March 5: Anchorage Daily News on Legislature and limiting public participation:<

Posted: Monday, March 06, 2000

Who says the Alaska Legislature isn't busy? Why, just about every day majority lawmakers introduce or pass legislation that limits public participation in the process of government. Now that's getting off your duff and making things happen!

The latest example is a bill the Senate passed Wednesday to alter court rules so that Alaskans who win public interest lawsuits will collect only up to 30 percent of attorney's fees. Current law provides for winners to recover 100 percent of reasonable costs. (Losers are not asked to reimburse the state for its expenses.)

Sen. Sean Parnell says the new approach will create equity in the court system. For example, ''Environmental groups would be treated the same as domestic violence victims.''

This appeal to equity is inviting -- but grossly misleading.

A domestic violence case, which is a criminal matter, usually affects only the participants and their families. Rarely is a constitutional issue or a policy matter in play that affects the whole state.

Public interest lawsuits, which are civil cases, have a long history in this state. They provide citizens an opportunity to contest the behavior of the government or the political process.

As the Alaska Supreme Court once said, ''the policy of awarding full attorney's fees to public interest litigants was designed to encourage plaintiffs to raise issues of public interest as 'private attorneys general.' '' And a public interest litigant cannot, by definition, have a substantial economic motivation.

Lawsuits have been filed to challenge elections, reapportionment, zoning laws, local ordinances, the constitutionality of state law and ballot propositions.

A citizen who sues the state in a public interest case faces an adversary with dozens of lawyers, millions of dollars, and the government's entire legal apparatus behind it. A plaintiff's ability to collect 100 percent of his fees levels the playing field -- at least a little. (After all, winning attorneys sometimes wait years to collect).

Reducing winners' fees won't prevent affluent plaintiffs from going to court; but it will stop civic-minded citizens with small bank accounts. It will also stop lawyers with limited financial resources.

Sen. Dave Donley argues that the legislation allows plaintiffs to collect 100 percent of their fees in ''extraordinary'' cases, but obviously that standard, by definition, will be hard to meet. The whole point of this legislation is to make the process tougher for public litigants to collect.

Sen. Donley also argues that public interest legal fees are too costly for the state, between $2 million and $5 million a year. But the state is paying that money, in most cases, because government blundered or overreached. Public interest lawsuits are corrective action to the mistakes and misjudgments of those in power. The budget for public interest lawsuits would be zero if the state and local governments did not make errors.

People from all walks of life have gone to court as public interest litigants. This is not just the tool of environmentalists and their lawyers. Conservative Republicans like Wayne Anthony Ross and Wev Shea, for example, have brought important cases to the courts.

The Senate, in its attempt to hobble environmentalists and other unpopular plaintiffs, is prepared to punish every Alaskan. This is the worst kind of legislation. But it is consistent. Many legislators have made it clear they think the public and the other branches of government have too much power and are too meddlesome.

Last year, the House defeated legislation with a similar goal. Let's hope the House Republicans have the fortitude to do the same this year. Public interest lawsuits are a vital buffer against government error and excess.


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