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Hickel et al v. Southeast Conference (2/18/94), 868 P 2d 919
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Notice: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501.
THE SUPREME COURT OF THE STATE OF ALASKA
WALTER J. HICKEL, Governor of Alaska, )
STATE OF ALASKA, et al., )
) Supreme Court File
Nos. Petitioners/Appellants, ) S-5553/5573
) S-5093/5154 v.
) Superior Court File No.
) 1JU-91-01608
SOUTHEAST CONFERENCE, a non-profit )
Alaska corporation, et al., )
) O P I N I O N
Respondents/Appellees. )
)
)
SOUTHEAST CONFERENCE, a non-profit )
Alaska corporation, et al., )
)
Petitioners/Cross-Appellants, )
)
v. )
) [No. 4055 -
WALTER J. HICKEL, Governor of Alaska, ) February 18, 1994]
STATE OF ALASKA, et al., )
)
Respondents/Cross-Appellees. )
)
Appeal from the Superior Court of the
State of Alaska, First Judicial District,
Juneau,
Larry R. Weeks, Judge.
Appearances: Stephen C. Slotnick,
Assistant Attorney General, Juneau, Charles
Cole, Attorney General, Juneau, for Walter J.
Hickel, Governor of Alaska, State of Alaska,
et al. Myra M. Munson and Donald J. Simon,
Sonosky, Chambers, Sachse, Miller & Munson,
Juneau, for Southeast Conference and
Matanuska-Susitna Borough. David C. Crosby,
Wickwire, Greene, Crosby & Seward, Juneau,
for Leavitt, et al. Don Clocksin, Wagstaff,
Pope & Clocksin, Anchorage, for Alaska
Democratic Party, et al. Michael J. Walleri,
Tanana Chiefs Conference, Inc., Fairbanks,
for Demientieff, et al.
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews and Compton,
Justices.
COMPTON, Justice.
RABINOWITZ, Justice, and MATTHEWS,
Justice, dissenting in part.
This case involves the award of attorney's fees (fees)
and costs to the plaintiffs in the Hickel reapportionment case.
Hickel v. Southeast Conference, 846 P.2d 38 (Alaska 1992) (Hickel
I). The State contends that the superior court erred by (1)
failing to apportion awards by issue, (2) awarding fees for post-
trial litigation in which plaintiffs did not prevail, (3)
determining that the Alaska Democratic Party was a prevailing
party, and (4) awarding fees for noncompensable work before the
United States Department of Justice (DOJ). On cross-appeal, the
plaintiffs argue that the superior court erred in limiting
reimbursement of plaintiffs' expert witness costs. Pursuant to
an order of this court, this case also involves the initial
determination of plaintiffs' pending motions for an award of
attorney's fees and costs related to the review proceedings
before this court in Hickel I.
I. FACTUAL & PROCEDURAL BACKGROUND
In September 1991 several parties filed suits in
superior court challenging the state legislative redistricting
plan promulgated by Governor Walter J. Hickel.1 Pre-trial
preparation of the case proceeded during the fall and winter of
1991 while the DOJ reviewed the plan under section 5 of the
Voting Rights Act.2 Following a sixteen-day trial, the superior
court held that the plan was invalid because it violated the
Alaska Constitution. After granting the State's Petition
for Review, we affirmed the superior court's holding that the
plan violated the Alaska Constitution.3 Hickel I, 846 P.2d at
57. We remanded the case to the superior court with instructions
to (1) develop an interim redistricting plan for use in the 1992
elections, and (2) remand the plan to the Reapportionment Board
to develop a new permanent plan. Id. With full participation by
all the parties, the superior court appointed three masters to
draft an interim plan. During the course of the superior court's
proceedings in developing specific instructions to guide the
masters, the State filed an emergency motion for clarification
regarding House District 26, which was denied. The State also
filed an additional Petition for Review, on which it prevailed.4
After the superior court issued its interim redistricting plan,
the State filed another Petition for Review, on which the State
partially prevailed. Hickel I, 846 P.2d at app. G.
After final action on the interim redistricting plan,
each of the five plaintiffs petitioned the superior court for an
award of fees pursuant to Civil Rule 82. Based on the standard
set forth by this court for public interest litigants, Hunsicker
v. Thompson, 717 P.2d 358 (Alaska 1986), each plaintiff sought
full, reasonable fees. Although the State did not contest
plaintiffs' public interest status, the State objected to (1) the
amount plaintiffs requested, (2) the designation of the Alaska
Democratic Party as a prevailing party, (3) the request for fees
for any post-trial proceedings, (4) the request for full fees
when plaintiffs did not prevail on several issues, (5) the
request for fees and costs for time and material used in the
administrative proceeding before the DOJ, (6) the request for
costs for expert preparation time, and (7) the request for
various fees and costs that were allegedly unreasonable.
The superior court found that since all plaintiffs had
prevailed "on the main issue in the case,"they were entitled to
full reasonable fees under Civil Rule 82. The court rejected the
State's argument that fees should not be awarded for work on
specific issues on which plaintiffs did not prevail. The court
also held that plaintiffs were entitled to fees and costs for
work performed in the remedy phase of the case. Nevertheless,
the court did not award all the fees requested by plaintiffs.
The court denied (1) an award of costs for expert witness
preparation fees, (2) some paralegal costs claimed by plaintiffs,
(3) plaintiffs' billing of more than sixteen hours per day, and
(4) some portion of plaintiffs' travel time.
The superior court awarded plaintiffs a total of
$966,567.33.5 This appeal followed, and the matter was
consolidated with plaintiffs' petition for fees and costs related
to the appellate proceedings before this case.
II. DISCUSSION
A. APPORTIONMENT OF ATTORNEY'S FEE AWARDS BY ISSUE.
Pursuant to statute, the Alaska Supreme Court has the
authority to "determine by rule or order the costs, if any, that
may be allowed a prevailing party in a civil action."
AS 09.60.010. While Alaska Civil Rule 82 has been construed as
providing only for partial fees, this court has used its
authority to create an exception for public interest litigants.
"A prevailing public interest plaintiff is normally entitled to
full reasonable attorney's fees." Hunsicker v. Thompson, 717
P.2d 358, 359 (Alaska 1986); see also Anchorage Daily News v.
Anchorage Sch. Dist., 803 P.2d 402, 404 (Alaska 1990) (prevailing
public interest litigant entitled to "full amount of its
attorney's fees, to the extent that they are otherwise
reasonable"). Since the State has conceded that plaintiffs meet
the public interest standard in this case, plaintiffs are
eligible for full fees provided they are reasonable.
While the State does not dispute this general rule, it
argues that fees should only be awarded for those specific issues
on which plaintiffs prevailed. The State notes that AS 09.60.010
only allows the award of fees to prevailing parties. Because of
this, the State concludes that "full fees should not be awarded
to any litigant who has raised unrelated claims on which he or
she did not prevail or who has achieved only partial relief on
related claims." The State urges this court to adopt the
approach of the United States Supreme Court in Hensley v.
Eckerhart, 461 U.S. 424 (1983), and to apportion fees by
severable issue or degree of relief awarded. The State suggests
that the issue presented here is one of first impression:
"Should public interest litigants who only partially prevail be
awarded full fees?"
In response, plaintiffs argue that the law regarding
awards of attorney's fees in public interest cases is clear:
prevailing public interest litigants are entitled to full
reasonable fees. Plaintiffs note that numerous decisions by this
court hold that a party is prevailing if successful on the main
issue in contention, even if the party did not prevail on all
issues. Therefore, apportionment of fees by issue is
inconsistent with the approach taken by this court to fee awards.
Even if this court adopts the approach of Hensley, plaintiffs
argue, the issues involved are related and thus not severable.
Although awards of attorney's fees are ordinarily
reviewed under the abuse of discretion standard, the question of
whether the superior court erred in awarding fees based on issues
that plaintiffs lost is a question of law. Accordingly, this
court will apply its independent judgment, and will adopt the
rule of law most persuasive in light of precedent, reason and
policy. CTA Architects of Alaska, Inc. v. Active Erectors &
Installers, 781 P.2d 1364, 1365 (Alaska 1989); Guin v. Ha, 591
P.2d 1281, 1284 n.6 (Alaska 1979).
As an initial matter, we note that Hensley dealt
exclusively with fee awards under 42 U.S.C. 1988, and therefore
is not binding on this court in its application of the public
interest exception to Alaska Civil Rule 82. However, it may be
possible to use Hensley by analogy, since the policies underlying
1988 and the public interest exception are similar. Both fee
award provisions are intended to reward the successful plaintiff
acting as "a private attorney general," and to encourage
meritorious claims which otherwise might not be brought. See
Texas State Teachers' Ass'n v. Garland Indep. Sch. Dist., 489
U.S. 782, 793 (1989); Hensley, 461 U.S. at 430; Tobeluk v. Lind,
589 P.2d 873, 878 (Alaska 1979); Anchorage v. McCabe, 568 P.2d
986, 993-94 (Alaska 1977). We must first determine the
advisability of grafting the Hensley approach onto Alaska law.
1. Section 1988 Litigation & Hensley v. Eckerhart.
42 U.S.C. 1988 authorizes an award of a reasonable
attorney's fee and costs to prevailing parties in civil rights
litigation. Hensley, 461 U.S. at 430. To be a "prevailing
party" plaintiffs must "succeed on any significant issue in
litigation which achieves some of the benefit the parties sought
in bringing suit." Id. at 433 (quoting Nadeau v. Helgemoe, 581
F.2d 275, 278-79 (1st Cir. 1978)). This "generous formulation .
. . brings the plaintiff only across the statutory threshold. It
remains for the district court to determine what fee is
'reasonable.'" Id. The amount and reasonableness of the fee
award is to be determined on the facts of each case, and should
be evaluated according to the twelve factors set forth in Johnson
v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.
1974). One of these factors, the relationship of the results
obtained to the amount of the award, was the focus of Hensley.
Hensley held that the results obtained are particularly
important where a plaintiff is deemed prevailing, but has
achieved only partial or limited success. Hensley, 461 U.S. at
434. In this situation, two questions must be asked: (1) Did
the plaintiff fail to prevail on claims unrelated to claims on
which she succeeded? and (2) If the claims are interrelated, did
the plaintiff achieve a level of success making the hours
reasonably expended a satisfactory basis for making a fee award?
Id.
If the claims on which plaintiff failed to prevail were
unrelated to the successful claims, then the "work on an
unsuccessful claim cannot be deemed to have been 'expended in
pursuit of the ultimate result achieved.'" Id. at 435 (quoting
Davis v. County of Los Angeles, 8 Empl. Prac. Dec. (CCH) 9444,
at 5049 (C.D. Cal. 1974). If, however, the claims or issues were
interrelated, the Court stated that "[t]he result is what
matters." Id. Since "[s]uch a lawsuit cannot be viewed as a
series of discrete claims,"the court should "focus on the
significance of the overall relief obtained by the plaintiff in
relation to the hours reasonably expended on the litigation."
Id.
2. Application of Hensley to Alaska Civil Rule 82.
While Hensley is unobjectionable on its own terms,
there are several problems associated with extending the State's
interpretation of Hensley to Alaska's fee award approach for
public interest litigants. First, we have previously rejected
the suggestion that fees should be apportioned by issue. In Gold
Bondholders Protective Council v. Atchison, Topeka & Santa Fe
Railway, 658 P.2d 776, 779 (Alaska 1983), appellants contended
that the award of fees was unreasonable because most of the time
was spent on issues on which appellees did not prevail. We
described this contention as "untenable":
Rule 82(a) does not require that
attorneys' fees be calculated with reference
to the disposition of individual issues.
Rather, it expressly provides that a
reasonable award of fees shall be made, at
the trial court's discretion, to the
prevailing party. The clear meaning of that
provision is that the party who prevails on
the principal dispositive issue is entitled
to reasonable costs calculated according to
the trial court's discretion. We refuse to
now alter the purview of Rule 82 by requiring
the niceties in apportionment urged by the
[appellants].
Id. (citations omitted). This language indicates our
unwillingness to require apportionment of fees on the basis of
individual issues.6
Second, requiring trial courts to focus on the degree
of success when judging the reasonableness of the award would be
redundant in light of Rule 82's framework. Alaska's approach
already takes into account the degree of success at the initial
stage of determining prevailing party status. We have held:
[T]he prevailing party to the suit is
the one who successfully prosecutes the
action or successfully defends against it,
prevailing on the main issue, even though not
to the extent of the original contention. He
is the one in whose favor the decision or
verdict is rendered and the judgment entered.
Tobeluk v. Lind, 589 P.2d 873, 876 (Alaska 1979) (quoting Buza v.
Columbia Lumber Co., 395 P.2d 511, 514 (Alaska 1964)).7
Unlike Alaska's approach, the federal approach is
extremely generous in granting prevailing party status: a party
is eligible for a fee award if he or she succeeds on "any"
significant issue, or "when actual relief on the merits of his
claim materially alters the legal relationship between the
parties." Farrar v. Hobby, U.S. , 113 S. Ct. 566, 573
(1992). This lenient standard is complemented by a strict
standard of reasonableness that takes into consideration the
degree of plaintiff's success. Id. U.S. at , 113 S. Ct.
at 574. The Hensley approach to reasonableness makes sense in
the federal framework because of the ease with which one can
obtain prevailing party status. However, it does not necessarily
make sense in light of Alaska's framework.8
Finally, while we have declined to require
apportionment by issue in the past, we have allowed the trial
court the discretion to consider the prevailing party's varying
degree of success on issues when the court sets the award amount.
In Alaska State Bank v. General Insurance Co. of America, 579
P.2d 1362 (Alaska 1978), we affirmed the trial court's
determination that the appellee was the prevailing party. We
went on to say, however, that
it does not follow that the superior
court abused its discretion by declining to
award attorney's fees on each of the
contested issues comprising the litigation.
The superior court ruled against the
[appellee] on the waiver question, and it is
not "manifestly unreasonable"that it should
take that factor into consideration in
determining what overall amount of attorney's
fees and costs should be awarded to the
prevailing party.
Id. at 1369 (footnotes omitted). The important point is that the
determination of the fee award is left to the broad discretion of
the trial court. The trial court may apportion fees by issue in
setting a reasonable fee award. However, the trial court is not
required, as a matter of law, to do so.
For these reasons, we decline to require trial courts
to follow the Hensley approach to Civil Rule 82 cases.
Accordingly, we hold that the superior court did not err in
refusing to apportion fees by severable issue or degree of relief
awarded.
B. APPORTIONMENT OF ATTORNEY'S FEES ACCORDING
TO STAGE IN THE LITIGATION.
The State argues that the superior court erred in
awarding attorney's fees for post-trial litigation in which
plaintiffs did not prevail. The State contends that the post-
trial proceedings involved severable, unrelated issues on which
the State prevailed. Further, the State attempts to distinguish
this case from federal cases allowing awards for post-decree
litigation, arguing that plaintiffs' work during the post-remand
proceedings was not necessary to protect the rights secured at
trial, or to "monitor" compliance with the judgment.
Accordingly, plaintiffs should not have been awarded fees for
this phase of the litigation.
In response, plaintiffs argue that it makes no sense to
separate the post-trial remedial stage of the litigation for
purposes of awarding attorney's fees. Plaintiffs contend that
the remedy phase of the case is a natural continuation of the
case itself, not a new or different proceeding. They note that
every complaint in this case sought to invalidate the Governor's
plan and have it replaced by a new, constitutional plan.
We agree with the State that, under certain
circumstances, public interest litigants who prevail at trial
should not recover fees for post-trial proceedings in which they
do not prevail. Our decision to grant public interest litigants
full reasonable fees was designed to reward the successful
"private attorney general"and to encourage meritorious claims
that otherwise might not be brought. See, e.g., Anchorage v.
McCabe, 568 P.2d 986, 993-94 (Alaska 1977). However, the rule
was not intended to give such litigants carte blanche to litigate
post-trial with the knowledge that they can recover fees
regardless of whether they prevail.
In this case, however, we conclude that plaintiffs
should be allowed to recover for post-trial proceedings. All of
the fees sought by plaintiffs relate to attorney services
performed before a final judgment was entered in the trial court.
Under Civil Rule 82 attorney's fees are allowed a prevailing
party as a matter of course for services rendered up to the time
of the final judgment. The state's attempt to divide this case
into pre- and post-trial proceedings ignores the fact that all of
the proceedings preceded the final judgment and are thus within
the explicit coverage of Civil Rule 82.
Plaintiffs' work on remand and post-remand was related
to their work in having the Governor's plan held
unconstitutional. They were understandably reluctant to bow out
at the remedy stage and leave the preparation of a remedial plan
to the State. In fact, both the superior court and this court
recognized the propriety of plaintiffs' ongoing participation in
the superior court's development of an interim plan. This
court's order of June 8 provided in part:
5. Procedures and schedules regarding
the submission of proposed interim plans by
the parties and objections to the interim
plan formulated by the superior court shall
be established by order of the superior
court.
In accordance with this directive the superior court ordered the
parties to submit proposed orders relative to scheduling, the use
of experts and/or masters in drafting the interim plan, and
comments on whether or not the Eastern and Western Aleutians
could be unified in one district consistent with the Federal
Voting Rights Act.
The superior court later acknowledged the importance of
plaintiffs' participation:
They responded to multiple orders of the
court in the preparation of the interim plan
and helped shape the plan that was finally
approved. The plaintiffs provided experts,
appeared for hearings on a near daily basis
at the order of the court, responded to
motions relating to elections generally and
gave input that facilitated the management
and timing of elections. It was undoubtedly
a different interim plan because of their
input.
This acknowledgment evidences the relatedness of the trial and
post-trial stages of the litigation.9
Discussing the issue of separating stages of the
litigation for purposes of attorney's fees, the trial court
stated the following:
The court agrees that if the post-May 11
proceedings are viewed in isolation from all
that went before it, the plaintiffs were not
all a 'prevailing party' for that segment of
the litigation. However, this court does not
believe that it is a fair assessment of this
litigation to view the differing phases in
isolation. The litigation was comprised of
all phases, from the filing of a complaint to
the adoption of the final plan as approved by
the supreme court. In looking at all of that
litigation, the plaintiffs are the prevailing
parties as a whole. Reapportionment is too
complicated for any party to get everything
it wants but the plaintiffs are prevailing
parties because they obtained substantial
relief on the main issues.
This statement is both a correct interpretation of this court's
decisions under Rule 82, and a sound, practical choice.
Therefore, the trial court did not err as a matter of law in
declining to separate the stages of the litigation, since they
came before the final judgment and were significantly related.
C. THE ALASKA DEMOCRATIC PARTY'S STATUS AS
A PREVAILING PARTY.
The Alaska Democratic Party (ADP) challenged the
Governor's reapportionment plan on the basis that the
Reapportionment Board violated the Open Meetings Act, the Public
Records Act and the State Procurement Code.10 The superior court
held that the Open Meetings Act and the Public Records Act
applied to the Board and that the Board violated these acts.
However, the court also held that "[b]ecause of the other
decisions in this case, the public interest is better served by
not voiding the plan on the basis of Open Meetings Act
violations." The superior court granted ADP prevailing party
status, and awarded ADP full fees and costs in the amount of
$112,132.30.
On appeal, we affirmed the superior court's holding
that the Open Meetings Act and Public Records Act generally apply
to the activities of the Reapportionment Board. Hickel I, 846
P.2d at 43. Because the superior court did not grant relief on
this basis, however, we did not reach the questions of whether
there had in fact been violations or whether any such violations
warranted voidance of the plan. Id. at 57. The State
challenges the award of attorney's fees to the ADP on the basis
that the ADP was not a prevailing party.
Both the award of attorney's fees to the prevailing
party and the determination of prevailing party status are within
the broad discretion of the trial court. Adoption of V.M.C., 528
P.2d 788, 795 (Alaska 1974). This court will interfere with
these determinations only where the trial court's decision is
"manifestly unreasonable." Alaska Placer Co. v. Lee, 553 P.2d
54, 63 (Alaska 1976).
The State argues that the superior court abused its
discretion in awarding fees to the ADP because the ADP did not
prevail on the main issue in the case -- whether the original
plan should be declared void on the basis of procedural
violations committed by the Board. In response, plaintiffs argue
that the ADP was the prevailing party because it was successful
on the main issue. Plaintiffs point out that the ADP obtained
(1) a declaratory judgment that the Open Meetings Act applied to
the Board and that the Board violated the Act, and (2) an order
requiring the Board to comply with the Open Meetings Act in the
future.
In examining this issue, it is important to keep in
mind the principle underlying the Open Meetings Act and the
Public Records Act: open decision-making is one of the essential
aspects of the democratic process. Alaska Community Colleges'
Fed'n of Teachers, Local No. 2404 v. University of Alaska, 677
P.2d 886, 891 (Alaska 1984) (ACCFT). In ACCFT, we held that
open meetings statutes were not
primarily intended as vehicles for
individuals displeased with governmental
action to obtain reversals of substantive
decisions. What the statutes envision
instead is that non-conforming procedures be
righted as near to the point of derailment as
possible, and that the governmental process
be allowed to resume from there.
Id. (footnotes omitted). Accordingly, we hold that a public
interest litigant does not have to have a substantive decision
invalidated on the basis of governmental violations of the Open
Meetings Act or Public Records Act to be considered a prevailing
party. We agree with the superior court that, with respect to
the ADP, the main issue in this case was "whether the Open
Meetings Act and the Public Records Act apply to the
reapportionment board, and whether the Board violated these Acts
in preparing the proposed reapportionment plan."
As noted above, we did not review the superior court's
holding that the Board violated the Open Meetings Act and Public
Records Act, because the superior court did not grant relief on
that basis. Hickel I, 846 P.2d at 56-57. Nevertheless, this
holding becomes relevant in this case for purposes of reviewing
prevailing party status and the award of attorney's fees.
Although the superior court's declaratory judgment regarding
these violations is moot, the State is permitted to raise the
issue since the superior court awarded fees on this basis. See
LaMoureaux v. Totem Ocean Trailer Express, Inc. 651 P.2d 839, 840
n.1 (Alaska 1982) (this court will review an otherwise moot issue
on its merits to determine who the prevailing party is for
purposes of attorney's fees).11 Accordingly, we must determine
whether the superior court erred in holding that the Board
violated the Open Meetings Act and the Public Records Act.12
The superior court found that the Board committed the
following violations of the Open Meetings Act: (1) "failing to
give notice of teleconference cites [sic];"(2) "failing to make
materials available for teleconferences;"(3) "failing to take
roll call votes during teleconferences;"(4) "failing to give
reasonable notice of meetings;"and (5) "meeting outside of the
noticed meetings to do the business of reapportionment." The
court also found that the Board committed two violations of the
Public Records Act: (1) it ignored written requests to provide
information; and (2) it failed to make materials available in a
timely manner.
We disagree with the superior court that the Board's
handling of teleconferences violated the Open Meetings Act. The
Open Meetings Act allows, but does not require, the use of
teleconferencing "for the convenience of the parties, the public,
and the governmental units conducting the meetings."
AS 44.62.312(a)(6); See AS 44.62.310(a) ("attendance and
participation at meetings . . . may be by teleconferencing")
(emphasis added). While teleconferencing is not mandatory, the
Act requires certain procedures if it is used. These include
making materials available at teleconference locations, taking
votes by roll call, and providing reasonable public notice as to
the time, date and location of the teleconference location to be
used. AS 44.62.310.
In this case, the Board usually had only one meeting
site. However, the Board allowed any citizen to call in and
provide testimony by telephone, without necessarily travelling to
an official teleconference site. In the Board's view, this
approach expanded public access to the reapportionment process,
and was consistent with the provisions of the Open Meetings Act.
We agree. The participation of the public would have been more
meaningful had the individual callers been provided with
reapportionment materials. Nevertheless, the Board was only
required to hold open meetings -- it was not required to allow
citizens to call in or to set up teleconferencing centers.
AS 44.62.310. We therefore hold that the Board's procedure,
however imperfect, did not violate the Open Meetings Act.
However, we do agree with the superior court that the
Board violated the Act by providing inadequate notice for a
number of its meetings. The Act requires that "[r]easonable
public notice shall be given for all meetings required to be open
under this section." AS 44.62.310. The superior court found
that the Board violated its own guidelines as to reasonable
notice,13 failed to advertise in rural newspapers on several
occasions,14 and provided information about meetings that was
"varied and confusing."15 The superior court also found that the
manner of notification discouraged citizen participation. Based
on a review of the record, we do not find the superior court's
factual findings to be clearly erroneous. We therefore hold that
the Board violated the Open Meetings Act by failing to provide
reasonable notice regarding the Board's meetings throughout the
state.
The superior court also held that the Board violated
the Open Meetings Act by "meeting outside of noticed meetings to
do the business of reapportionment." In Brookwood Area
Homeowners Association v. Anchorage, 702 P.2d 1317 (Alaska 1985),
we held that "a 'meeting' includes every step of the deliberative
and decision-making process when a governmental unit meets to
transact public business." Id. at 1323. We noted that "the
question is not whether a quorum of a governmental unit was
present at a private meeting. Rather, the question is whether
activities of public officials have the effect of circumventing
the OMA." Id. at 1323 n.6.
The superior court found that Board members had one-on-
one conversations with each other, in which they discussed
reapportionment affairs and districting preferences, and
solicited each other's advice. It also found that the "dearth of
[substantive] discussion on the record, combined with the manner
of some Board members at trial, as well as other evidence
presented at trial, convinces this court that important decision
making and substantive discussion took place outside the public
eye." Our review of the record indicates support for the factual
finding that the Board conducted some of its reapportionment
business outside scheduled public meetings. Based on this
finding, we agree with the superior court that the Board violated
the Open Meetings Act.
We also agree that there were minor violations of the
Public Records Act. The Public Records Act states that "[e]very
person has a right to inspect a public record in the state . .
. . Every public officer having the custody of records not
included in the exceptions shall permit the inspection, and give
on demand . . . a certified copy of the record." AS 09.25.120.
The superior court found that some written requests for records
were ignored, that materials were not made available in a timely
manner, and that people had difficulty obtaining information.
Our review of the record indicates support for these findings,
and leads us to conclude that the Board violated the Public
Records Act.
On the basis of the above analysis, we conclude that
the superior court did not err in holding that the Board violated
the Open Meetings Act and the Public Records Act. Accordingly,
the superior court did not abuse its discretion in granting the
ADP prevailing party status or in awarding the ADP attorney's
fees.
D. AWARD OF FEES AND COSTS FOR WORK ALSO ATTRIBUTABLE
TO DEPARTMENT OF JUSTICE PROCEEDINGS.
Both parties agree that fees and costs incurred by
plaintiffs in opposing preclearance of the reapportionment plan
before the DOJ cannot be recovered under Rule 82. However, the
parties disagree over the proper attribution of certain costs.
The State argues that the superior court erred in
awarding costs that were partially attributable to the DOJ
proceedings. The State's primary argument is that costs
incurred originally for DOJ proceedings are not compensable even
if the work product was later used at trial.16 The State proposes
a "first-use" rule, whereby dual-use work product would be
attributed only to the first proceeding in which it is used.17
Plaintiffs argue against the creation of such a rule, and deny
that the work objected to was used "first, or even primarily, in
the preclearance process."
We decline to adopt the "first-use"rule advocated by
the State. It is neither desirable nor possible to allocate
related work in two concurrent actions to a discrete "first use."
The superior court noted:
Work that was done solely for DOJ
proceedings should not be recompensed here.
However, work that was done for state
litigation that was also used in DOJ
proceedings should be included under this
order. The two proceedings had related
issues and to exclude attorney's fees because
the work had a "dual purpose"is arbitrary
and would encourage inefficiency.
Further, the superior court made an effort to allocate dual-use
work, rather than denying recovery altogether. For instance, Mat-
Su and SEC split their bills for dual-use work, attributing two-
thirds to the state and one-third to the DOJ proceeding.
It was not manifestly unreasonable for the superior
court to award compensation for work that was used in both
proceedings. Therefore, we affirm the superior court's decision.
E. ADMINISTRATIVE RULE 7(c) -- LIMITATION ON PUBLIC
INTEREST LITIGANTS' EXPERT WITNESS COSTS.
On cross-appeal, plaintiffs argue that the superior
court erred in refusing to adopt a public interest exception to
Alaska Administrative Rule 7(c). Whether there is a public
interest exception to Rule 7(c) is a question of law to which
this court will apply its independent judgment. CTA Architects
of Alaska, Inc. v. Active Erectors & Installers, Inc., 781 P.2d
1364, 1365 (Alaska 1989). To the extent the superior court's
decision was consistent with the legal principles adopted by this
court, its decision will be reviewed only for an abuse of
discretion. Id.
Rule 7(c) states that recovery of expert witness costs
is "limited to the time when the expert is employed and
testifying and shall not exceed $50.00 per hour, except as
otherwise provided in these rules." This court has interpreted
Rule 7(c) to mean that "[a] party may not recover costs for
experts' preparation time nor any costs associated with the
experts if they do not testify." Atlantic Richfield Co. v.
State, 723 P.2d 1249, 1253 (Alaska 1986). Based on Rule 7(c),
the superior court refused to compensate plaintiffs for
$129,832.13 in expert costs incurred in preparation for trial and
in developing an interim reapportionment plan.
Plaintiffs argue that the public interest exception to
Civil Rule 82 -- which provides for full reasonable attorney's
fees for prevailing public interest litigants -- should be
extended to Administrative Rule 7(c)'s limitation on expert
costs. They contend that the rationale is the same: encouraging
"plaintiffs to raise issues of public interest by removing the
awesome financial burden of such a suit." Anchorage v. McCabe,
568 P.2d 986, 990 (Alaska 1977). Plaintiffs note that this court
has already held that costs may not be assessed against a losing
public interest litigant. McCormick v. Smith, 799 P.2d 287, 288
(Alaska 1990). Therefore, they argue that the same reasons for
preventing an award of costs against a losing plaintiff suggest
that the prevailing public interest litigant receive full
reimbursement of expert witness costs.
In response, the State notes that this court has
allowed an award of costs for experts' pre-trial preparation time
only in (1) cases involving bad faith or reprehensible conduct,
or (2) in divorce cases where awards of costs are not governed by
Rule 7(c).18 The State argues that policy considerations do not
support creating a rule whereby prevailing public interest
litigants would receive full expert witness preparation fees. In
fact, Alaska Civil Rule 94 -- which allows courts to relax the
rules to prevent injustice -- provides ample protection for
public interest litigants without the rigidity of an "automatic"
rule. Further, the State claims that Rule 7(c) must be amended
under Alaska Administrative Rule 44 rather than by a decision of
this court. This court clearly has the authority to
create an exception to Rule 7(c). We can "determine by rule or
order the costs, if any, that may be allowed a prevailing party
in a civil action." AS 09.60.010. However, the fact that this
power exists does not mean that we should exercise it here. We
decline to create a public interest exception to Administrative
Rule 7(c), and rely instead on the trial court's exercise of
discretion under Civil Rule 94.
Civil Rule 94 allows the trial court to relax or
dispense with a rule of procedure if it is "manifest to the court
that a strict adherence to [the rule] will work injustice."
Alaska R. Civ. P. 94. Thus, the superior court had the
discretion to ignore Administrative Rule 7(c) if the court felt
that its application would work injustice on the plaintiffs in
this case. The superior court could have decided that leaving
plaintiffs with uncompensated expert costs would unjustly chill
public interest litigation or "undercut the purpose of the public
interest attorney fee rule." In fact, the superior court
explicitly considered these arguments under Civil Rule 94, and
declined to "abrogate Administrative Rule 7(c)"for any of these
reasons.
The superior court's decision to apply Administrative
Rule 7(c) in this context, without modification pursuant to Civil
Rule 94, did not constitute an abuse of discretion.
F.
PLAINTIFFS
' FEE
REQUEST ON
APPEAL.
Four plaintiffs in this action seek attorney's fees for
work performed before this court. Leavitt has requested $23,280
(Motions of Aug. 19, 1992 & Jan 8, 1993), ADP $12,380 (Motion of
Jan. 7, 1993), SEC $25,200 (Motion of Jan. 18, 1993), and Mat-Su
$24,631.25 (Motion of Jan. 18, 1993). The total fees requested
on appeal are $85,491.25.19
The State makes essentially the same arguments for
reducing fees on appeal that it made regarding fees awarded at
the trial level. The State argues that (1) each of the petitions
brought by the State during the course of this litigation must be
viewed as separate proceedings, and that fees should be awarded
only to the extent of plaintiffs' success on each matter; (2) the
fees requested for the first petition are unreasonable; (3) the
ADP is not entitled to any fees since it did not prevail; and (4)
no fees should be awarded for work on the population base issue,
since the State prevailed.
Alaska Appellate Rule 508(b) provides: "In all cases
of affirmance of a judgment or any order or decision of the
superior court, costs shall be allowed to the appellee or
respondent unless otherwise ordered by the court." Since
plaintiffs successfully defended against the State's Petition for
Review and since we substantially affirmed the superior court's
decision, they are entitled to an award of fees. Further, we
have the discretion to determine the amount of the award:
"Attorney's fees may be allowed in an amount to be determined by
the court." Alaska R. App. P. 508(e).
We have held that it is "appropriate to award full
attorney's fees on appeal to a successful public interest
litigant." Thomas v. Bailey, 611 P.2d 536, 539 (Alaska 1980).20
However, our decision today qualifies this rule to a certain
extent. As we recognized above, the public interest rule "was
not intended to give [public interest] litigants carte blanche to
litigate post-trial with the knowledge that they can recover fees
regardless of whether they prevail." See supra text at 13.
Likewise, a public interest litigant's general prevailing party
status does not mean the litigant should recover fees incurred in
bringing or defending petitions for review in which that party
does not prevail.
This case involved three separate petitions for review.
While plaintiffs generally succeeded in having the superior
court's decision affirmed, plaintiffs did not prevail on the
second and third petitions, or on their cross-petition.
Accordingly, plaintiffs should not recover fees incurred in
defending against these two petitions, or in bringing their cross-
petition.21 We therefore direct plaintiffs to resubmit their fee
and cost requests, deleting fees and costs incurred defending
against the State's second or third petition for review, or in
bringing their own cross-petition for review.
III. CONCLUSION
The superior court did not err as a matter of law in
refusing to apportion fees according to issue or stage in the
litigation. We agree with the superior court that the Board
violated the Open Meetings Act and Public Records Act.
Accordingly, we conclude that the superior court did not abuse
its discretion in awarding the ADP prevailing party status or in
generally awarding plaintiffs their full, reasonable attorney's
fees and costs.
The superior court did not err in awarding allocated
compensation for work used in both state and DOJ proceedings, nor
did it err in refusing to create a public interest exception to
Administrative Rule 7(c). We therefore AFFIRM the superior
court's award of attorney's fees, and the superior court's
limited award of expert witness costs.
Respondents may not recover for time spent on the
State's second and third petitions for review, or on their cross-
petition for review, since they did not prevail. We therefore
direct respondents to resubmit their fee and cost requests to
reflect this holding.
RABINOWITZ, Justice, with whom, MATTHEWS, Justice,
joins dissenting in part.
I dissent from the majority's holding that Alaska
Administrative Rule 7(c) limits reimbursement of a prevailing
public interest litigant's expert witness costs to $50.00 per
hour for time spent testifying.22 Plaintiffs assert that they
incurred $134,103.06 in expert witness fees and associated costs,
and that the superior court awarded only $4,270.93 in costs for
expert witnesses.
In my view, resolution of this issue is controlled by
two prior decisions of this court. In Gilbert v. State, 526 P.2d
1131, 1136 (Alaska 1974), we concluded that "it is an abuse of
discretion to award attorneys' fees against a losing party who
has in good faith raised a question of genuine public interest
before the courts."23 Building on Gilbert, we subsequently held
that a prevailing public interest litigant is entitled to an
award of full attorney's fees. Anchorage v. McCabe, 568 P.2d
986, 991 (Alaska 1977). In part, we said:
The Gilbert public interest
exception to Rule 82 is designed to encourage
plaintiffs to bring issues of public interest
to the courts. In holding that as a matter
of sound policy attorney's fees should not be
assessed against public interest plaintiffs,
we relied in Gilbert on the appellant's
argument "that awarding fees in this type of
controversy will deter citizens from
litigating questions of general public
concern for fear of incurring the expense of
the other party's attorney's fees." Adoption
of the City's contention that public interest
plaintiffs should not be awarded attorney's
fees would be inconsistent with the above
stated policy.
Id. at 990 (footnote omitted). More particularly, we noted that
the basic rationale of the Gilbert public interest litigant
exception to the Civil Rule 82 partial award of attorney's fees
is "to encourage plaintiffs to raise issues of public interest by
removing the awesome financial burden of such a suit." Id.
In my view these same considerations mandate adoption
of a prevailing public interest litigant exception to the partial
award of costs of expert witnesses called for in Administrative
Rule 7(c).24 Failure to fully reimburse the reasonable costs of
necessary expert witnesses employed by prevailing public interest
litigants creates an unwarranted barrier to litigation of
important issues of public interest. I would therefore remand
this case to the superior court for the purpose of awarding such
costs.
_______________________________
1 Two of the suits were dismissed; the remaining five
suits were consolidated for trial before Superior Court Judge
Larry Weeks. The remaining plaintiffs include the Alaska
Democratic Party (ADP), the Matanuska-Susitna Borough (Mat-Su),
Dementieff, Leavitt and Southeast Conference (SEC) (collectively
referred to as "plaintiffs"). For a more detailed account of
this litigation, see Hickel I, 846 P.2d at 42-44.
2 Some of the parties opposed preclearance of the plan by
the DOJ.
3 However, we reversed the superior court's holding that
the Board's decision not to exclude non-resident military from
the population base was arbitrary and unreasonable. Hickel I,
846 P.2d at 55.
4 Order of June 11, 1992 (disapproving the superior
court's requirement that native influence districts include at
least 35% native population). Hickel I, 846 P.2d at app. D.
5 Fees and costs were allocated as follows: Mat-Su was
awarded $212,831.00 in fees and $59,597.26 in costs; SEC was
awarded $229,703.33 in fees and $68,125.78 in costs; ADP was
awarded $91,046.00 in fees and $21,086.30 in costs; Leavitt was
awarded $176,062.41 in fees and $40,306.77 in costs; and
Dementieff was awarded $54,793.75 in fees and $13,014.73 in
costs.
6 The State argues that Gold Bondholders does not control
here since that case did not involve an award of full fees to
public interest litigants. The State contends that the need to
apportion fees by issue arises only in the context of full fee
awards to public interest litigants. In response, plaintiffs
argue that it would make no sense to adopt a harsher rule for
public interest litigants than for ordinary litigants. While
Gold Bondholders arose in a slightly different context, its
language regarding apportionment of fees by issue remains
relevant to the issue presented by this case.
7 We have also noted that "a party does not have to
prevail on all the issues in the case to be a 'prevailing
party.'" Day v. Moore, 771 P.2d 436, 437 (Alaska 1989)
(citations omitted). The party must be successful with regard to
the main issues in the action, and need not prevail on every
subsidiary issue. Cooper v. Carlson, 511 P.2d 1305, 1308 (Alaska
1973).
8 Even if we were to adopt the Hensley approach, it is
far from clear that it would require apportionment of fees by
issue in this case. The Hensley analysis only applies where
plaintiffs have achieved partial or limited success. The Supreme
Court noted:
[W]here a plaintiff has obtained
excellent results, his attorney should
recover a fully compensatory fee. . . . In
these circumstances the fee award should not
be reduced simply because the plaintiff
failed to prevail on every contention raised
in the lawsuit. Litigants in good faith may
raise alternative legal grounds for a desired
outcome, and the court's rejection of or
failure to reach certain grounds is not a
sufficient reason for reducing a fee. The
result is what matters.
Hensley, 461 U.S. at 435 (citations omitted). One response to
the State's contentions in this case might be that the plaintiffs
have achieved "excellent" results. This conclusion would
presumably foreclose a Hensley analysis into the degree of
plaintiffs' success, and would militate against apportionment of
fees by issue.
Alternatively, it is doubtful that the State could
demonstrate that plaintiffs failed to prevail on claims unrelated
to claims on which they succeeded. The State argues that the
superior court erred in awarding attorney's fees on the basis of
two issues unrelated to plaintiffs' overall success in the
litigation: (1) the issue of the exclusion of nonresident
military personnel, and (2) the issue of substantive due process.
However, these claims are simply not unrelated, severable claims.
First, the issues were an integral part of plaintiffs' overall
case aimed at invalidating the Governor's reapportionment plan.
Different, alternative legal theories to accomplish the same goal
should not be treated as unrelated claims. See Hensley, 461 U.S.
at 435. Second, plaintiffs correctly note that these theories
involved a common core of facts underlying the case as a whole:
the Reapportionment Board's decision-making process, guidelines,
and rationales for the promulgated plan.
9 Federal case law supports reimbursement of fees and
costs for post-judgment activities which are specifically
authorized. Pennsylvania v. Delaware Valley Citizens' Counsel
for Clean Air, 478 U.S. 546 (1986) (monitoring of defendant's
performance); Turner v. Orr, 785 F.2d 1498 (11th Cir. 1986)
(monitoring); Adams v. Mathis, 752 F.2d 553 (11th Cir. 1985)
(monitoring); Miller v. Carson, 628 F.2d 346 (5th Cir. 1980)
(injunction to vindicate rights).
10 ADP also challenged the plan on other grounds not
relevant to this appeal.
11 Although we continue to generally support the holding
in LaMoureaux, we are cognizant of the potential for attorneys to
misuse judicial resources under such circumstances. Attorneys
should not read LaMoureaux or this opinion as "an invitation to
losing defendants to engage in what must be one of the least
socially productive types of litigation imaginable: appeals from
awards of attorney's fees, after the merits of a case have been
concluded, when the appeals are not likely to affect the amount
of the final fee." Hensley v. Eckerhart, 461 U.S. 441, 442
(1983) (Brennan, J., concurring in part and dissenting in part).
12 As this is a question of law, we review this issue de
novo. To the extent that it involves factual questions, this
court will reverse only if the superior court's factual findings
were clearly erroneous. Brosnan v. Brosnan, 817 P.2d 478, 480
(Alaska 1991).
13 Although the executive director adopted a policy of
five days notice for meetings, the Board provided less notice for
a number of meetings. For example, three days notice was given
for the January 14 meeting, four days for the March 4 meeting,
and four days for the April 29 meeting.
14 The following meetings were given either no notice or
insufficient notice in the rural papers: (1) January 14,
(2) February 20, (3) February 27, and (4) April 9.
15 Judge Weeks found that (1) notices for the April 29
meeting in St. Mary's were varied and confusing, as to time and
whether there was a meeting or hearing; (2) the display ad for
the May 27 and 28 meetings in Juneau were varied and confusing,
as to time and dates and whether there would be a hearing; and
(3) many of the notices did not make it clear whether a meeting
or hearing would take place.
16 The State also argues that plaintiff Leavitt
underestimated the time it spent on DOJ proceedings. This issue
is easily resolved. Leavitt submitted two affidavits to the
superior court explaining the basis for a ten percent allocation.
The superior court used this information in judging the
reasonableness of the allocation and award, noting: "The State
offers no factual basis for its assertions contradicting the
plaintiffs' claims, and this court accepts the firm's
representations and finds the billing reasonable." This decision
did not constitute an abuse of discretion.
17 Under the first-use rule proposed by the State, the
State would pay for (1) any reasonable work-product first
introduced in state court before being reused in a different
proceeding, and (2) the full cost for any reasonable modification
or enhancement to a previously used work-product.
18 See Hilliker v. Hilliker, 828 P.2d 1205, 1206 (Alaska
1992) (costs may be awarded based on economic circumstances in
divorce cases since award of costs is not governed by rule 7(c));
Atlantic Richfield Co. v. State, 723 P.2d 1249, 1253 (Alaska
1986) ("[a] party may not recover costs for experts' preparation
time"); Miller v. Sears, 636 P.2d 1183, 1195 (Alaska 1981) (an
award of additional costs may be justified in cases involving bad
faith).
19 The State's total of $85,011.25 fails to take into
account Leavitt's additional request for $480 for preparing its
reply memorandum on appeal.
20 A prevailing public interest litigant is normally
"entitled to the full amount of its attorney's fees, to the
extent that they are otherwise reasonable." Anchorage Daily News
v. Anchorage Sch. Dist., 803 P.2d 402, 404 (Alaska 1990).
The reasonableness of the fee request should be judged
in light of "all relevant factors, including the nature and value
of the services rendered, the duration and complexity of the
litigation, the novelty of the issues presented, the amount in
controversy, and the [party's] time-keeping procedures."
Atlantic Richfield Co. v. State, 723 P.2d 1249, 1252 (Alaska
1986).
21 At the same time, plaintiffs need not fear having Rule
82 attorney's fees assessed against them in this context.
Gilbert v. State, 526 P.2d 1131, 1136 (Alaska 1974).
22 Alaska Administrative Rule 7(c) provides:
Recovery of costs for a witness called
to testify as an expert is limited to the
time when the expert is employed and
testifying and shall not exceed $50.00 per
hour, except as otherwise provided in these
rules. A party may not recover costs for
more than three expert witnesses as to the
same issue in any given case, unless the
judge permits recovery for an additional
number of expert witnesses.
23 Accord Girves v. Kenai Peninsula Borough, 536 P.2d
1221, 1227 (Alaska 1975).
24We have held that costs may not be assessed against a
losing public interest litigant. McCormick v. Smith, 799 P.2d
287, 289 (Alaska 1990).
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