Borough gets ACLU bill of $80,000

Community member Kalliste Edeen offers an invocation at the Tuesday, Jan. 8, 2019, Kenai Peninsula Borough Assembly meeting. The borough recently lost a lawsuit over its invocation policy, and has been ordered to pay legal fees for the ACLU. (Photo by Brian Mazurek/Peninsula Clarion)

Community member Kalliste Edeen offers an invocation at the Tuesday, Jan. 8, 2019, Kenai Peninsula Borough Assembly meeting. The borough recently lost a lawsuit over its invocation policy, and has been ordered to pay legal fees for the ACLU. (Photo by Brian Mazurek/Peninsula Clarion)

The Kenai Peninsula Borough will pay $80,000 in attorney’s fees to the American Civil Liberties Union-Alaska as a result of the borough’s failed attempt to defend the assembly’s former invocation policy. It also will pay $401.65 in court costs.

In a Stipulation and Order agreed upon by the borough and the ACLU-Alaska, and signed by Anchorage Superior Court Judge Andrew Peterson on Jan. 25, the borough agreed to pay the fees and to not appeal Peterson’s decision that the invocation policy was unconstitutional.

“It’s frustrating to have had to spend so much taxpayer money,” said Assembly member Willy Dunne, who represents the lower peninsula. “I think this will be the last bill we have to pay on the invocation issue.”

Lance Hunt, an atheist, Iris Fontana, a member of The Satanic Temple, and Elise Boyer, a member of the small Jewish community in Homer, challenged the former policy in October 2016 after they were denied the chance to give an invocation because they did not belong to official organizations with an established presence on the peninsula — one of the requirements for a person to give an invocation under the former policy.

With the assistance of the ACLU-Alaska, the plaintiffs filed a suit alleging the invocation policy violated the establishment clause, free speech clause and equal protection clause of the Alaska Constitution. Peterson ruled in October 2018 that the borough’s invocation policy violates the establishment clause, which refers to the mandate in the Constitution banning the government from establishing an official religion or favoring one religion or belief over another.

“The Resolution is inclusive of tax-exempt religious association(s) serving residents of the borough. It is not inclusive of every religious view or belief practiced by the residents of the Kenai Peninsula Borough,” Peterson wrote in his decision. “Plaintiffs Hunt, Fontana, and Boyer are all examples of borough residents whose religions’ values are excluded and disfavored by the Resolution.”

After Peterson’s decision, the assembly voted not to appeal and changed its invocation policy to make it more inclusive. Now anyone can sign up with the clerk’s office to make an invocation. Dunne noted that recent invocations have included a nature-based talk by a Wiccan and a talk by a yoga teacher that included breathing exercises.

In January 2017, the assembly passed a resolution appropriating $50,000 to an account to defend its former invocation policy. The borough later entered into a contract with the Alliance Defending Freedom — a Scottsdale, Arizona, based religious rights organization — to defend it in the Hunt et al. lawsuit. The alliance provided legal support through Anchorage attorney Kevin Clarkson, now the Alaska Attorney General, who then was in practice with the law firm of Brena, Bell & Clarkson.

To pay the balance of the $80,401.65 in attorney’s fees and court costs due the ACLU-Alaska, at its Feb. 2 meeting, the assembly will consider an ordinance, 2018-19-29, appropriating another $70,400 from the general fund to that account — meaning the borough has spent almost $40,000 from that account to defend the invocation policy. If the $70,400 appropriation passes, the borough will have spent $120,400 on defending the Hunt et al. lawsuit, according to Brenda Ahlberg, borough community and fiscal projects manager.

In the whereas clauses, the ordinance notes that Hunt et al. could recover attorneys’ fees and costs under Alaska law saying the court shall award such fees “to a party that prevails in a civil action asserting the establishment, protection or enforcement of a civil right under the United States Constitution or the Constitution of the State of Alaska.” It also notes the ACLU-Alaska agreed to reduce its fees.

Under its contract with the borough, the alliance agreed to donate time for its attorney fees to offset the cost of defending the Hunt et. al lawsuit. That didn’t include the other side’s fees in the event the borough lost, said Brett Harvey, lead counsel for Alliance Defending Freedom in Scottsdale.

“Ethical rules prevent us to cover them in the event the court orders them to pay for the other side’s attorney fees,” Harvey said Monday.

Borough attorney Colette Thompson confirmed that. In an email, she wrote that ADF’s agreement included a provision stating it would not be responsible for payment of the plaintiffs’ fees and costs.

“This is consistent with the Rules of Professional Conduct that govern attorneys, which preclude an attorney from agreeing to indemnify a client for costs and fees ordered by a court to be paid to the other side of litigation,” Thompson wrote.

The borough also entered into a separate agreement with Brena, Bell & Clarkson (BBC) in which it agreed to pay fees and costs not paid for by ADF, Thompson wrote.

“The ADF was not obligated to pay BBC’s attorney’s fees and costs, but did pay a significant portion of them through its internal grant program,” Thompson wrote.

Harvey said the alliance would have gone forward with an appeal if the borough had wanted to. Dunne also recovered $10,000 in attorney’s fees when he challenged a clause in the alliance contract he said prohibited him from writing an opinion piece about the former invocation policy. Added together, the borough has spent at least $130,400 in legal and other fees related to the invocation policy.

“We could have hired a couple of teachers for that,” Dunne said. “It’s frustrating.”

After Hunt et al. filed their lawsuit, Dunne and Assembly member Kelly Cooper, who represents Homer and Kachemak City, tried to either eliminate the invocation or pass a more inclusive invocation policy. Those efforts failed, and the current inclusive policy didn’t happen until after the lawsuit ended.

“That’s how we got to where are today,” Cooper said of the latest bill.

Cooper said many of her constituents favored either no invocation or something like a moment of silence, but that the more inclusive, constitutionally allowable invocation was the one that had the votes to pass.

“Sometimes we have to reach that compromise we can all live with,” she said. “It’s always been my position that everyone can give the invocation or no one. I continue to believe that.”

Reach Michael Armstrong at marmstrong@homernews.com.

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