Compass: These 2 Alaskans should be able to petition without paying

By BILL WALKERNovember 1, 2013 

Shortly before Jay Hammond's death in August 2005, I participated in a gas line development dinner at the Hotel Captain Cook. About 30 people attended, including former governors Wally Hickel, Sarah Palin and Hammond.

Jay Hammond had recently written an opinion piece questioning a sitting state senator's ties to Veco. The senator's income from his work for Veco exceeded his legislative salary and Gov. Hammond dared to publicly question the senator's conflict of interest. Soon after I arrived, Gov. Hammond motioned me over and asked, "Bill, you're an attorney, aren't you?" I said I was and he proceeded to tell me, in a shaking voice and with watery eyes that he had a problem and needed advice. He said that day he had received a call from the senator whose loyalties he had questioned. The senator was irate and threatened to sue Hammond for defamation "and take everything you own."

Gov. Hammond explained to me that his concern was not for himself, as he was not well and nothing would probably result from the senator's threat in his lifetime. His concern rather was for his wife, Bella, and that their home in Lake Clark might be taken from her after he was gone.

"Governor," I said, "please don't give those threats another thought." I assured him that should anyone attempt to come after Bella to take her home, Alaskans would not stand for it.

And now here we are eight years later with two elderly great Alaskans, Bella Hammond and Vic Fischer, facing a very real threat of losing their homes because they dared to challenge the wisdom of controversial government decisions.

This disheartening outcome is a result of a unique Alaska policy that the loser pays in litigation. In most other American jurisdictions, each party pays for its own legal fees regardless of the outcome of the case (unless a contract or specific statute provides otherwise). However, in Alaska, a party that loses a lawsuit can be charged with about 30 percent of the prevailing parties' attorneys' fees.

In most circumstances that is a fair outcome that discourages marginal lawsuits. However, in public interest litigation, where a party without a direct economic interest challenges the legality of government conduct on behalf of society as a whole, the risk of having to pay the government's legal bills creates a chilling effect. The First Amendment to the United States Constitution, as well as the state constitution, prohibits the abridgement of the right of a citizen to petition the government for a redress of grievances. This right has long been extended to filing suit against the government, and has led federal courts to refuse to enforce certain statutes that required the payment of the other party's legal fees.

Alaska's loser-pays rule was historically harmonized with the right to petition by the Alaska Supreme Court position that public interest litigants would not be responsible for legal fees if they lost. But the Legislature during the Murkowski administration changed that rule, extending the loser-pays principle to even public interest litigants filing suit against the government.

Regardless of whether you agree with Bella Hammond and Vic Fischer's position on the development of the Pebble mine, they had a right to petition their government and to challenge the legality of its actions in court. It is unconscionable that the exercise of that right could result in their being responsible for hundreds of thousands of dollars in state legal fees. Gov. Parnell and the attorney general have the authority to not seek attorneys' fees as the prevailing party in public interest litigation, and they should exercise that discretion in this and similar cases. If the Parnell administration refuses to do so, hopefully the court system will.

Bill Walker is a lifelong Alaskan running as an independent candidate for governor. He is a businessman and attorney focusing primarily on oil and gas and municipal law. He and his family reside in Anchorage.

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