for March 25, 2008 SJ-9
   03/26/08  Senate Committee Amendment Amended and Adopted SJ-28
   03/26/08  Senate Amended SJ-28
   03/26/08  Senate Read second time SJ-28
   04/01/08  Senate Read third time and sent to House SJ-30
   04/01/08  House  Introduced and read first time HJ-11
   04/01/08  House  Referred to Committee on Judiciary HJ-11
   05/14/08  House  Committee report: Favorable with amendment
                     Judiciary HJ-3
   05/20/08  House  Requests for debate-Rep(s). Hart, Sellers, Hosey,
                     Breeland, Harvin, Cato, Cooper, Mulvaney, MA
                     Pitts, Duncan, Sandifer, Lucas, Agnew,
                     Herbkersman, Jefferson, GM Smith, Scott,
                     Clyburn, Crawford, Leach, Bedingfield, and Allen HJ-37
   05/22/08  House  Requests for debate removed-Rep(s). Scott HJ-76
   05/22/08  House  Requests for debate removed-Rep(s). Hart HJ-97
   05/22/08  House  Requests for debate removed-Rep(s). Breeland,
                     Hosey, Leach, Clyburn, Cato, Jefferson, Lucas,
                     Cooper, Crawford, Bedingfield, Sellers,
                     Sandifer, GM Smith, Herbkersman, Duncan and
                     Harvin HJ-98
   05/28/08  House  Debate interrupted HJ-65
   05/28/08  House  Requests for debate-Rep(s). Sellers, Cooper,
                     Cato, Crawford, Herbkersman, Weeks, Mulvaney,
                     Umphlett, Merrill, Jefferson, Clyburn, Gullick,
                     Shoopman, and Leach HJ-74
   05/28/08  House  Amended HJ-243
   05/28/08  House  Read second time HJ-249
   05/28/08  House  Roll call Yeas-90  Nays-0 HJ-249
   05/29/08  House  Read third time and returned to Senate with
                     amendments HJ-40

Indicates Matter Stricken

Indicates New Matter

AMENDED

May 28, 2008

S. 490

Introduced by Senators McConnell, Martin, Peeler, Leventis, Ryberg, Knotts, Ford, Campsen and Vaughn

S. Printed 5/28/08--H.

Read the first time April 1, 2008.

TO AMEND SECTION 15-77-300, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO ALLOWANCE OF ATTORNEY'S FEES IN STATE-INITIATED ACTIONS, SO AS TO LIMIT THE FEE TO A REASONABLE HOURLY RATE.

Amend Title To Conform

Be it enacted by the General Assembly of the State of South Carolina:

SECTION    1.    Section 15-77-300 of the 1976 Code is amended to read:

"Section 15-77-300.    (A)    In any civil action brought by the State, any political subdivision of the State or any party who is contesting state action, unless the prevailing party is the State or any political subdivision of the State, the court may allow the prevailing party to recover reasonable attorney's fees to be taxed as court costs against the appropriate agency if:

(1)    The the court finds that the agency acted without substantial justification, in law and fact, in pressing its claim against the party; and

(2)    The the court finds that there are no special circumstances that would make the award of attorney's fees unjust.

    The agency is presumed to be substantially justified in pressing its claim against the party if the agency follows the mandate of state law that has not been invalidated by a court of competent jurisdiction.

(B)    Attorney's fees allowed pursuant to subsection (A) must be limited to a reasonable time expended at a reasonable rate. Factors to be applied in determining a reasonable rate include:

(1)    the nature, extent, and difficulty of the case;

(2)    the time devoted;

(3)    the professional standing of counsel;

(4)    the beneficial results obtained; and

(5)    the customary legal fees for similar services.

    The judge must make specific written findings regarding each factor listed above in making the award of attorney's fees. The provisions of this subsection do not apply to an attorney's fees award paid to an attorney representing a landowner in a condemnation proceeding as provided for in Sections 28-2-510 or 57-5-320.

(C)    In no event shall a prevailing party be allowed to shift attorney's fees pursuant to this section that exceed the fees that the party was contracted to pay counsel for work on the litigation.

(D)    The provisions of this section do not apply to civil actions relating to the establishment of public utility rates, disciplinary actions by state licensing boards, habeas corpus or post conviction relief actions, child support actions, except as otherwise provided for herein, and child abuse and neglect actions, and challenges concerning the constitutionality of an act of the General Assembly."

SECTION    2.    (A)    The Insurance Reserve Fund is authorized to expend funds necessary to resolve the outstanding fee award judgment entered by the South Carolina Supreme Court against the defendants in Layman, et al. vs. The State of South Carolina, et al. Any funds expended by the Insurance Reserve Fund to resolve this fee award judgment must be reimbursed with lost earnings as calculated by the State Treasurer as provided pursuant to subsection (B) of this section.

(B)    The Comptroller General is authorized and directed to reimburse the Insurance Reserve Fund for any funds it expends and lost earnings to resolve the fee award judgment entered by the State Supreme Court in Layman, et al. vs. The State of South Carolina, et al. Notwithstanding any other provision of law, the source of funds the Comptroller General shall use for reimbursement are state funds lapsed or remitted to the general fund of the State at the end of fiscal year 2007-2008. Reimbursement of the Insurance Reserve Fund is the first priority for these lapsed and remitted funds regardless of any provisions of law to the contrary including provisions of the annual general appropriation act for fiscal year 2008-2009. To the extent that this identified fund source is inadequate to reimburse the Insurance Reserve Fund, the Comptroller General is directed to reduce the percent of agency appropriations that may be carried forward under the authority of Part IB, General Provisions of the general appropriations act that allows agencies to carry forward up to ten percent of their general funds.

SECTION    3.    This act takes effect upon approval by the Governor.