Nageak says he’s not leaving lawsuit

In Thursday morning courtroom testimony, Rep. Benjamin Nageak, D-Barrow, said he’s not giving up on his attempt to overturn an August primary he lost.

“Yes, I do want to continue to be a party in this case,” Nageak told Anchorage Superior Court Judge Andrew Guidi by phone.

Nageak, who represents House District 40 (encompassing the North Slope and Northwest Arctic Borough) is challenging the results of August’s Democratic primary. He lost that race, 825-817, to fellow Democrat Dean Westlake.

With no Republican in the race, the winner of the primary wins a seat in the Legislature.

Over the weekend, Nageak attorney Tim McKeever filed a motion to withdraw Nageak from the lawsuit and replace him with several North Slope voters. Under state law, an election challenge can be filed either by the losing candidate or by 10 voters.

McKeever appeared to subsequently withdraw that motion, but the action left confusion about Nageak’s role in the case.

On Wednesday, Nageak said under oath that he didn’t have a problem with voters taking his place as plaintiff in the lawsuit.

“I can’t do anything with it,” he said. “I need help, and I think there’s people out there who can do that for me, to speak on my behalf.”

“To me, the testimony was clear,” said Thomas Amodio, an attorney for Westlake.

On Thursday, under questioning from assistant attorney general Margaret Paton-Walsh, Nageak said he was unable to properly hear the questions and answered incorrectly.

Nageak, who has hearing problems and uses a hearing aid in the Legislature, had been testifying by phone from a restaurant in Massachusetts.

“I’m sorry, I’ve been over on the other side of the world, and I couldn’t hardly hear anybody,” he said. “I was in a really crowded place yesterday, in the middle of the street, sirens were blaring, and I’m in a quiet place now. I don’t want to be dropped from the lawsuit.”

Under further questioning, Nageak said he was not aware that his attorneys were filing a motion to drop him from the lawsuit.

In subsequent briefs, McKeever said the request to change the list of plaintiffs “inadvertently omitted Benjamin Nageak from the caption and list of parties.”

The state and Amodio have challenged that assertion, believing that Nageak wants out of the lawsuit, and the addition of voters was an attempt to allow him to leave while continuing the suit.

The trial is expected to conclude Monday, with Guidi rendering judgment soon thereafter. Speaking to attorneys Thursday, however, Guidi said the case “is apparently inevitably bound for appeal” to the Alaska Supreme Court.

• Contact reporter James Brooks at 523-2258 or

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