Alaska State Legislature

News From The House Majority

Ken Freeman, Press Secretary
State Capitol
Juneau, AK 99801
Phone: (907) 465-3804
web site: http://www.akrepublicans.org
Actuality line: 1-800-478-6540

State of Alaska To Protect its Interests in Federal Court

For Immediate Release: March 6, 1997 Contact: Rep. Bill Hudson (907) 465-3744

JUNEAU - Legislation to allow the State of Alaska Attorney General to give the State's consent to appear in federal court passed the Alaska State Senate Thursday.

HB 120, sponsored by Representative Bill Hudson (R-Juneau), waives Eleventh Amendment immunity in two pending cases where it is in the state's best interest to join as a defendant in federal court. HB 120 was passed by the House of Representatives February 13.

The Eleventh Amendment to the United States Constitution prohibits suits against states in federal court for damages brought by citizens of that state. Recent decisions of the United States District Court for the District of Alaska have prohibited the Attorney General from waiving this immunity without express legislative authority to do so.

Representative Hudson noted that from time to time there are cases where it is procedurally advantageous for the state to waive its Eleventh Amendment immunity and have a case heard in federal court. Hudson said there are presently two such cases before the state of Alaska and that is why he has introduced HB 120.

"In the first case, the United States is being sued by plaintiffs in Alaska who seek a judgment that the U.S. owns the tidelands in the Tongass National Forest. The State has not been named as a defendant, however, it would like to intervene to determine its title to the lands in dispute," said Hudson. "Only by joining as a defendant in this lawsuit can the state litigate this title," Hudson said.

The Quiet Title Act requires that the United States "claim and interest" in the disputed property. In this case, the United States has carefully avoided taking any formal position as to whether it believes it or the State has title to the tidelands in question. By joining as a defendant, the State would secure the opportunity to establish title to lands it owns.

Hudson noted that the second case involves tort claims where the state and federal government are both potentially responsible. Because of the Eleventh Amendment immunity, and because the federal government cannot appear in state court, the claims cannot be litigated in one court, and fault allocated among all parties.

"If the State is unable to waive the Eleventh Amendment and appear and defend its interests in federal court, it will lose its ability to have a fair allocation of fault among all responsible parties. This places the state at a substantial economic disadvantage in defending the lawsuit," said Hudson.

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