Court Rules Alaska State Law Illegal

Concerned citizens cannot be denied access to the courts


Myron Naneng, AVCP, 907-543-7300


David Fleurant, Disability Law Center, 907-565-1002


Chris Whittington-Evans, Friends of MatSu, 907-746-7023


Tom Waldo, Earthjustice, 907-586-2751

Earthjustice won a case in Alaska Superior Court today overturning a state law restricting public access to the courts. House Bill 145 was passed by the legislature and signed into law by Governor Frank Murkowski last year. The court found that the law violated the Alaska Constitution’s guarantees of equal protection and due process and failed to attain the two-thirds vote of both legislative houses required to change court rules.

House Bill 145, introduced by Governor Murkowski in March 2003, changed Alaska’s court rules by requiring “public interest litigants” to be liable for the opposing side’s attorney’s fees. The court found that it was wrong to force Alaskans to take this risk in order to protect their communities and rights. “Awarding fees in this type of controversy will deter citizens from litigating questions of general public concern for fear of incurring the expense of the other party’s attorney’s fees,” stated the court.

“Today the court preserved balance and fairness for all Alaskans by upholding public access to the courts of Alaska when the government has violated the law,” said Myron Naneng, Sr., President of the Bethel-based Association of Village Council Presidents. “Murkowski’s attempt to insulate the government from accountability to the public would have shut the doors of the courts to village residents who turn to the courts to address important issues that benefit us all.”

A variety of public service and community watchdog groups lauded the court’s decision.

Groups Seeking Enforcement of State Laws

Disability groups have occasionally turned to courts to enforce full access to public buildings, schools, and other facilities under state anti-discrimination laws.

“Today’s decision safeguards the right of persons with disabilities, who are often middle-class or just struggling to get by, to challenge illegal government action,” said Dave Fleurant, executive director of the Disability Law Center. “This bill would have put another obstacle in the way of people with disabilities seeking equal treatment under programs such as Alaska Adult Public Assistance and Medicaid, as well as under Alaska’s anti-discrimination statutes.”

“The passage of this legislation threatened our ability to protect the freedoms and interests of private property owners,” said Chris Whittington-Evans, President of Friends of MatSu, a group working to protect the region’s residents from uncontrolled coal bed methane development in the Mat-Su Valley.

Supporters of the bill, including the Murkowski administration, claimed the bill was intended to stop frivolous lawsuits.

“Taking a stand against state government actions that allow gas leasing in neighborhoods, schoolyards, and public watersheds is not ‘frivolous.’ It’s an issue of fairness and respect for the rights of average citizens,” said Whittington-Evans.

“What of the wheel-chair-bound citizen who brings a good faith non-frivolous but ultimately unsuccessful claim alleging violation of statutory physical access rights to legislative buildings or courts?” the court asked, pointing out that the bill affected a broad array of Alaskans who wished to make legitimate challenges to potentially illegal government actions.

“My concerns last year were that the legislation placed too high of a financial barrier on concerned citizens, who were attempting to overturn illegal actions by the state,” said Representative Paul Seaton, R-Homer, who voted against Murkowski.

“This is about access to justice,” said Representative Beth Kerttula (D-Juneau) who also voted against the legislation. “It is about whom we let participate in our court system. The Superior Court recognized that there are people who bring cases for the public good and they deserve to be able to do so. Thankfully, the court re-opened the door for the public.”

Bill Would Have Hampered Access to Public Records

The types of cases that were affected by Murkowski’s bill include citizen attempts to obtain government documents under the Alaska Public Records Act and cases challenging other illegal actions and decisions by state agencies.

A broad array of Alaskan groups and organizations, including Alaska Native interests, conservation groups, and a registered political party, brought the lawsuit – Native Village of Nunapitchuk, et al. v. State of Alaska – in the Juneau Superior Court because it limited public access to the courts.

Specifically, the court found that the bill violated Article IV, section 15 of the Alaska Constitution, which requires a two-thirds vote of both houses to pass a law that changes court rules. The court also found that the bill violated the due process clause of the Alaska Constitution. The court held that under Alaska’s due process clause, all potential litigants have a right of meaningful access to the courts, and that HB 145 created a direct impediment to use of the courts by public interest litigants that was not justified by any overriding state interest. Finally, the court held that HB 145 violated the equal protection clause of the Alaska Constitution. Like the due process clause, equal protection ensures that litigants have a right of meaningful access to the courts.

Earthjustice represented Alaska Center for the Environment, Northern Alaska Environmental Center, and Southeast Alaska Conservation Council in the lawsuit. Also challenging the bill were Native Village of Nunapitchuk and Association of Village Council Presidents represented by Eric Johnson of AVCP and The Republican Moderate Party, Inc., represented by Nancy Wainwright.


Additional Resources

About Earthjustice

Earthjustice is the premier nonprofit environmental law organization. We wield the power of law and the strength of partnership to protect people's health, to preserve magnificent places and wildlife, to advance clean energy, and to combat climate change. We are here because the earth needs a good lawyer.