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Lawyers find flaws with Alaska GOP's ethics gag order
Anchorage Daily News


September 29, 2005

JUNEAU, Alaska - The Alaska Legislature's top lawyer says there could be big constitutional problems with the state Senate Republican push to fine people $5,000 if they say a word about filing an ethics complaint against a state legislator.

Tam Cook, the director of the Legislature's legal services division, said Tuesday that could conflict with the freedom of speech guaranteed in the U.S. Constitution.

"I think such a provision is going to create a very strong constitutional issue," Cook said at an Anchorage, Alaska, meeting of the Select Committee on Legislative Ethics.

Her comments came after Brent Cole, a private attorney hired by the ethics committee, said he believed the fines would not stand up in court.

The Senate in May passed a pair of bills that would impose a $5,000 fine on anyone who talks about filing or intending to file an ethics complaint against an Alaska legislator, state official or state employee. A complaint against a lawmaker would remain forever secret unless the ethics committee found "probable cause" to believe the target of the complaint broke state ethics law.

The Senate passed both bills on 11-8 votes, with the Republicans voting for them and Democrats against. The House will take the bills up in January.

The author and force behind the bills is Republican Sen. Ralph Seekins, chairman of the Senate Judiciary Committee. In a Tuesday interview, Seekins disagreed with the lawyers.

"I don't for a minute believe the intent of the Constitution is to allow the public pillorying of someone who is innocent," said Seekins, a Fairbanks car dealer who has said he is considering running for governor in the 2006 election.

He said the law would protect the subject of a complaint from baseless complaints. Seekins and other Senate Republicans have complained about "trial by media" when complaints are filed for partisan political purposes.

Seekins said he didn't have specific examples of this. But he said his hearings on the bill included anecdotal evidence that ethics complaints have been filed to score political points.

The original version of his bills called for up to a year in jail for those who talk about filing an ethics complaint. Seekins said he floated the idea of jail time just for "shock value." He said he modeled the proposal after an Oklahoma statute.

Cole said that Oklahoma law hasn't been challenged in court, but courts in several other states have struck down similar laws as violating rights to free speech.

He said when people choose to become politicians they open themselves up to criticism - fair or not. The courts have held that is part of a democracy, he said. Cole said the Alaska Supreme court would toss out the fines.

Legislative lawyer Cook said the question would be whether the Legislature could argue in court that it had a public policy reason good enough to justify the "burden on free speech."

Seekins said people can publicly criticize politicians all they want under his bills - including on subjects over which they filed an ethics complaint. They just can't reveal they filed the complaint and get headlines for doing so, until the complaint is found to have merit, he said. The bar association has similar confidentiality rules for complaints against lawyers, he said. Also, grand jury proceedings are secret until there is an indictment, Seekins said.

He said he would recommend that the state House keep the fines in the bill or find an alternative.


Distributed by Scripps-McClatchy Western Service,

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