Editor’s note: This story has been updated to include new information from Homer City Manager Katie Koester on what the city spent in legal fees.
In an order and decision released on Dec. 22 regarding a city of Homer civil court decision, Anchorage Superior Court Judge Erin Marston made a ruling like King Solomon when he split in half the legally allowable attorney fees that the prevailing party could receive. In the Aderhold et al. v. City of Homer recall election case, the political action group Heartbeat of Homer — admitted as an intervenor on the side of the city — had asked for 75 percent of the $11,506 it paid in attorney fees.
Going into the holiday weekend, Marston didn’t quite give Heartbeat of Homer what it had asked for in its filing. He set the maximum at 20 percent, and then said because half the arguments involved constitutional issues, cut that to 10 percent, or $1,150.60. Marston also said the plaintiffs have to pay $67.93 in other costs.
“I was kind of hoping for zero, but this is maybe the next closest thing to that,” former Homer City Council member Catriona Reynolds said on Monday in response to the decision.
“It’s sort of a pain that we have to pay, but it is still somewhat of a victory since it was dropped from $11,000 to … ($1,100),” said former council member David Lewis. “I may have to do some research and see if we can go for attorney’s fees for the ethics complaints.”
Lewis referred to two unsuccessful ethics complaints filed against him, Reynolds and council member Donna Aderhold in which recall supporters claimed it was a conflict of interest for them to vote to certify the unsuccessful recall election. Last April, former council members Lewis and Reynolds and current council member Aderhold tried to stop a recall election against them, asserting the grounds for recall violated their First Amendment right to freedom of speech. The American Civil Liberties Union-Alaska represented the plaintiffs. The pro-recall group and the city prevailed when last May Marston said the election could proceed. Lewis and Reynolds chose not to run for re-election in October and Aderhold’s term doesn’t expire until October 2018.
In an agreement announced after the June 13 election in which the recall failed by a near-landslide of “no” votes, the city and the plaintiffs agreed to a resolution regarding their legal fees. In return for the council members not appealing the decision, both sides agreed they would each cover their own attorneys’ fees. Heartbeat of Homer wasn’t a party to that agreement and filed a motion trying to recover some of its legal costs.
In his six-page decision, Marston ruled that in a case with no monetary award, Alaska statutes limited the amount a prevailing party could receive to 20 percent of legal fees. The plaintiffs asserted that because they raised a constitutional issue, they should not have to pay any fees. Marston wrote that about half the briefings were devoted to constitutional claims and thus halved the amount to 10 percent.
Stacey Stone, the Anchorage attorney who represented Heartbeat of Homer, did not return a phone call seeking comment on Marston’s decision. Heartbeat of Homer, reached through Sarah Vance, its spokesperson at the time of the recall, also did not reply to an email requesting comment.
In his ruling, Marston said Heartbeat of Homer asked for 75 percent of legal fees because of “the expedited nature of the case and the public significance of potentially preventing a constitutionally protected recall election from occurring.” Marston said the plaintiffs also raised constitutional issues and that his ruling against them did not mean Heartbeat of Homer’s claims had a greater public significance. He also wrote that the expedited decision didn’t warrant a higher percentage. All parties agreed to an expedited process and that “the expedited nature was reasonable in consideration of the benefits of having the court resolve the issue prior to the June 13 recall elections,” he wrote.
The plaintiffs also argued that Heartbeat of Homer shouldn’t receive attorney fees because they didn’t need to participate and their arguments were “duplicative or unreasonable,” Marston wrote. The judge rejected that argument. He said that while the city and Heartbeat of Homer had similar arguments, that was a result of their similar positions in the case and “does not make Intervenor’s participation or attorney’s fees unnecessary or unreasonable,” Marston wrote.
After a group of citizens gathered sufficient signatures to force a recall election and the city clerk certified its petition, Heartbeat of Homer filed as a political organization with the Alaska Public Offices Commission to support the recall, with organizer Michael Fell as its chairman. It received $10,339.71 in total contributions and spent the same amount. On July 7 it reported an expenditure of $621.18 for “legal defense fund” to close out its account after the election. Presumably that supported Heartbeat of Homer’s legal efforts through Stacey Stone, but it’s unknown where the other $10,884.82 came from that Heartbeat of Homer said it paid in the Aderhold et al. case. Stone is a member of Holmes Weddle &Barcott, and she and another firm member also represented Heartbeat of Homer and recall support Larry Zuccaro in two unsuccessful ethics complaints against Aderhold, Lewis and Reynolds, claiming they should not have voted on certifying the Canvass Board’s final counting of the recall election.
In an email to the Homer News on Dec. 29, Homer City Manager Katie Koester said the city spent $42,177 in legal expenses in the Aderhold et al. v. City of Homer case and $18,842 in legal research regarding the recall process and certifying the petition.
ACLU director Joshua Decker did not return a phone message seeking comment on if the plaintiffs would appeal Marston’s latest decision. Reynolds said discussions were still ongoing on how to proceed. If the parties don’t appeal, that would snip off the last hanging thread in the recall controversy.
“This was the last decision that we were waiting for,” Aderhold said on Tuesday. “I’m glad. That’s why I’m happy to start 2018 with a clean slate.”