At the request of three law firms, state says per-hour statehood defense lawyer fees are secret

Fairbanks lawyer Kirk Schwalm, named a Superior Court Judge by Gov. Mike Dunleavy on June 16, 2022, was briefly a part of the statehood defense industry earlier that year.

But the Dunleavy administration claims that the hourly rate paid to Schwalm in the spring of 2022 under a $25,000 contract cannot be made public.

The Dunleavy administration says the hourly rate it paid Fairbanks lawyer Kirk Schwalm under a 2022 contract is secret because Schwalm, now a Fairbanks Superior Court Judge, asked that it be kept secret.

There is no justification for hiding this information, which is a key part of the contract.

The attorney general’s office says that Schwalm’s hourly rate—and the hourly rates paid to lawyers in Denver and Los Angeles under two other contracts—are being kept secret because the lawyers asked that the information be kept secret.

It appears that the attorney general’s office consulted with those assembled at the statehood defense trough to see if they desired to keep their hourly rates secret. Great idea, said three law firms.

Perhaps the hourly rate for Schwalm under the $25,000 no-bid contract is now deemed by him or his former law firm to be an embarrassment. Maybe it was too low. Maybe it was too high.

It doesn’t matter. This is not how the law on public information is supposed to work in Alaska.

Judge Schwalm should know that public information about state spending doesn’t become private information simply because the recipient of state money wants the information to be kept secret.

The attorney general should know this as well. I think they are counting on legislative indifference.

The state is spending millions of dollars on what it calls statehood defense, using the court system as a way promote the political views of Gov. Mike Dunleavy and the attorney general.

Taylor’s office said that lawyers from three law firms claimed that hourly rates paid to attorneys are “confidential business information protected under, e.g., article I, section 1 of the Alaska Constitution and the Alaska Uniform Trade Secrets Act, AS 45.50.910-AS 45.50.945; and the Department redacted the rates based on the balance of interests.”

If the tortured logic is true, then George Santos is a model of a former public servant.

If this tactic is allowed to stand, all of the hourly rates in state contracts—which are public information—may be treated as state secrets by the Dunleavy administration, making it that much harder for the public to know what is going on.

To disguise this clumsy exercise in making things up as you go along, the attorney general’s office quotes specifics parts of the Constitution and state law, which is standard practice in the bloviation business.

But even a cursory examination of the legal references shows that the state is holding lousy cards.

Article 1, Section 1 of the Alaska Constitution says nothing about allowing recipients of state contracts to keep their hourly rates—which are spelled out in state contracts for good reason—a secret.

What Article 1, Section 1 of the Alaska Consitution does say is this: “This constitution is dedicated to the principles that all persons have a natural right to life, liberty, the pursuit of happiness, and the enjoyment of the rewards of their own industry; that all persons are equal and entitled to equal rights, opportunities, and protection under the law; and that all persons have corresponding obligations to the people and to the State.”

The Alaska Uniform Trade Secrets Act, AS 45.50.910—AS 45.50.945, says nothing about allowing recipients of state contracts to tell the attorney general’s office to keep their hourly rates secret.

Public disclosure is essential for open government.

Schwalm was hired for up to $25,000 on April 5, 2022. But the contract said he was retroactively going to be paid for work that actually began on February 23, a practice that should be illegal if it is not already.

He represented the state in the federal legal case brought by the Alaska Wildlife Alliance against the federal government over rules regarding the harm to polar bears and walruses from oil development.

On May 13, the Alaska Judicial Council met to consider applicants for the Fairbanks judgeship to be forwarded to Dunleavy. It nominated Schwalm, Jennifer Page Hite and William Montgomery.

Dunleavy selected Schwalm on June 22. On June 23, Schwalm terminated his involvement in the federal court case.

The case was taken over by state attorneys, which raises the question of why the attorney general needed to spend up to $25,000 on a contract attorney in the first place.

Last spring, federal Judge Sharon Gleason dismissed parts of the case.

TO CLARIFY: In a blog post Dec. 2 on the statehood defense contract with Kelley Drye & Warren, I wrote that the state redacted some of the text about what services the law firm is providing with $2.6 million in state funds. The state says that information was redacted because of the “attorney-client communications privilege and the attorney work-product doctrine.”

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