Reflections on Litigating in Alaska Courts and the thorny issue of who pays for litigation 

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“The Last Frontier Facing the New Frontier” Episode 2 (Again with Practice Pointers!)

John Ptacin, Sedor, Wendlandt, Evans & Filippi, LLC

Hopefully, your School District will not get sued, but if it faces litigation, plaintiffs usually seek monetary damages. A common lawsuit school districts face involves claims for monetary damages for physical injuries that occurred on school grounds.

In the “new frontier,” School Districts increasingly face the possibility of a different type of lawsuit—where the plaintiff does not seek any money damages. Instead of money, these plaintiffs only seek a court order restraining the School District from taking certain actions or, alternatively, compelling the School District to act in a certain way. This type of award is called an injunction or injunctive relief.

School Board Members and Administrators need to understand that even if a plaintiff does not seek monetary damages, a School District must still prepare for the hidden costs of defending against a lawsuit for injunctive relief. The costs include drafting an answer to the complaint, obtaining discovery from the plaintiffs, briefing complex issues for the Court, and trying the case.  

Injunctive relief lawsuits against School Districts could focus on the interpretation of the United States Constitution or the Alaska Constitution. Recently, the Ketchikan Gateway Borough School District defended its decision to display Tlingit and Haida Tribal Values Posters in its schools. In this lawsuit, the plaintiffs sought an injunction which would have required the removal of the posters, but they did not seek a monetary award. This lawsuit hinged on whether the District’s decision to display the posters in school buildings violated Constitutional restrictions on religious establishment.  

Under Alaska Law, if a plaintiff obtains injunctive relief, and the injunctive relief is based upon the United States or Alaska Constitution, the plaintiff is generally entitled to recover full attorney’s fees from the civil defendant (in this case, the School District). But, if that same plaintiff does not obtain injunctive relief, the Court most likely will not order the plaintiff  to pay any portion of the School District’s attorney’s fees and costs. In rare circumstances, the Court could order the plaintiff to pay the School District for its attorneys’ fees and costs if the court determines that the plaintiff’s lawsuit was frivolous.

Therefore, an injunctive relief lawsuit is a “heads I win, tails you lose” scenario, at least with respect to who pays for some of the litigation in these cases.  For the Ketchikan Gateway Borough School District, even though the Court denied the plaintiffs’ injunction and agreed with the District, the Court was not in a position to order the plaintiffs to pay any portion of the District’s legal fees. If the District had lost the lawsuit because the Court ordered it to remove the Tribal Values posters from the schools, the District would have most likely had to pay its own legal fees and costs as well as a the plaintiffs’ legal fees (had they retained counsel). 

In the “new frontier,” School Districts’ administrative processes matter more than ever. Board Policies instruct school administrators and school boards to examine potential constitutional controversies before they become final decisions of the District. The benefits of these processes are twofold. First, if a plaintiff proceeded directly to Court with their constitutional issue, without seeking redress from the Board in the first instance, the Court may instruct the plaintiff to exhaust these remedies before filing suit. Second, examining the constitutional controversy as a District provides an opportunity to determine whether a reasonable compromise could avoid litigation altogether.   

Practice Pointers

School board members and administrators should consider the following:

  1. If a controversy touches on constitutional issues, consult your counsel and ensure that the concerned member of the public is following your complaint processes.
  2. Factor in the costs of constitutional litigation when deciding whether to make reasonable compromises.
  3. Your insurance policies may not cover the District’s costs of injunctive relief litigation. Consider reviewing your policies and consult your providers about adding coverage for injunctive relief lawsuits.

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