House bill chills lawsuits against the state

Posted: Friday, May 16, 2003

Lawsuits filed by citizens against the state are a David-vs.-Goliath issue - and David just lost his slingshot, according to Democrats in the Legislature.

Introduced at the request of Gov. Frank Murkowski, House Bill 145 would change a rule set by the Alaska Supreme Court in 1970 that exempts citizens who unsuccessfully sue the state as "public interest litigants" from having to pay part of the state's legal fees.

HB 145 would hold plaintiffs in such cases accountable for paying from 20 percent to 100 percent of the state's legal fees.

Such lawsuits range from environmental issues to subsistence to redistricting. Alaska's public interest litigant rule is the only one of its kind in the country, and Murkowski says it has deterred development projects and costs the state millions to defend itself against frivolous lawsuits.

"Those seeking to overturn action of the state have an affirmative incentive to take a chance on doubtful claims because they may win and earn large rewards in the form of full fees, without the counterbalancing risk of even partial fees being awarded against them," Murkowski said in a letter to Speaker of the House Pete Kott.

The original version of the bill that was introduced early in the session targeted environmental lawsuits against the Department of Environmental Conservation, the Department of Natural Resources and the Department of Fish and Game.

But the bill was expanded last week in the House Finance Committee to include all but constitutional lawsuits. The bill passed the House of Representatives Thursday.

Democrats argue the bill is bad law and received inadequate public review.

Rep. Les Gara, an Anchorage Democrat, said the state Supreme Court instituted the rule to give average citizens access to the courts.

"It was discovered (by the Supreme Court in 1970) that working-class members of the public, small businessman members of the public, poor members of the public wouldn't dare challenge their government in court ... because they were told the moment they walked into their lawyers' office, 'If you lose, you're going to have to pay a lot of money in attorney's fees to the other side,' " Gara said.

Gara also contradicted Murkowski's claims that the rule encourages frivolous environmental lawsuits, noting that 17 of the 19 environmental lawsuits filed under public interest litigant rule in the last decade have been successful.

But Rep. Lesil McGuire, an Anchorage Republican, said the rule has cost the state hundreds of jobs and more than $7 million in attorney's fees over the past 10 years.

House Minority Leader Ethan Berkowitz, an Anchorage Democrat, said the last-minute change making the rule apply to all non-constitutional lawsuits was intended to prevent public comment on the issue.

"This is wrong," Berkowitz said. "It's a railroad job and it's wrong. I know this is a priority piece of legislation for the (administration), but that's not how we do business (in the House)," Berkowitz said during debate on the House floor.

Companion legislation awaits a hearing by the full Senate.

• Timothy Inklebarger can be reached at

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