Public Citizen Reports on Alaska's Pepper v. Routh Crabtree

Tuesday, November 24, 2009

Alaska Supreme Court Rejects Debt Collectors' First Amendment Defense

by Deepak Gupta

With increasing frequency, debt collectors accused of engaging in abusive tactics in the context of consumer collection litigation have been raising a novel defense based on the Petition Clause of the First Amendment, which guarantees a right of access to the courts. They argue that their conduct constitutes protected petitioning activity and is thus completely immune from liability under the Petition Clause, and the Noerr-Pennington doctrine that developed out of it. In the last few weeks, I've seen new notices of constitutional challenges raised along those lines in several federal district courts.

In May, I flew out to Anchorage to argue the issue in the Alaska Supreme Court, on appeal from a lower-court decision dismissing a consumer's case on petition-clause grounds. (You can find our briefs here and here.)

I'm pleased to report that, on Friday, the Alaska Supreme Court ruled that debt collectors who employ unfair or deceptive tactics during collection lawsuits are not shielded by the First Amendment. The decision is the first appellate ruling on the issue by any court nationwide.  As I say in the Public Citizen press release about the case, "the Alaska Supreme Court’s ruling sends the message that debt collection companies can’t get away with abusive tactics simply by hiring lawyers. The court rejected a dangerous new immunity defense that would have created a gaping hole in consumer protection law."

Our case arose out of an attempt by an Anchorage collection agency to sue Robin Pepper, a mentally disabled woman, without providing her with proper notice. The agency sent papers to a nonexistent address, misrepresented to the court that Pepper was competent, and tried to get a default judgment against her. Pepper, represented by Alaska Legal Services, then brought a separate lawsuit, alleging that the collection agency’s practices violated the state Unfair Trade Practices Act. The collection agency asked the court to dismiss Pepper’s case on the theory that its litigation conduct was protected by the First Amendment, and the lower court agreed. Alaska Legal Services asked Public Citizen to handle the case on appeal.

The Alaska Supreme Court broadly rejected the debt collector’s immunity defense, ruling that the First Amendment’s petition clause does not extend to conduct that was unfair, deceptive, and in violation of the Unfair Trade Practices Act. Quoting our brief, the court ruled that debt collectors have “no legitimate interest in pursuing collection litigation without notifying debtors, or in seeking to default incompetent debtors without notice to their lawyers or guardians.”

Posted by Deepak Gupta on Tuesday, November 24, 2009 at 07:48 PM in Consumer Litigation, Debt Collection, Free Speech, Intellectual Property & Consumer Issues, Unfair & Deceptive Acts & Practices (UDAP) | Permalink

Alaska Supreme Court- Debt Collectors Must Litigate Fairly in Alaska

In a case closely watched by consumer groups and the debt collection industry, the Alaska Supreme Court handed down a decision yesterday stating

Because we conclude that it would not unconstitutionally burden the defendants’ petitioning activities to require them to litigate debt collection claims in a fair manner, we reverse the dismissal of Pepper’s complaint.

The court in deciding Pepper v. Routh Crabtree APC (available at sp-6437.pdf (application/pdf Object) ) held that acts by the debt collector attorney such as failure to serve Pepper, presenting the court with an inaccurate affidavit of competence, and failure to inform Pepper's attorney prior to filing for default, could constitute violations of Alaska's unfair trade practices act. The case is remanded to the lower court.

James J. Davis, Jr., Alaska Legal Services Corporation, Anchorage, and Deepak Gupta, Public Citizen Litigation Group, Washington, D.C., have won an important victory for consumer rights not only in Alaska but across the nation as debt collector attorneys have increasingly sought to cloak their unfair practices with petition rights' immunities.

Acidic Arctic Seawater & Declining Yukon King Salmon Runs

Yesterday's Guardian reports that

Arctic seas turn to acid, putting vital food chain at risk

Robin McKie, science editor
Carbon-dioxide emissions are turning the waters of the Arctic Ocean into acid at an unprecedented rate, scientists have discovered. Research carried out in the archipelago of Svalbard has shown in many regions around the north pole seawater is likely to reach corrosive levels within 10 years. The water will then start to dissolve the shells of mussels and other shellfish and cause major disruption to the food chain. By the end of the century, the entire Arctic Ocean will be corrosively acidic. For more-

Arctic seas turn to acid, putting vital food chain at risk | World news | The Observer

While today's New York Times reports that

Scarcity of King Salmon Hurt Alaskan Fishermen

By STEFAN MILKOWSKI

Published: October 2, 2009

MARSHALL, Alaska — Just a few years ago, king salmon played an outsize role in villages along the Yukon River. Fishing provided meaningful income, fed families throughout the year, and kept alive long-held traditions of Yup’ik Eskimos and Athabascan Indians. For more-
Weak Levels of King Salmon Hurt Alaskan Fishing Community - NYTimes.com

It is sad to report that last year's poor returns of Yukon kings, blogged on below, has repeated itself this year. This is a true disaster for the people of the region. And what is unforgivable is that where there are measures that government has the ability to do something about, i.e. stopping bycatch of king salmon in the industrialized Bering Sea pollock fishery, the response has been too little and woefully late.

Talking Sense About Invasion Biology - Are Herbicides Really Necessary to Save Alaska from Immigrant Plants?

Immigrant species aren't all bad - opinion - 25 September 2009 - New Scientist

Today's opinion piece online at New Scientist is an important critique of the "science" that is relied upon to support the herbiciding of every plant that is expanding its range in this time of global climate change. As Professor Davis, author of Invasion Biology, concludes

It is crucial that we distinguish harm from mere change so that we can spend scarce human and economic capital wisely.

Davis is quite clear that immigrant species have sometimes caused harm in their new homes, however he notes that that result is the exception rather than the rule. Here in southcentral Alaska, where the spruce/birch complex of "invasive" species have moved in to revegetate the moraines left behind by retreating glaciers over the last few thousand years, it is especially clear that change is natural and even desirable at times.

According to a review of Professor Davis's book Invasion Biology , first published in April,

"Davis writes well, and clearly. But his big contribution is to the skeptical re-examination of the field as a whole. This book will not kill it off. But if, over time, invasion biology were to become absorbed into broader ecological fields...future historians of science might see Invasion Biology as the beginning of the end."--Nature

Invasion Biology is available at: Amazon.com: Invasion Biology (Oxford Biology) (9780199218752): Mark A. Davis: Books

At the present time the Chugach National Forest, Kodiak National Wildlife Refuge, and Denali National Park are gearing up to start spraying herbicides to save Alaska from "invasive" plants such as dandelion, orange hawkweed, and butter-and-eggs. In addition the Alaska Department of Environmental Conservation is in the process of considering a railroad application to spray endocrine-disrupting herbicides on 90 miles of track between Seward and Indian.

Alaska is the only state that has a 25-year record of avoiding virtually all use of herbicides on our public lands and rights-of-way. Alaska is also the only state whose salmon runs and wildlife populations are relatively healthy. Alaskans need to take a hard look at those agencies whose solution to vegetation management problems is based in the herbiciding of Alaska.

Endocrine Disruptor Pesticides Linked to Widespread Occurrence of "Intersex" Fish- So Far Yukon River Fish Not Affected

Widespread Occurrence Of Intersex Bass Found In U.S. Rivers

This week the United States Geological Survey released the most extensive study to date of the occurrence of "intersex" fish in U.S. waters. Alaska's Yukon River was the only studied river where no intersex fish were found. While few will be surprised that Alaska's great river is still pure enough to avoid some of the ills found in the lower 48, what is shocking is the extent of the problem discovered. At the Pee Dee River in South Carolina, one test site revealed that 91% of the bass were intersex, i.e. males had eggs in the testes or females exhibited male organ development.

It is ominous that this documentation emerges just as the Alaska Railroad is seeking a permit to spray a herbicide that has been shown to disrupt endocrine systems along 90 miles of track from Seward to Indian. It is also a poorly kept secret that the Alaska state highway department is gearing up to start herbicide use if the railroad can set a precedent.

Alaska former Governor Jay Hammond stopped herbicide use by state agencies in 1978. The emerging studies prove how far-sighted our bush-rat governor was. So far Sean Parnell has kept mum, at least in public, as to whether he will sit back and let the state entities start poisoning our streams and rivers with endocrine disrupting herbicides.

Alaska Railroad to Dump Track Workers & Replace Them With Herbicides

Alaska Railroad plans significant layoffs: Alaska News | adn.com

Comments are due September 15 on the Alaska Railroad's application to the Department of Environmental Conservation seeking approval for spraying herbicides on 90 miles of track from Seward to Indian. If approved this will be the first such widespread application of herbicides in Alaska in the last 25 years. Endangered Cook Inlet Beluga whales, salmon, and human residents will face continuing exposure to endocrine disrupting chemicals if the railroad is allowed to proceed. Alternatives that have worked in the past to control vegetation without herbicides include spreading clean ballast on the track bed and using prisoners to clear brush along the ballast.

Right To Choose Medical Treatments Declared Fundamental Right In Alaska

In a ruling issued April 3rd, click here, the Alaska Supreme Court held that Alaskans have a fundamental liberty and privacy right to determine medical treatments for themselves and their minor children. This office represented plaintiffs Dr. Patrick Huffman and Amy Reedy-Huffman in a case that challenged the state's right to exclude their children from public school because the parents refused to allow their children to be given the tuberculosis skin test.


Dr. Patrick Huffman, a Homer naturopathic physician and father of the children, determined that the state's tuberculosis skin tests could be harmful to the health of Stone and Elias Huffman and he signed a school district waiver stating his conclusions. Although the waiver is an accepted means of allowing children to attend school without the test, the State determined that it was valid only if signed by an MD or an OD, and not a naturopathic doctor. The Kenai Peninsula Borough School District planned to exclude the children from public school if they did not take the test.


The Huffmans subsequently filed suit. The Huffmans argued not only the the State's regulation did not exclude naturopaths from signing the waiver, but that the invasive and possibly harmful test offended the Huffmans' freedom of religion and denied them the fundamental liberty interest in choosing the health care for their minor children.

Retiring Alaska Supreme Court Justice Warren Matthews, writing for a unanimous court, states,

We have already held that the Alaska Constitution protects as fundamental rights the ability of every individual to control her own hairstyle and to make her own reproductive choices. We believe controlling one's medical treatments falls into the same category of personal physical autonomy. We now hold that the right to make decisions about medical treatments for oneself and one's children is a fundamental liberty and privacy right in Alaska.

The court remanded the case to Anchorage Superior Court for further proceedings as to whether the less invasive sputum test and blood tests for TB can satisfy the state's legitimate goal in protecting school children from contagious disease without infringing upon the Huffmans' fundamental liberty and privacy rights.

ALASKA REFUGES TO HALT USE OF HERBICIDES ON “INVASIVE” PLANTS

In response to litigation filed against the U.S. Fish and Wildlife Service in U.S. District Court in Anchorage (Civil Case No.: 3:08-cv-00249-JWS) by environmental groups, Alaska Survival and Alaska Community Action on Toxics, Alaska Regional Director of the U.S. Fish and Wildlife, Geoffrey Haskett has issued an agency directive to halt use of herbicides on Alaska refuge lands.

In his January 13, 2009 directive, Haskett stated:

“The Refuge System in Alaska is hereby directed to immediately cease use of herbicides on or off refuges unless the requirements of NEPA, specific to the particular application, are met. That may include preparation of an environmental assessment ("EA") and finding of no significant impact ("FONSI"), if appropriate, or an environmental impact statement ("EIS") and record of decision ("ROD"), when required by NEPA.”

Alaska Survival and Alaska Community Action on Toxics, represented by attorney Paul H. Bratton of Talkeetna, filed suit in December, 2008 to enjoin the agency’s use of herbicides on the Kodiak National Wildlife Refuge, the Alaska Maritime National Wildlife Refuge and in the city of Kodiak. Fish & Wildlife has been spraying herbicides to kill orange hawkweed on Camp Island in the Kodiak National Wildlife Refuge since 2003 without complying with the National Environmental Policy Act. More recently, the agency has also begun to spray herbicides in other areas for other species of plants, such as Canada thistle and ox-eye daisy, which the agency considers to be “invasive”.

The chemicals used on the refuges include the herbicides Transline and Milestone VM, the surfactant Agri-Dex, and ACMI Violet Dye. Alaska Survival and Alaska Community Action on Toxics claim that these chemicals have the potential to cause adverse effects on humans, fish and wildlife. The environmental groups’ complaint states that no studies of the persistence and effects of these chemicals have been conducted in a northern environment similar to Alaska’s and therefore the effects of their use in Alaska is unknown.

“We don’t know what the effects on the Alaskan environment would be from these chemicals, how long they may last or how they may react in the sub-arctic,” said Judy Price of Alaska Survival. “We do know that when the University of Alaska researchers conducted research on herbicide spraying on the Alaska Railroad in the 80s, they found that the chemicals were lasting far longer than the scientific literature indicated, that they leached deeper than expected, and killed plants some distance from where the chemicals were sprayed, possibly moving out of the spray zone by tree root translocation.

It’s well known that herbicides persist longer in a cold climate, and that when they are around for these longer periods of time, they have more time to run-off to other areas, to leach into groundwater, to bioaccumulate in the soil and in animals’ bodies. But researchers are just discovering other troubling aspects of herbicide spraying in this environment. Just in the last few years, University researchers found that the herbicides sprayed on roadsides in Alaska, as a part of a DOT experiment, not only were still around the spring after the previous summer’s spraying, but that the herbicide concentration actually increased in surface soils. The researchers speculated that the herbicide was being released from the dead vegetation during spring thaw.”