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Legislation proposed to protect public litigants

By Rhonda McBride 6:24 AM December 20, 2013

Sen. Bill Wielechowski, (D) Anchorage, wants to overturn a 2003 law which allows the winners in public interest lawsuits to collect legal fees from the losers.

ANCHORAGE – An Anchorage state senator believes Alaskans should have the right to sue the state without fear of financial ruin, so he is introducing legislation to protect these rights.

Sen. Bill Wielechowski, (D) Anchorage, wants to overturn a law signed by former Gov. Frank Murkowski in 2003, which allows the winners in public interest lawsuits to collect legal fees from the losers.

“Alaska is the only state in the country where the losers have to pay the winner’s attorneys’ fees,” Wielechowski said. “It has a real chilling effect on the ability of people to challenge government.”

Public interest litigation is narrowly defined, Wielechowski said.

“If you’re a public interest litigant, you have to be pushing something in the public’s interest,” Wielechowski said. “It can’t be for your own economic interest or something in your backyard. It has to be something that impacts a number of people.”

Wielechowski believes a lawsuit filed by Vic Fischer, one of the authors of the state constitution, and former First Lady Bella Hammond, illustrates the dangers of the law passed in 2003 because it allows the winners to collect a half million dollars in legal fees from them.

“I thought it was a bad law to begin with,” he said. “Vic and Bella’s case shows why. It’s the principal at stake. We don’t want a society where only the rich can afford to go before the judiciary.”

Wielechowski wasn’t in the legislature when the “loser pay” law was passed, but he said he read the minutes in the debates leading up to passage — and one of the fears back then was that ordinary citizens who stood up to government would be penalized.

“I think it’s a terrible law,” he said.

Supporters of the law argued that too many lawsuits are frivolous, aimed at blocking development.

Wielechowski believes this can be avoided if the courts expedite public litigation cases, so projects aren’t delayed without good cause.

In 2009, Fischer and Hammond joined Nunamata Aulukestai, a group representing tribal organizations in Bristol Bay, and several others, in suing the Department of Natural Resources over its handling of the Pebble Mine project.

Less than a year later, the Pebble opponents lost their lawsuit and faced more than $1 million in legal fees.

Wielechowski called on Gov. Sean Parnell to put an end to efforts to collect fees from Fischer and Hammond and to “stop trying to intimidate” them.

But Sharon Leighow, press secretary for Parnell, said Wielechowski neglects to point out neither the governor nor the state has attempted to collect legal fees from Fischer or Hammond, nor any of the individuals involved in the lawsuit.  The state instead focused on Nunamta Aulukestai, Leighow said. Nunamta Alukestai means “Caretakers of the Land” in the Yup’ik language.

According to Leighow, it was the Pebble Limited Partnership, which joined the state in defense of the lawsuit, which is trying to collect from Fischer and Hammond.

Wielechowsi argues that this doesn’t let the governor off the hook.

“He could have intervened on their behalf,” Wielechowski said. “He could order his attorney general to file papers in court. I think the governor has a huge amount of sway.”

“It’s not the governor’s role to advise a company on litigation,” Leighow said, who also said the governor has no reaction to Wielechowski’s proposed legislation. “The governor doesn’t typically comment on legislation that hasn’t been filed.”

Wielechowski hopes his bill will reopen the debate over the 2003 “loser pays” law — and consider the damage to democratic principles. He said Fischer and Hammond should be applauded, not punished.

In the meantime, the Alaska Supreme Court has just heard an appeal of the case that Fischer and Hammond lost. If they, and others who are party to the lawsuit prevail, it could mean a sudden reversal of fortunes.

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