Court to decide fee for lawsuit challenge

Posted: Tuesday, November 15, 2005

ANCHORAGE - Environmental, tribal, Native and political organizations are awaiting an Alaska Supreme Court decision on their challenge of a state law that keeps the state from paying attorneys' fees in public interest lawsuits.

In oral arguments before the Supreme Court last Wednesday, attorneys for the half-dozen groups suing the state said the 2003 law would deter lawsuits that challenge bad policies and the decisions of state agencies.

Before the change, individuals or groups were exempted from Alaska's "loser pays" rule if their legal challenges are intended to encourage strong public policies that benefit large numbers of people.

The state Legislature attempted to override that rule, with proponents of the change saying the rule encouraged frivolous lawsuits with little chance of success.

The Supreme Court will consider the arguments and issue a decision later. It sometimes takes a year or longer.

The system the Legislature was trying to change, Assistant Attorney General Christopher Kennedy and other state attorneys argued, allowed public interest groups to file lawsuits "where they could raise myriad arguments with no fear of consequences and great hope of reward."

In briefs filed with the Supreme Court, Kennedy and the other attorneys said the state paid an average of about $826,000 a year to private attorneys in public interest cases over an 11-year period. That averages to about $200,000 per case.

Plaintiffs' attorney Thomas Waldo said the public interest lawsuits generally don't aim to claim damages from the government; they sue to challenge an action or policy or law they believe is bad for the public or the environment.

Alaska is the only state that generally requires losing sides in civil lawsuits to pay the winner's legal fees. Without the public interest exemption here, individuals or groups could be deterred from filing important lawsuits, Waldo said.

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