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Tom Koester, Part 2

This is a continuation of the interview with Tom Koester by Bill Schneider on July 28, 2008 at his home in Juneau, Alaska.

Digital Asset Information

Archive #: Oral History 2006-15-10_PT.2

Project: Alaska Mental Health Trust History
Date of Interview: Jul 28, 2008
Narrator(s): Tom Koester
Interviewer(s): Bill Schneider
Transcriber: Carol McCue
Location of Interview:
Funding Partners:
Alaska Humanities Forum, Alaska Mental Health Trust Authority
Alternate Transcripts
There is no alternate transcript for this interview.
There is no slideshow for this person.

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Section 1: Continued discussion of why the mental health trust was not settled during the Cowper administration.

Section 2: Difficulties for the State in trying to get the mental health trust case settled and agreed to, including paying for all attorney fees.

Section 3: Assessment of the mental health trust case in terms of his career and the interesting and complex legal issues it encompassed.

Section 4: His role in representing the State of Alaska in the legal case to resolve the subsistence law at the same time he was working on the mental health trust case.

Section 5: Conflict between state and federal management of subsistence management, and the State's obligation to manage resources equally.

Section 6: His career since the mental health trust case.

Section 7: Assessment of his role representing the State of Alaska in the mental health trust case, his motives, and difficulty in gaining agreement on a settlement.

Section 8: Assessment of Alaska's Constitution and the intent of those who wrote it.

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Section 1: BILL SCHNEIDER: Okay. And you were going to tell us why Steve Cowper didn't push a little harder. TOM KOESTER: Well, I think the ‑‑ the primary reason is he felt, in my mind properly, that once he became Governor, it was no longer appropriate for him to ‑‑ to push a resolution of one issue at the expense of the other people that he represented as Governor.

It's ‑‑ obviously, this is a zero sum gain that we're talking about when you're looking at a state budget, if you give more money to public safety, you give less money to education. If you give more money to mental health, you give less money to capital construction. It's the same with the land. It's a zero sum gain. There's only so much of it. If you're going to put it in a park, you're not going to be selling it for subdivisions. If you ‑‑ if you put it in a wildlife refuge, you're not going to be mining it for minerals.

And as Governor, I think Steve felt properly it really is ‑‑ is not appropriate for me to favor one constituency over another to the extent that I know ‑‑ I don't take these other constituencies' concerns into account at all.

There's also a practical reason. The legislature is the one that created the problem in the 1978 law. Didn't think it was a problem at the time, but it was a statute. The statute had to be changed. To change a statute, you have to go to the legislature. The legislature did not have the same loyalty that Steve Cowper did to the mental health community.

I mean, they represent all of these constituencies and they are getting pressure from all these constituencies, so just as a practical matter, it would have been reasonable for Steve to conclude, I can't get the kind of solution that I want for the mental health community through the legislature because of the competing political pressures.

Section 2: Also was timing. The lawsuit was brought in 1982, the Supreme Court's first decision that said reconstitute the trust but with a setoff for state expenditures on mental health programs was in 1985. That was toward the end of Steve's term. And he had announced that he was not running for re‑election. So the leverage the Governor had was reduced.

One other sort of interesting thing here, the Alaska Supreme Court has a ‑‑ a court rule on attorney fees. And if a public interest party, a party representing the public interest prevails, they are entitled to their attorney fees.

Well, the mental health community prevailed in the first Weiss decision, and the Court said the '78 law was invalid, illegal, improper, improperly took the land out of the trust, reconstitute the trust. So they were the prevailing parties.

In effect, that meant that the State was funding me defending the state, but it was also funding first Steve Cowper, then Bill Counsel and David Crosby, then David Walker and Jim Gottstein. After the intervenors came in, Phil Volland and Jeff Jessee.

As good lawyers, they were seeking to maximize the return to their client, the recovery. Well, the State was paying them to do that. My job was to try and ensure that the State satisfied its obligation but without giving more than was necessary to satisfy the State's obligation.

I'm sure it's hard for people to believe, but the State is not always at an advantage. In this case, the State was funding me and seven lawyers on the other side, which ‑‑ which, at times, was a little overwhelming. Made me feel a little overwhelmed. But I ‑‑ I always felt that my obligation was to ensure that we did not go beyond what the State's obligation was.

And in the end analysis, the only way that we finally reached resolution was that we passed what is now the settlement, the approved settlement, which was not agreed to by all parties. We actually had to litigate the settlement and the Court had to determine that it was fair. And it bound all parties to it.

But interestingly enough, it was the ‑‑ not the original parties, but the intervener parties, alcoholics with chronic psychosis, the elderly with dementia, and the developmentally disabled who agreed to the resolution. The original plaintiffs, Vern Weiss, and what could be thought of as the traditional mental health community, mentally ill, did not agree and fought the settlement.

And Judge Greene concluded ultimately that it was a reasonable resolution, and the Alaska Supreme Court agreed. And the U.S. Supreme Court declined to review it. And so that's why we have the resolution that we do. BILL SCHNEIDER: And you might have had a chance to go to the Supreme Court again. TOM KOESTER: Thank goodness, I didn't. It didn't need to drag on any longer. BILL SCHNEIDER: No, it didn't. It didn't.

Section 3: How ‑‑ how would you rate this case among all the work you've done? Where does it fit in your career, and why?

TOM KOESTER: Well, of all the things I've done, the three that stand out to me are the Dinkum Sands case, the boundary dispute on the North Slope, the debate over subsistence that continues to rage, and this case. I mean, any case that occupies 12 years of your professional life is going to be big.

This was big because it involved a lot of money, it involved a lot of land, it involved a lot of players, several legislative attempts to resolve it, a number of high profile people ranging from the Governor to his commissioners to people who had purchased or leased or recreated on Mental Health Trust Lands, it was ‑‑ and some ‑‑ some characters.

There was definitely some characters involved in this case. Steve Cowper's a character. You know, the ‑‑ characterized as a high‑plains drifter at one point. Jim Gottstein was a fascinating adversary in terms of advocacy.

Judge Greene is an incredibly bright, and I think sympathetic to ‑‑ to the underdog as a Judge, probably not the judge I would have picked, but I think she was very fair and ‑‑ and did an outstanding job in evaluating the settlement and looking out for the interests of ‑‑ of the plaintiffs, the class of plaintiffs, the mentally ill, the beneficiaries of the trust, while at the same time being fair to the state and saying the state came up with a fair resolution to this outcome, or to the ‑‑ to the controversy.

So ‑‑ and obviously, all the players in the legislature during the various iterations of what we tried to ‑‑ to pass through the legislature as a ‑‑ as a mechanism for resolving it. Despite the fact that the first two tries weren't successful.

All of the legislative hearings, it's always, you know, an experience to go before a legislative committee and testify. So it's ‑‑ it's ‑‑ of the ‑‑ of the three things, it's ‑‑ it's ‑‑ it definitely in my top three. BILL SCHNEIDER: Is it in your top three in terms of legal issues, in terms of legal questions?

TOM KOESTER: I would say yes, yeah. Because the ‑‑ the number of issues that were involved, the concept of a trust where you have a beneficiary and you have certain responsibilities as a trustee administering land, money, whatever, for the benefit of those beneficiaries, juxtaposed with the fact that we have this constitutional prohibition on dedicated funds, there was certainly attention there between traditional trust concepts and what prohibits traditional trust concepts. You can't dedicate funds to this particular purpose.

The fact that it was created by the federal government but administered by the state, it was created during territorial days, but after statehood, it was ‑‑ it was a different kind of animal. I mean, it was the same animal, but it was a different owner.

There were ‑‑ there were a host of those kinds of things, plus, you know, any time you get into drafting legislation you have issues of the effective date, did it go through the proper committee process, is the Governor going to sign it, let it become law without signature, I mean, there are all those kinds of things. So there is plenty to be interested in all the way through. BILL SCHNEIDER: Yeah. That's a neat summary. That's a good summary.

Section 4: Well, I think we've ‑‑ we've probably done Mental Health Trust okay here, but while I've got you on tape, tell me about the subsistence stuff. I didn't ‑‑ I didn't know that you were involved in determining subsistence legislation. Or ‑‑

TOM KOESTER: Well, actually, it was the ‑‑ the timing was really kind of ‑‑ kind of interesting. This lawsuit was filed in 1982, and if I ‑‑ if I'm remembering correctly, that was the year Steve Cowper was elected. I think. In ‑‑ boy, Hammond was '74, '78. I think Cowper was '82.

When the plaintiffs, I think David Walker and Jim Gottstein were representing the plaintiffs at the time, it was in '86, they filed an injunction to prevent any transfers of title of any lands that had been Mental Health Trust Lands.

So this was the cloud that suddenly came over all of these land transactions that had taken place to that point. That was the summer ‑‑ whether it was '85 or '86, it was the same summer that the Court, the Alaska Supreme Court invalidated the state subsistence law.

And so there was a special session to try to resolve ‑‑ to try to get through a constitutional amendment to permit the state subsistence law to be consistent with the federal subsistence law. The difficulty was that the state passed a law consistent with the federal subsistence law, but the court threw out the state law and said that Alaska Constitution prohibits the scheme that is embodied in the federal law.

BILL SCHNEIDER: Which is this giving preference to groups ‑‑ TOM KOESTER: Rural preference. BILL SCHNEIDER: ‑‑ at times of shortage. TOM KOESTER: Rural preference. A reference for rural residents. So the Governor called ‑‑ Cowper called a special session in the ‑‑ in that summer when ‑‑ whatever year that was. It was at the same time that the court proceedings were going on in Fairbanks on the injunction.

And Governor Cowper asked me to represent the administration in the hearings before the legislature on this special session on subsistence. And I was the only person he authorized to speak for the administration. So not the Attorney General, not the Commissioner of Fish and Game, not his special assistant for resources, I was the only one.

BILL SCHNEIDER: But ‑‑ and the Attorney General was your boss? TOM KOESTER: The Attorney General was my boss. Yeah. But he wanted ‑‑ Steve wanted me to be the ‑‑ the spokesperson. In fact, I was in an Anchorage Daily News article, a copy of which I have up in my office, because nothing really happened during the day, so they made me the story about how I was the only one.

And one of the unfortunate things in hindsight was that when the administration had only one person as spokesperson, there should have been joint House and Senate hearings so that they all would have been in one room. But they were separate hearings in the House and Senate. And so I'd be in the House in the morning, and then we'd go right up until one o'clock when the Senate would convene and I'd have to excuse myself. They didn't want to let me go.

And so here I was shuttling back and forth between the committee hearing rooms and periodically taking a half‑hour break to talk on speakerphone to the court proceedings in Fairbanks on the Mental Health Trust case. It was ‑‑ it was quite a juggling act for a period of 10 days or so there. It was ‑‑ it was not ‑‑ it was not easy and not a whole lot of fun.

And unfortunately, we came up two votes short in the House. It passed the Senate, our constitutional amendment passed the Senate and we were two votes short in the House, 26‑14.

Section 5: BILL SCHNEIDER: Yeah. It ‑‑ it seems amazing to me that ‑‑ that the founders of the Constitution would have established ‑‑ I mean, I can see it in terms of, you know, not showing preference to any particular group, but you would think that there would have been something farsighted like the need for certain residents under certain conditions to be given preference for a short period of time. You know, and I think isn't that the language that in times of shortage that the remote preference kicks in? TOM KOESTER: Yes. Yeah.

BILL SCHNEIDER: And yet, most people just clung on to that notion of rural preference universally. TOM KOESTER: Yeah. Yeah. And I think ‑‑ I think in ‑‑ in hindsight, my guess is the Supreme Court really didn't know how ‑‑ how dramatically that would divide Alaska.

I also think that ‑‑ that there was an argument that could have been made in the court. One of the consequences of the state subsistence law not being consistent with the federal law was that, in effect, the state lost management authority over fish and wildlife on federal lands.

Well the Constitution puts an obligation on the legislature to manage all the state's resources for the ‑‑ for the benefit of the people. When the Court found this law invalid, the Court, in my mind, basically prevented the legislature from fulfilling its obligation to manage the resources.

And I think if we had emphasized that, that here we have two conflicting mandates. You have the mandate that the state is to manage its own resources, and you have the mandate that fish and game is common use. Everybody has a right to it.

In my mind, the state managing its own resources trumps the other one. And if the federal law says if you don't do it this way, you're going to lose it, you're going to lose management authority, it seems to me that by making a state law consistent with the federal law, we uphold the ‑‑ the more fundamental constitutional obligation, which is to have state management of the resources. But we didn't. And we don't. So... BILL SCHNEIDER: There it is. TOM KOESTER: There it is. Yeah.

Section 6: BILL SCHNEIDER: Well, listeners here will want to know what your ‑‑ what you've done since the Mental Health Trust, so maybe a ‑‑ something ‑‑ TOM KOESTER: Well, the boundary dispute on the North Slope, the Dinkum Sands case, went to the court in 1997.

Since then, I've done some legal work for the city and borough of Juneau, some con ‑‑ I resigned from the Attorney General's Office in 1991, and so when the Dinkum Sands case went to the Supreme Court, I was in private practice representing the state on contract.

I've done a number of other contract things for the state. I've only had one private client in my practice, and that was on a very minor issue. And pretty much have represented the state. The last thing I worked on was another boundary dispute with the federal government involving Southeast Alaska, ocean boundary, maritime boundary in Southeast Alaska. And that case was decided in 19 ‑‑ or in 2006. And that was pretty much the last ‑‑ the last thing I did in ‑‑ in my practice.

I'm still an active member of the Bar Association, so if something exciting comes along, if anyone is overwhelmed by the interview here and my incite ‑‑ incisive analysis, I hope, I'm available. Other than that, I'm on the boards of a nonprofit social service agency, and that keeps me busy. I'm also on the board of a group that's trying to build a golf course here in Juneau.

And I'm ‑‑ Perseverance Theatre, Alaska's only professional theatre, which is located here in Juneau, has an endowment, got a $500,000 grant from the Doris Duke Foundation that was matched by donations from the state, the City and Borough of Juneau, private individuals, corporations, so it's up more than a million dollars. And I'm a member of a three‑person investment advisory committee for that endowment.

It was ‑‑ it was actually a pretty cool thing. There were six theatres nationwide, the Mark Tabor Forum, the Berkeley Rep, Long Beach Playhouse, Arena Stage in Washington D.C., and the public theatre in New York City, and Perseverance. So it's a pretty heady company for a small professional theatre here ‑‑ here in Alaska to be ‑‑ to be linked with those other pretty significant operations in big cities around the country. And we take pride that Perseverance was the first to fulfill its matching grant ‑‑

BILL SCHNEIDER: That's amazing. TOM KOESTER: ‑‑ obligation, when you compare our competition, it was pretty ‑‑ I think it was pretty cool that we did it before anybody else. BILL SCHNEIDER: Yeah. TOM KOESTER: So... BILL SCHNEIDER: Well, great. TOM KOESTER: Anyway.

Section 7: BILL SCHNEIDER: It ‑‑ it sounds to me, looking at your career, that you've certainly made a mark negotiating between different sides here as opposed to ‑‑ I mean, representing the state, but also representing the interests of minority groups within the state and their interests.

TOM KOESTER: Well, I don't know if I've made a mark. I know I've had a great ride. I mean, it's been a wonderful ‑‑ a wonderful, wonderful experience for me, the opportunities that I've had, in retrospect, are just ‑‑ I mean, it's pretty unbelievable the ‑‑ the things that I've been involved in and the things that I've been able to do while, I hope, doing good.

You know, there's ‑‑ I have a strong public service interest, and ‑‑ and I think that's one of the most gratifying things was that I truly have always felt that I was representing the entire public, and not ‑‑ not my client, right or wrong, but by ‑‑ by representing the state, trying to do the best for the greatest number of people.

BILL SCHNEIDER: Well, I think one of the things that comes out of this interview is myself and the general public might find it easy to look for good guys and bad guys, and I think what your interview has done is demonstrated the complexity and given us the impression that perhaps most of the players were ‑‑ were trying to reach a resolution that was not a win, but a satisfaction.

TOM KOESTER: I ‑‑ that's certainly the impression that I've had all the way through. I know there are many people in the mental health community who were critical of me, feeling that I was not sufficiently sympathetic to their needs. Unfortunately, in my position, I didn't feel that I could be because you asked why Cowper didn't push.

Well, my direction comes from the legislature through the Governor through the Attorney General to me. And my sense all along was we want to resolve this in a way that's fair to the mental health community and to the broader community of the state. And trying to strike that balance is what is so hard. It ‑‑ it's been ‑‑ it was very, very difficult.

And as I said, even with the final resolution, not everyone agreed. Not everyone agreed to that resolution. It was not a consensual resolution in the sense that everyone signed off on it.

There was one of the four plaintiff groups, the traditionally thought of as the mentally ill, that disagreed pretty violently and vehemently and fought tooth and nail to try to prevent the resolution from going through. It took a decision by Judge Greene affirmed by the Alaska Supreme Court to ‑‑ to finally resolve it, and it was over the objections of one of the parties.

So in ‑‑ in terms of, I think everyone's motives throughout were appropriate, it's never fun being the bad guy, but certainly when I ‑‑ I was going in there and it was seven attorneys to one, I felt like a lot of people thought I was the bad guy. But you know, I ‑‑ I would hope that with time, some of those wounds have healed and people at least, while not perhaps appreciating what I did, can understand where I was coming from and what I was trying to do.

Section 8: BILL SCHNEIDER: Maybe one ‑‑ one final question here. If you had been sitting when the Alaska Constitutional Convention, when they sat, with the wisdom that you have now and the knowledge you have now, what changes would you make? What ‑‑ what would you have proposed that ‑‑ differently?

TOM KOESTER: I don't think I would have changed anything. I ‑‑ I am such an admirer of the work the Constitutional Convention did. And I think if ‑‑ if I've been involved with groups like the conference of ‑‑ National Conference of Attorney Generals, NAG.

And I've spoken to the councils of state legislatures, and things like that. And the general sense that you get is that Alaska's constitution is a model. It really is. It has so many really, really wonderful things in it. Just a couple that I can think of.

The prohibition on dedicated funds I think is terrific because it gives the legislature annually the flexibility to choose among all competing demands and desires for funding. It doesn't take a part of the state budget and say that's off the table because it's going to go to this purpose no matter what.

The ‑‑ the process for appointing judges, not electing them but having a judicial council that screens applicants, sends nominees to the Governor, and the Governor appoints the judge, so that you don't have direct political campaigns running for judge. To me, that's brilliant because it ‑‑ it makes the process less political. It's like the federal system. The president nominates the judge and the Senate confirms.

I mean, obviously political branches are involved, they are going to be involved. But you don't have direct campaigns where a judge, once he takes the bench, in the back of his mind has some obligation to one constituency and not the other. And maybe it was even opposed by one.

The ‑‑ the potential for conflict is so great. I think the fact that we have an appointed Attorney General. So instead of the Governor running for office and an Attorney General running for office maybe on different sides of an issue, the Attorney General is part of the executive branch, implements the discretion that the Governor has, however much discretion that is. I think that's ‑‑ that's so much better than an elected Attorney General.

The natural resources article that requires the legislature to act in the best interest of the public, so you can't self‑deal, you can't do favors for your friends, you can't steer leases or state lands to ‑‑ you know, to certain people or constituencies.

BILL SCHNEIDER: But ‑‑ but couldn't ‑‑ couldn't the ‑‑ those framers have thought about the implications of some of the Mental Health Trust ‑‑ TOM KOESTER: Oh, I think they could have, but they had so much more on their plate. I mean, this was ‑‑ the Mental Health Trust was a ‑‑ was a pretty small piece, and it was ‑‑

it was federal. It was a federal law. It was not something that the framers were dealing with at ‑‑ at the time. You know, they were ‑‑ it would be ‑‑ it would be like saying, you know, the founding fathers in 1776, you know, really should have been thinking about whether we'll have a national bank or not. You know. I mean, it's ‑‑ it's not something that you want in your constitution. I think what they did is they did try to reconcile what they came up with.

For example, the prohibition on dedicated funds says, except to the extent required by federal law. So if there is a federal law that requires a dedication, then that's okay. BILL SCHNEIDER: So that would be a provision. Yeah.

TOM KOESTER: So ‑‑ but that's ‑‑ that's interesting, I had never thought of this before, but the subsistence issue, where federal law requires one thing and the court said the constitution prohibits that same thing, it seems to me that had I been on the court, I would have said, well, wait a minute. You know, the ‑‑ our constitutional framers were trying to reconcile the state organic document, the Constitution, with federal law.

And to now say that this constitution prohibits what the federal government requires, the consequence of which is the legislature lost the ‑‑ loses its ability to manage the resources, I just don't think that's what the framers intended.

And if they had known that this conflict was coming up, they would have said, we dealt with that by saying Section 1 of the natural resources article says the legislature shall manage all the resources for the benefit of all the people. BILL SCHNEIDER: Yeah. TOM KOESTER: So anyway. BILL SCHNEIDER: Well, this has been good. Thank you for -- thank you for taking all the time. TOM KOESTER: Well, certainly. I hope it's at least been understandable. BILL SCHNEIDER: It has.