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Matanuska Electric Assoc. et al. v Rewire The Board et al. (12/07/2001) sp-5511
Matanuska Electric Assoc. et al. v Rewire The Board et al. (12/07/2001) sp-5511
Notice: This opinion is subject to 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, phone (907)
264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
MATANUSKA ELECTRIC )
ASSOCIATION, INC., a nonprofit)
electric cooperative, and ) Supreme Court No. S-9506
WAYNE CARMONY, in his capacity)
as General Manager, ) Superior Court No.
) 3PA-99-226 CI
Appellants, )
)
v. )
) O P I N I O N
REWIRE THE BOARD, )
SCOTT STERLING, )
and EDWARD C. WILLIS, ) [No. 5511 - December 7, 2001]
)
Appellees. )
)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Palmer,
John Reese, Judge.
Appearances: Stephen M. Ellis and Jeffrey P.
Stark, Delaney, Wiles, Hayes, Gerety, Ellis & Young, Inc.,
Anchorage, for Appellants. A. William Saupe and William S.
Cummings, Ashburn & Mason, Anchorage, for Appellees.
Before: Fabe, Chief Justice, Matthews, Bryner,
and Carpeneti, Justices. [Eastaugh, Justice, not participating.]
BRYNER, Justice.
I. INTRODUCTION
Members of the rural electrical cooperative Matanuska
Electric Association, Inc. (MEA), unhappy with their coop board's
plans to acquire the assets of Chugach Electric Association, formed
a group called Rewire the Board (Rewire) and forced a recall
election of MEA directors. During ensuing litigation, the superior
court held MEA in contempt for four violations of court orders
forbidding attempts to influence the recall election results. At
the conclusion of the case, the court awarded Rewire full
reasonable attorney's fees as a prevailing public interest
litigant. MEA appeals, challenging the attorney's fees award and
the contempt judgments. We affirm the award of attorney's fees.
We also affirm the superior court's judgment of contempt on two
counts but reverse on the remaining two counts.
II. FACTS AND PROCEEDINGS
A. Background
The issues presented in this appeal require us to
describe the history of the case in considerable detail. MEA is an
electrical cooperative organized under Alaska Statutes 10.25 and
governed by a board of directors. At an October 1998 board
meeting, MEA's directors met in executive session to discuss a
planning committee's proposal that MEA buy the assets of another
public utility, Chugach Electric. The board approved the proposal
and began negotiations with Chugach Electric that same day.
A group of MEA members calling themselves Rewire the
Board submitted to MEA a proposed amendment to MEA's bylaws and a
petition to recall all of MEA's directors. The recall petition
alleged that the board members had failed to give proper notice of
a board meeting and violated board policies and open meeting
requirements. MEA and Rewire member Scott Sterling requested MEA's
membership list, which he sought in order to verify the signatures
on Rewire's recall petition. MEA denied Sterling's request for the
membership list and rejected as untimely Rewire's proposals to
amend MEA's bylaws.
B. Superior Court Proceedings
Rewire and two individual plaintiffs, Sterling and Edward
Willis, [Fn. 1] filed suit seeking declaratory and injunctive
relief. Rewire moved for an order requiring MEA to obtain the
services of a neutral accountant to verify the signatures on its
recall petition, requiring MEA to share its member list with
Rewire, and requiring MEA to accept as timely for voting at the
next annual meeting Rewire's proposed bylaw amendment.
MEA opposed Rewire's motion, arguing that Rewire was
merely seeking to advance the interests of the International
Brotherhood of Electrical Workers (IBEW), that Rewire's recall
petition and proposed bylaw amendment were invalid, and that Rewire
did not have a legitimate need for MEA's membership list. MEA also
filed a counterclaim seeking to have Rewire's recall petition
declared invalid on grounds that it contained material
misrepresentations and failed to state valid cause to remove
directors.
Rewire amended its complaint to request an order
requiring MEA to place its recall petition on the agenda at MEA's
next annual meeting. It also sought an order appointing a special
master to preside over the annual meeting and requiring MEA to
place a recall vote on the agenda at the next annual meeting,
notify members, permit a vote at the annual meeting, and allow
Willis to inspect MEA's financial records relating to the Chugach
Electric takeover.
The superior court ruled that the proposed bylaw
amendment was timely, that it was not illegal as MEA claimed, and
that it should be placed before MEA members at the annual meeting.
The court also ruled that the open meeting violation charged in
Rewire's recall petition was legally sufficient, that
simultaneously accusing multiple directors of wrongdoing did not
invalidate the recall petition, and that the mail-balloting
provision in MEA's bylaws did not apply to recall elections. The
court declined to enjoin MEA from expending funds to shape the
results of the recall election but ordered it to provide its member
list and financial records relating to the Chugach Electric
takeover to Rewire. The court also ordered MEA to report the total
number of valid signatures on Rewire's recall petition and, if the
number of valid signatures was insufficient, to justify the
rejection of any signatures alleged to be invalid.
MEA moved for partial reconsideration, insisting that it
should not be required to disclose so many financial records and
arguing that it had validated sufficient signatures and should not
be required to continue counting. MEA's motion for reconsideration
was denied.
MEA sought to depose Rewire to learn the identity of
Rewire's members and financial backers. Rewire moved for an order
quashing the deposition as premature under Alaska Civil Rule 26 and
unlikely to yield relevant information. MEA conceded that the
noticed deposition was premature under discovery rules, but
requested expedited discovery. Rewire opposed MEA's request.
The superior court denied MEA's request for expedited
discovery and issued an order quashing the notice of deposition.
The order also clarified and confirmed the court's earlier ruling
that mail balloting did not apply in recall elections. Rewire then
moved for a hearing to air contentions that MEA had violated the
superior court's prior order by failing to meet with Rewire to
discuss how the recall election would be conducted, failing to
supply a final tally of valid signatures, and failing to disclose
financial records as ordered. MEA countered by moving for summary
judgment, seeking to have Rewire's petitions declared invalid.
Rewire cross-moved for summary judgment. The superior court denied
MEA's summary judgment motion and granted Rewire's cross-motion.
C. Proceedings in This Court and Recall Election
MEA petitioned this court for review of the superior
court's rulings. We granted limited review of the superior court's
order requiring MEA to conduct a recall election, and we determined
that under the MEA bylaws, MEA members were entitled to vote in the
recall election by mail. Our order, issued one day before MEA's
annual meeting, set forth procedures to govern the meeting and
subsequent mail balloting. We then returned full supervisory
authority over this case to the superior court.
The day after we issued our order, MEA placed an
advertisement in the Anchorage Daily News that appeared to violate
provisions in our order forbidding MEA from attempting to influence
the results of the recall election. Sua sponte, we ordered MEA to
show cause why it should not be held in contempt. After hearing
argument, we found that MEA's advertisement had violated the order,
but concluded that the violation was not wilful and declined to
hold MEA in contempt.
MEA proceeded to hold its annual meeting and to conduct
the recall election. In keeping with the procedures that this
court had established, Rewire was given time at the meeting to
present its charges against the directors, and the directors were
given an opportunity to respond. MEA members then voted using mail
ballots that included a summary of Rewire's charges and the
directors' responses. After the deadline for returning mail
ballots, MEA counted all ballots, reconvened the annual meeting,
and announced the results of the recall election: all directors had
retained their positions.
D. Post-Recall Proceedings
While mail balloting on the recall was in progress, MEA
sought permission from the superior court to announce the results
of regular coop elections that were concluded during the opening
day of MEA's annual meeting. To protect against the possibility
that announcing these election results might influence the ongoing
mail ballot process, the superior court denied MEA's requests.
Rewire subsequently complained of MEA activities that allegedly
violated the spirit of the superior court's order barring public
announcements by MEA. Based on these alleged violations, Rewire
demanded that MEA be required to show cause why it should not be
held in contempt. After conducting a hearing on Rewire's motion,
the superior court found MEA guilty of four acts of contempt and
fined MEA a total of $1,000.
Rewire later moved for attorney's fees encompassing all
work related to the recall petition and election process. MEA
opposed Rewire's motion. The superior court found Rewire to be the
prevailing party in the litigation and ruled that the organization
was a public interest litigant. Based on these findings the court
awarded Rewire $91,243 as full reasonable attorney's fees.
MEA appeals. The sole issues on appeal are whether MEA
should have been held in contempt and whether Rewire was entitled
to its attorney's fees award.
III. DISCUSSION
A. Standards of Review
To determine whether Rewire was entitled to prevailing
party status, we must first examine the superior court's ruling on
the legal merits of the recall issue. We apply our independent
judgment to determine whether the superior court erred in granting
Rewire's cross-motion for summary judgment and declaring that
Rewire's recall petitions were valid and required a membership
vote. [Fn. 2]
If we determine that the superior court's underlying
rulings were correct, we then review for an abuse of discretion the
court's determinations that Rewire was the prevailing party, that
Rewire was a public interest litigant, and that actual attorney's
fees of $91,243 incurred by Rewire were reasonable. [Fn. 3]
On the issue of contempt, we will set aside the superior
court's findings that MEA intentionally acted to influence the
results of the recall election in wilful violation of a court order
only if the findings are clearly erroneous. [Fn. 4]
B. Attorney's Fees
The superior court awarded Rewire $91,243 in attorney's
fees as a prevailing public interest litigant. MEA contends that
Rewire did not deserve to be designated the prevailing party
because its recall effort lacked legal merit.
1. Rewire prevailed.
Under Alaska law, the prevailing party is the one who
successfully prosecuted or defended the action and prevailed on the
main issue. [Fn. 5] MEA posits that this case was primarily about
whether a recall election should be held, insists that the recall
petition was invalid as a matter of law and should not have been
sent to a vote, and concludes that MEA should therefore have
prevailed on the main issue. Rewire responds that its suit was
primarily about enabling coop members to exercise membership
rights, points out that it requested and received multiple forms of
relief, [Fn. 6] and argues that, in any event, it properly
prevailed on all issues.
The superior court ruled that Rewire's recall allegations
warranted an election and granted Rewire other relief. The court
therefore did not consider the relative importance of Rewire's
success in obtaining various forms of relief. [Fn. 7] Accordingly,
we begin by reviewing the trial court's ruling that Rewire's
petitions were legally valid, even though that issue became
functionally moot when MEA's directors all retained their seats in
the recall election. [Fn. 8]
Alaska Statute 10.25.140 requires that an electrical
cooperative's bylaws "provide for the removal of directors from
office for cause and for the election of their successors."
Article IV, section 5 of the MEA bylaws does so:
Any member may bring charges for cause against
a board member and, by filing with the Secretary such
charges in writing together with a petition signed by at
least five per centum (5%) of the members, may request
the removal of such board member by reason thereof. Such
board member shall be informed in writing of the charges
at least forty (40) days prior to the meeting of the
members at which the charges are to be considered and
shall have an opportunity at the meeting to be heard in
person or by counsel and to present evidence in respect
of the charges and the person or persons bringing the
charges against him shall have the same opportunity. The
question of the removal of such board member shall be
considered and voted upon at the meeting of the members
and any vacancy created by such removal may be filled by
vote of the members at such meeting without compliance
with the foregoing provisions with respect to
nominations.
On its face, Rewire's recall petition accused MEA board members of
violating provisions of Alaska law and MEA's bylaws relating to
open meetings:
We, the undersigned, as member-owners of
Matanuska Electric Association, Inc. (MEA), under Article
IV, Section 5 of the MEA bylaws, bring charges for cause
against Barbara Miller, [William] Folsom, James Hermon,
Rosemarie DePriest, Craig Campbell, Rodney Cottle, and
Wesley Pollock based on their violations of the state law
and the MEA bylaw requiring Board meetings to be open (AS
10.25.175 and Bylaw Article III, Section 8), and based on
their failure to give notice of board meetings as
required by Bylaw Article III, Section 3. . . .
We hereby request removal of the listed Board
members by reason of each of the acts of wrongdoing
described above, any one of which constitutes sufficient
cause, standing alone, to warrant removal of each listed
Board member, and request that a special meeting of the
MEA member-owners be held at the earliest possible date
to consider and vote on removal.[ [Fn. 9]]
Addressing these allegations, the superior court ruled
that the charge of violating state law and bylaw requirements
governing open meetings was a legally sufficient basis for recall.
Concerning the petition's language alleging that board members
failed to provide notice of a board meeting, the court ruled that
the accusation might have been legally sufficient if properly
charged but that in fact it was not properly charged. The court
reasoned that the MEA bylaw cited by the recall petition in support
of this charge -- article III, section 3 -- dealt only with notice
of MEA membership meetings, not board meetings. In the court's
view, the bylaw provision governing board meetings -- article V,
section 3 -- only required board members to be notified of board
meetings. The court thus concluded that the petition's charge of
failing to give notice of a board meeting was facially
"insufficient to support a recall." The court nevertheless
determined that the properly charged open meeting violation was
severable from the improper notice violation; on that basis, the
court ruled that MEA was required to submit the open meeting charge
to its membership.
MEA challenges this ruling, arguing that the failure-to-
give-notice charge and allegations that Board policies had been
violated amounted to material misrepresentations invalidating the
entire petition. MEA also contends that the recall petition was
invalid because it named multiple directors. Finally, MEA argues
that the open meeting charge should not have been sent for a member
vote because Rewire did not properly present evidence supporting
the charge.
a. Severing legally insufficient charges from the
ballot
MEA contends that the recall petition was invalid because
it contained legally insufficient charges and misrepresentations.
MEA notes that the recall petition's allegation that the board had
violated article III, section 3 of MEA's bylaws by failing to give
notice of a board meeting could not have been true because article
III, section 3 applies to member meetings rather than board
meetings. MEA also argues that the allegation that board members
had violated board policies could not be cause for removal, because
any board action inconsistent with board policy would operate as an
implicit policy amendment.
Citing a corporate proxy solicitation case, Brown v.
Ward, [Fn. 10] MEA claims that including these "misrepresentations"
invalidated Rewire's recall petition. In Brown a corporation sued
to prevent a shareholder from voting proxies he received after
sending a proxy solicitation that contained statements, which the
corporation contended were false and misleading. [Fn. 11] Because
state statutes forbidding false statements in proxy solicitations
had not become effective when the shareholder sent his proxy
solicitation, the Brown court applied a common law requirement
"that proxy solicitations be free from materially false or
misleading statements."[Fn. 12] The court compared federal
standards of materiality with those set forth in the Second
Restatement of Torts and determined that the proper inquiry was
whether the misrepresentation would have been likely to influence
other shareholders deciding whether to grant their proxies. [Fn.
13] The court found Ward's proxy solicitation to be materially
false as a matter of law and invalidated the proxies he obtained
using the solicitation. [Fn. 14]
MEA contends that corporate proxy solicitations are
similar to Rewire's recall petition because "[b]oth involve
solicitations of fellow shareholders/members in an attempt to
influence who the directors of the corporation will be." MEA
argues that in both situations there is a public interest in
preventing shareholders from selecting their leadership based on
false information and that invalidation of the signatures obtained
through misrepresentations is the only way to prevent a faction
from unfairly controlling the corporation.
But, in our view, corporate proxy solicitations differ
significantly from rural electrical coop recall petitions. As
Rewire correctly observes, allegations in a recall petition "are,
by definition, disputed charges to be considered and resolved by
the members." To support its argument that the open meeting charge
was severable from any legally insufficient charges in the petition
and was therefore properly sent to a member vote, Rewire relies on
the principles expressed in a trio of state election law cases --
Meiners v. Bering Strait School District, [Fn. 15] McAlpine v.
University of Alaska [Fn. 16] and von Stauffenberg v. Committee for
an Honest and Ethical School Board. [Fn. 17]
In Meiners we considered a petition to recall school
board members -- a process governed by state statute. [Fn. 18] As
an initial point of reference, we noted the need to "avoid wrapping
the recall process in such a tight legal straightjacket that a
legally sufficient recall petition could be prepared only by an
attorney who is a specialist in election law matters."[Fn. 19] We
proceeded to hold that, when a recall petition sets forth multiple
allegations -- some that meet statutory recall criteria and others
that are insufficient -- the insufficient grounds may be severed
and the valid grounds submitted to voters without revision. [Fn.
20] In reaching this conclusion, we explained that the proper way
for challenged board members to defend themselves from legally
sufficient but unfounded charges is to exercise their right to
include a rebuttal statement on the ballot. [Fn. 21] We rested our
conclusion on our desire to avoid "artificial technical hurdles"
and on public policy favoring the interpretation of recall statutes
in a way that permits the public to express its will. [Fn. 22]
We extended Meiner's reasoning to the initiative process
in McAlpine, where a university challenged an initiative that
proposed to create a statewide system of community colleges and to
grant the system property from the university. [Fn. 23] We
determined that the initiative's proposed grant of university
property would violate statutory and constitutional provisions
forbidding appropriations by initiative. [Fn. 24] Relying on
Meiners, however, we declared that the appropriate remedy was to
sever the offensive part of the initiative and place the remaining
parts on the ballot. [Fn. 25]
We revisited and elaborated on the issue of recall
petitions in von Stauffenberg, which involved an effort to recall
five school board/assembly members. [Fn. 26] In that case the
superior court concluded that the petition's first and fourth
paragraphs stated adequate grounds for recall and ordered those
paragraphs certified to appear on the ballot. [Fn. 27] School
board members appealed, arguing that the first and fourth
paragraphs were legally insufficient and that the superior court
erred in failing to inquire into the truthfulness of the
allegations. [Fn. 28] Although we determined that the disputed
provisions were legally insufficient to support recall, we allowed
those provisions to be severed and held that the superior court had
correctly refused to evaluate the truthfulness of the legally
sufficient allegations. [Fn. 29]
Rewire persuasively argues that rural school boards are
substantially similar to rural electrical cooperative boards and
that Meiners, McAlpine, and von Stauffenberg should therefore
inform our analysis here.
Like the statute in Meiners, article IV, section 5 of the
MEA bylaws allows removal of board members for cause, requires the
collection of signatures to be filed with a clerk, and provides
board members against whom charges have been brought a forum in
which to refute the accuracy of the charges before a vote is taken.
[Fn. 30] In the present setting, then, just as in the rural school
board setting considered in Meiners, important considerations of
public policy favor an approach that places all legally sufficient
charges on the recall ballot to avoid erecting "artificial
technical hurdles"to recall and allow the process to operate in a
way that permits the electorate to express its will.
Nothing in the MEA bylaws renders invalid a recall
petition that includes both legally sufficient and legally
insufficient charges. We conclude, then, that the superior court
did not err in requiring MEA to place Rewire's open meeting charges
on the agenda at the annual meeting.
b. Naming multiple directors
MEA also contends that Rewire's recall petition was
invalid because it named multiple directors. MEA relies on
Zimmerman v. Municipal Clerk of the Township of Berkeley, [Fn. 31]
a New Jersey superior court case involving a petition to remove a
mayor and a council member from office for mismanagement. [Fn. 32]
The Zimmerman court commented that it made "good sense"to
"requir[e] a separate petition for each incumbent sought to be
recalled."[Fn. 33] But it based its decision on New Jersey
statutes that it construed as expressly requiring a separate
petition for each elected official recalled. [Fn. 34] Zimmerman
has never been followed outside New Jersey.
Rewire points out that neither MEA's bylaws nor Alaska
laws include the one-at-a-time requirement found in New Jersey
election statutes. The Alaska statute governing electrical
cooperatives requires coop bylaws to "provide for the removal of
directors from office for cause"but does not specify the manner in
which directors may be removed or whether they must be removed
individually. [Fn. 35] MEA's bylaws enable any member to "bring
charges for cause against a board member"requesting "the removal
of such board member." The bylaws use the singular, "such board
member,"to describe an accused director's rights to notice and an
opportunity to present evidence. But there is no clear one-at-a-
time requirement.
We have not read such a requirement into the statutes
governing school board recalls. [Fn. 36] As mentioned in our
discussion of severance, there is good reason to take a similar
approach when interpreting recall requirements for electrical coop
directors. We conclude that Rewire did not act improperly by
listing multiple directors in its recall petition.
c. Evidentiary requirements
MEA's last argument on the merits is that no recall
election should have been required because Rewire failed to present
sufficient evidence establishing the truth of the open meeting
charge.
First, MEA argues that the "for cause"requirement of
AS 10.25.140 [Fn. 37] and article IV, section 5 of the MEA bylaws
[Fn. 38] would be meaningless unless petitioners were required to
prove that cause actually existed. MEA relies on Mitchell v.
Concerned Citizens of CVEC, Inc., [Fn. 39] an Alabama case
involving the recall of electrical cooperative trustees. In
Mitchell a coop trustee who had been removed by membership vote
sued for reinstatement on grounds that his opponents had not
presented evidence showing cause to remove him. [Fn. 40] The
Mitchell court held that the members should be asked to vote on
removal only if the trustee's opponents had offered evidence
showing cause for removal. [Fn. 41] The court concluded that "if
the evidence presented established a cause, then whether the weight
of the evidence presented at the hearing was great enough to
justify Mitchell's removal was a question for the Cooperative
members voting."[Fn. 42]
MEA asks that this court follow Mitchell by holding that
unless petitioners present evidence supporting the charges against
the directors, they have not carried their burden of establishing
cause for removal. MEA recognizes that, in the context of school
board recalls, we have emphasized that voters are responsible for
determining the truth or falsity of the charges and the judiciary's
role is confined to assessing the legal sufficiency of the charges.
[Fn. 43] But MEA argues that the recalls of school board members
are functionally different from the recall of coop directors
because in school board recalls there is no meeting at which
charges and rebuttals are made. MEA suggests the electrical coop's
annual meeting might function as a "mini-trial"producing a record
that can be reviewed to determine whether sufficient evidence of
wrongdoing was presented. [Fn. 44] According to MEA, allowing a
recall vote without requiring evidence of cause for removal would
render the cause requirement meaningless. MEA contends that at the
annual meeting Rewire did not present sufficient evidence of an
open meeting violation, so the charge should never have been put to
a member vote.
Rewire denies that it was required to offer evidence
supporting its open meeting charge at the annual meeting and
insists that, as in Meiners and von Stauffenberg, the question of
the veracity of legally sufficient charges lies exclusively with
voters. Rewire argues that the annual meeting was not equivalent
to a trial and that the court should not evaluate evidence of what
happened at the annual meeting. Rewire emphasizes the ways in
which the meeting differs from a trial -- lack of discovery, cross-
examination, etc. -- and argues that imposing a Mitchell-like
evidentiary requirement would render the recall process too
cumbersome for coop members to use. Rewire also insists that
evidence supporting the open meeting charge was presented at the
annual meeting.
In school board recall elections, compliance with the
cause requirement is tested by evaluating the legal (rather than
factual) sufficiency of the charges against office holders. [Fn.
45] Contrary to MEA's assertion, that model demonstrates that no
evidentiary threshold is necessary to make the "for cause"
requirement meaningful. And, while it is true that public recall
elections differ from the process described in the MEA bylaws, the
meeting described in the MEA bylaws does not necessarily have the
trial-like character MEA claims.
The MEA bylaws provide that accused board members and
persons bringing charges against them must have the opportunity "to
present evidence in respect of the charges"at a meeting of the
members and that "[t]he question of the removal of such board
member shall be considered and voted upon at the meeting of the
members." The imperatives are that both sides be given the
opportunity to present evidence and that a member vote be held.
The MEA bylaws do not condition the vote on whether persons
bringing charges against a board member choose to use their
opportunity to present evidence. Nor do the bylaws suggest that
anyone other than the voting membership is responsible for
evaluating the truth of the charges against a board member.
Here, we conclude that the applicable recall process did
not condition the vote on Rewire's ability to produce evidence
supporting its charge at the annual meeting. Accordingly, we hold
that the superior court based its prevailing-party finding on a
correct evaluation of the underlying merits of the case.
2. Public-interest-litigant status
Under Alaska Rule of Civil Procedure 82(b)(2), prevailing
parties who do not recover a money judgment are awarded a fraction
of their actual attorney's fees. [Fn. 46] But prevailing public
interest litigants are entitled to full reasonable attorney's fees.
[Fn. 47] In this case, MEA questions the superior court's
determination that Rewire was a public interest litigant.
Determining whether a party is a public interest litigant
requires us to inquire into the "'the character of the professed
public interest litigant and the nature of that litigant's real
financial stake in the lawsuit.'"[Fn. 48] A party is properly
considered a public interest litigant if (1) the case was designed
to effectuate strong public policies; (2) numerous people would
benefit if the litigant succeeded; (3) only a private party could
be expected to bring the suit; and (4) the litigant lacked
sufficient economic incentive to bring suit. [Fn. 49] MEA argues
that Rewire should not have been considered a public interest
litigant because it had economic incentives to bring suit. [Fn. 50]
MEA claims that Rewire was controlled by the IBEW, which was trying
to use Rewire to install union-friendly directors in MEA's board.
When making this argument to the superior court, MEA
submitted an affidavit from MEA's director of member and public
relations, Bruce Scott, who described five of Rewire's directors as
having "ties to the IBEW."[Fn. 51] MEA pointed out that Rewire
admitted receiving financial support from the IBEW. MEA cites
Fairbanks Fire Fighters Ass'n, Local 1324 v. City of Fairbanks [Fn.
52] to argue that potential economic benefit to IBEW members should
deprive Rewire of public-interest-litigant status; MEA also cites
Kachemak Bay Watch, Inc. v. Noah [Fn. 53] for the proposition that
the party seeking public- interest-litigant status bears the burden
of proving a lack of economic incentives to sue. MEA insists that
"[f]or purposes of determining whether a party is a public interest
litigant, the primary focus must be on who is funding the
litigation." MEA claims that, by refusing to reveal its funding
sources, Rewire failed to prove entitlement to public-interest-
litigant status. [Fn. 54]
Rewire argues that it was properly considered a public
interest litigant because its members -- including Scott Sterling
and Edward Willis -- were residential electrical consumers who
would not gain substantial financial benefit from Rewire's suit.
Rewire argues that its consumer members should not be deprived of
public-interest-litigant status simply for receiving contributions
from other organizations. We agree that contribution sources are
not determinative of public interest status.
We have never held that a group's status as a public
interest litigant depends on its source of funding. In Citizens
for the Preservation of the Kenai River, Inc. v. Sheffield, we held
that it was not an abuse of discretion to consider a non-profit
organization formed to challenge the validity of a regulation
prohibiting use of certain boats on the Kenai River to be a public
interest litigant, even though some members had economic interests
that would prevent them from personally qualifying for public
interest status:
The economic incentives of the members
represented by [Citizens] vary considerably from person to person.
For example, one member of [Citizens], who is a lodge owner and
used boat dealer, estimated in an affidavit that he will suffer a
loss of $20,000 to $30,000 per year as a result of the 35
horsepower limitation. Several other members claimed lesser losses
from inability to use or sell their large motors, and the like. We
can speculate that those members that did not submit affidavits had
even smaller economic incentives. However, whether an entity is a
public interest litigant cannot depend on the interests of a single
member. Rather, it must depend on the interests of typical
members. We find that the superior court could have concluded
that, of the alleged one hundred or more individuals represented by
[Citizens], all but a few had economic incentives that were
insubstantial or diffuse enough to satisfy the fourth element of
the public interest test.[ [Fn. 55]]
Whether a group satisfies the fourth prong of the public-
interest-litigant test thus depends on the interests of typical
members. [Fn. 56] When all or most members who control a group or
association would individually reap substantial economic benefits
from successful litigation, the group itself may properly be denied
status as a public interest litigant. [Fn. 57] But a group may be
a public interest litigant even though some members might profit
from successful litigation. [Fn. 58] Here, Rewire presented
sufficient evidence to make a prima facie showing that most of its
members did not have a substantial economic interest in the
litigation.
As we stated in Gwich'in Steering Committee v. State,
Office of the Governor, when a group claiming to be a public
interest litigant provides relevant information about its members'
interests and the opposing party does not provide detailed
information to rebut the assertion of public-interest-litigant
status, the group may be considered a public interest litigant.
[Fn. 59]
In this case, Rewire provided information supporting the
superior court's determination that Rewire's members were
residential electrical consumers who individually could hope to
gain little economic benefit from the removal of the accused MEA
directors. Rewire alleged that it had registered with MEA as a
member group attempting to influence the results of a coop
election. In its verified complaint, Rewire described itself as
"an unincorporated association composed of members of the Matanuska
Electric Association, Inc. seeking to recall all of the incumbent
members of the board of directors."
Rewire repeated this self-characterization in a later
memorandum supporting its motion for a preliminary injunction and
in its amended complaint. Rewire co-chair Scott Sterling testified
at MEA's annual meeting that Rewire represented 5,000 residential
electrical consumers who signed the recall petition and Rewire
maintained that position in seeking attorney's fees. When moving
for attorney's fees, Rewire described itself as "an informal
committee of MEA members who shared a common concern regarding
MEA's Board, its secret decision making, its disregard of
membership rights, and its unrestrained spending of membership
funds on a futile campaign to take over Chugach Electric." Rewire
further specified that its members included Scott Sterling, Edward
Willis, and other residential consumers of electricity from MEA.
Rewire emphasized that it sought declaratory and injunctive relief
and that it had never sought monetary damages.
At various times, MEA supplied the superior court with
evidence that the IBEW had provided money to Rewire, that five of
Rewire's directors had loose personal ties to the IBEW, and that
the IBEW formally supported Rewire's efforts. That evidence might
have supported, but did not compel, a finding that Rewire's suit
was aimed at improving the IBEW's bargaining position to the
benefit of union members.
Nevertheless, MEA complains that it was improperly denied
discovery of Rewire's funding sources. But MEA did not properly
request discovery of Rewire's funding sources when opposing
Rewire's motion for attorney's fees. [Fn. 60]
Given the totality of the evidence, then, substantial
evidence supported rejection of MEA's contention that Rewire was
driven by the economic goals of IBEW members. The superior court
did not abuse its discretion when ruling that Rewire was entitled
to full reasonable attorney's fees as a public interest litigant.
3. The size of Rewire's attorney's fees award
Rewire moved the superior court for a total attorney's
fees award of $91,243. In opposing Rewire's motion, MEA argued
that Rewire's proposed award included $55,493.50 in improper fees.
After receiving Rewire's reply and updated figures, the superior
court issued an order awarding Rewire $91,243 as full reasonable
attorney's fees.
MEA contends that this award improperly included fees
incurred for work outside the scope of this litigation -- such as
work related to the general recall effort -- and fees incurred for
appellate work. MEA also complains that the format of Rewire's
billing statements exacerbated this problem of improper billing.
According to MEA, entries reflecting improperly billed work were
lumped with potentially proper billings; these composite entries
masked the time Rewire's attorneys actually spent on this case. In
light of these multiple-task entries, MEA calculates that
$55,493.50 should be subtracted from Rewire's award.
At the outset, we reject MEA's claim of inadequate
documentation. Rewire's original motion for attorney's fees was
accompanied by an affidavit of counsel attesting that Rewire had
incurred $89,038 in total attorney's and paralegal fees, that
Rewire's attached summary accurately reflected the time actually
spent, and that all fees were necessarily and appropriately
incurred. A table with short descriptions of work performed,
arranged by billing attorney and date, was attached. Rewire later
submitted a correction and updated the attorney's fees figure to
$91,243. No greater specificity was required.
MEA next asserts that Rewire should not have been awarded
various fees incurred before Rewire filed its suit or for fees
related to the general recall effort, as opposed to the lawsuit
itself. But in our view, the billings included in this disputed
category fall sufficiently close to the zone of active litigation
to be compensable under Civil Rule 82. Most of the work in this
category appears to have been performed in anticipation of or in
preparation for active litigation, including matters such as
preparation before requesting a court order or action related to
the recall that was necessary to comply with the court's
directives. Since Rewire could not reasonably be expected to
attempt compliance with the court's decisions without guidance from
its attorneys, the superior court did not abuse its discretion in
extending the award of Rewire's attorney's fees to work within this
category.
MEA's last point presents a more difficult issue. MEA
contends that the superior court should not have awarded Rewire
fees incurred in responding to MEA's petitions for appellate
review. MEA argues that, under Appellate Rule 508(e), only this
court has power to award fees for work performed in Supreme Court
proceedings. MEA contends that our decisions in State, Department
of Highways v. Salzwedel, [Fn. 61] O.K. Lumber Co. v. Providence
Washington Insurance Co., [Fn. 62] and Hickel v. Southeast
Conference [Fn. 63] support its position. But these cases are not
controlling.
Salzwedel does say that the "Appellate Rules govern
appellate proceedings,"[Fn. 64] citing Continental Insurance Co.
v. United States Fidelity & Guaranty Co. [Fn. 65] for that
proposition. [Fn. 66] But Salzwedel did not purport to hold that
the superior court lacked authority to award appellate fees in all
situations. It held only that Civil Rule 72(k) ordinarily does not
entitle landowners to compensation for appellate attorney's fees in
eminent domain proceedings. [Fn. 67] OK Lumber is likewise
inapposite. There, OK Lumber challenged a small portion of an
attorney's fees award that reflected work performed in connection
with a petition for review to this court. [Fn. 68] In addressing
this point, we simply assumed arguendo that the appellee had no
right to recover fees for work on interlocutory appellate
proceedings. [Fn. 69] We nonetheless affirmed the superior court's
overall award, finding that it was reasonable, even excluding the
time spent on the petition for review. [Fn. 70]
And Hickel also fails to support MEA's position. There,
in denying a prevailing party public interest litigant any award
for fees incurred preparing unsuccessful petitions to this court,
we stated that "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."[Fn. 71] But we said nothing about
fees incurred for successful petitions or for opposing unsuccessful
petitions.
Indeed, the concerns that we expressed in Hickel suggest
that a prevailing public interest litigant should normally recover
full reasonable fees for successful petitions, and we have
expressly recognized this proposition in an analogous setting.
Specifically, when contractual or statutory fee-shifting provisions
entitle a party to full, reasonable attorney's fees, we have held
that the superior court may award the overall prevailing party
attorney's fees incurred in appellate work that was not dispositive
on the overall merits of the case. [Fn. 72]
Given these prior decisions, we cannot say that it was an
abuse of discretion to award Rewire attorney's fees incurred in
responding to MEA's petitions for review. Although MEA's first
petition yielded an order reversing the superior court's decision
to forbid mail balloting, the order upheld the decision to require
a recall election and also included important protections and
clarifications that Rewire requested. Further, Rewire successfully
opposed MEA's second petition. We therefore affirm the award of
attorney's fees to Rewire.
C. Contempt
Our remand order of April 28, 1999, established ground
rules governing the period between MEA's annual meeting and the
conclusion of mail balloting for the recall election. The order
included language that barred MEA from attempting to influence the
vote:
In order to maintain a fair election process,
MEA, including its board, management, and other persons, shall be
prohibited, from the date of the meeting until the votes have been
counted, from using or expending MEA funds, facilities, staff time,
or other resources to advertise, campaign, or otherwise attempt to
influence, directly or indirectly, the votes of the members in the
recall election. Individual board members are not prohibited from
acting to defend themselves against the recall but may not use MEA
funds, facilities, staff, or other resources in so doing. This
order does not impose any campaign prohibitions against any other
individuals or groups, including Rewire.
On April 29, 1999, the Anchorage Daily News printed an
MEA advertisement that violated this order. But after a hearing on
the issue, we concluded that the violation was not wilful and
declined to hold MEA in contempt.
During the contempt hearing before this court, MEA
expressly represented that it would not release future information
without Rewire's approval or authorization from the superior court.
After the case returned to the superior court on remand, MEA sought
consent from Rewire to publish a newsletter reporting that MEA
members had set voting and attendance records at the annual
meeting. Rewire refused to consent to the publication, fearing
that it might affect the ongoing recall mail balloting process.
MEA then asked the superior court to authorize publication of the
newsletter article. The superior court rejected MEA's request,
ruling that it appeared to violate this court's April 28 order
prohibiting MEA from expending funds to influence the recall
election.
A short time later, Rewire moved the superior court to
order MEA to show cause why it should not be held in contempt for
violating the publicity order. In support of its motion, Rewire
complained of numerous violations, including: that MEA posted
information on its internet web site that was meant to influence
the balloting process; that MEA's director of member and public
relations, Bruce Scott, had driven a company car to photograph and
intimidate picketers supporting Rewire; and that Scott had spoken
to the Alaska Star (a local newspaper) and had released the results
of an advisory vote to the Frontiersman (another local newspaper)
without permission from Rewire or the superior court. After a
hearing on Rewire's allegations, the superior court found MEA
guilty of four counts of contempt under AS 09.50.010(5): [Fn. 73]
(1) giving a statement to the Alaska Star; (2) intimidating recall
supporters; (3) publishing an internet article titled "MEA members
set voting, attendance records"; and (4) failing to remove from the
MEA web site an open letter from MEA's general manager, Wayne
Carmony, that criticized Rewire.
MEA appeals these contempt convictions. MEA initially
suggests that, because the superior court's decision was based on
a paper record and MEA was held in contempt for violating an order
that this court issued, we should decide de novo whether MEA was in
contempt. Rewire counters that the superior court's findings
should be set aside only if clearly erroneous.
We reject MEA's argument for de novo consideration and
will review the contempt orders under the standard advocated by
Rewire. Our approach is consistent with the deferential review
used by courts in other jurisdictions. [Fn. 74] It also comports
with our usual rule that factual findings should be set aside as
clearly erroneous if a review of the record leaves us firmly
convinced that a mistake has been made. [Fn. 75] We turn, then, to
the evidence relating to each of the acts of contempt.
Count 1: Bruce Scott's statement to the Alaska Star
On May 6, 1999, the Alaska Star published an article
reporting the results of an advisory vote showing MEA members
favored acquisition of Chugach Electric's assets. The Alaska Star
article quoted MEA's director of member and public relations, Bruce
Scott, as stating that Rewire had opposed MEA's plans to offer
prizes for participation in the coop elections. When ordered to
show cause why it should not be held in contempt, MEA submitted an
affidavit of Scott, who stated that he had been contacted in the
usual course of business by a reporter from the Alaska Star and
that he had simply answered a question directly posed to him.
Rewire did not contend that Scott's statement about the prizes was
inaccurate and did not offer any evidence other than a copy of the
Alaska Star article.
The superior court found that Scott's interview with the
Alaska Star "was intended to show [Rewire] in a bad light and to
influence the recall election, which prejudiced [Rewire's] right to
a free and fair election." In considering whether this finding is
clearly erroneous, we must bear in mind that the alleged contempt
involves an exercise of free speech -- a right that warrants the
highest order of constitutional protection [Fn. 76] -- and that
Rewire had the burden of establishing MEA's guilt beyond a
reasonable doubt. [Fn. 77] Given that the article reported
comments that Scott evidently made in an unsolicited interview, the
equivocal nature of Scott's communications, and Rewire's failure to
point to any affirmative evidence of factual inaccuracy, we
conclude that the evidence fails to support the finding of culpable
intent.
Count 2: Photographing picketers
Rewire submitted an affidavit from MEA board member
Rodney Cottle stating that picketers supporting Rewire were
photographed early one morning by Bruce Scott. According to
Cottle, Scott parked an MEA company car across the street from the
picketers, got out and photographed the picketers from two
different street corners, then returned to the car and drove off.
As with Count 1, we conclude that the evidence fails to
support the finding that Scott's purpose for photographing
picketers was to attempt to influence the recall election in
violation of this court's April 28 order.
Count 3: Internet publication of election results
Rewire complained that MEA had published unofficial
annual election results on its internet home page without receiving
prior permission from Rewire or the superior court. The article,
entitled "MEA members set voting, attendance records,"stated that
five proposed bylaw amendments had been approved and a sixth
rejected. The article also reported the unofficial results of an
advisory vote showing that MEA members favored acquiring Chugach
Electric and increasing the number of directors on MEA's board.
The article reported that the votes for new board members would not
be counted until after the recall election was complete.
The superior court found that the internet article
reporting election results was designed to influence the recall
election and was intentionally posted and amended after the
relevant orders in violation of them. The superior court found
that MEA's conduct in publishing the article was wilful and
prejudiced Rewire's right to a free and fair recall election.
Substantial evidence supports the superior court's
findings. This court's April 28 order expressly prohibited MEA,
"including its board, management, and other persons,"from using
MEA resources to "advertise, campaign, or otherwise attempt to
influence, directly or indirectly, the votes of the members"on the
recall issue. Based on this order, the superior court had
previously denied MEA permission to release election results in a
newsletter. Although the web site omitted one objectionable aspect
of the proposed newsletter article -- the results of an advisory
poll showing that seventy percent of the membership at the annual
meeting opposed the recall -- it reported the results of another
unofficial poll, which purported to show that a substantial
majority of MEA's members favored the board's efforts to take over
Chugach Electric. Since a central -- if not the central -- point
of contention in Rewire's dispute with the MEA board was Rewire's
view that the board had acted irresponsibly in attempting to take
over Chugach Electric, the web site report could reasonably be
viewed as an obvious attempt to influence votes in the recall
election.
Considering these circumstances, we affirm the superior
court's judgment of contempt on this count.
Count 4: Open letter from Wayne Carmony
Rewire alleged that MEA attempted to influence the recall
by failing to remove from its internet home page a letter written
by its general manager, Wayne Carmony, which contained a paragraph
labeled "Know Your Opponents." Carmony's letter labeled Rewire a
front group for the IBEW and accused the union of "spending at
least $100,000 slandering your MEA board, complaining it was MEA
wasting money, [and] ignoring public safety by forcing a winter
strike."
Given that this court's April 28 order prohibited MEA's
management from attempting to "directly or indirectly"influence
votes on the recall issue, Carmony's letter can reasonably be seen
as a flagrant violation of our April 28 order. In defense of its
continued posting of this letter, MEA contended that it was not
practical to review each item contained on its home page and that
the April 28 order "did not appear to contemplate MEA's staff
expending hours of time reviewing relatively obscure home page
articles for potentially offensive material." MEA submitted an
affidavit from Bruce Scott claiming that he reviewed the home page
table of contents to cull articles for purposes of complying with
this court's April 28 order but that he simply forgot that
Carmony's letter contained a paragraph critical of Rewire. But the
superior court rejected MEA's explanation, expressly finding that
it lacked credibility:
Given the high tension created by the election
campaign, the associated litigation, and, in particular, the
extraordinary level of interest and intervention shown by the
Supreme Court in this case, the court does not find credible MEA's
attempt to excuse its conduct on the basis of "inadvertence."
In our view, substantial evidence supports the court's finding that
MEA wilfully disobeyed this court's April 28 order by continuing to
publish material critical of Rewire. Giving due deference to the
superior court's judgment on issues of credibility, we affirm its
judgment of contempt on this count.
IV. CONCLUSION
The attorney's fees award is AFFIRMED. The judgments of
contempt on count 3 (for reporting unofficial election results on
the MEA web site) and count 4 (for continuing to publish Wayne
Carmony's letter on the MEA web site) are AFFIRMED. The two
remaining contempt judgments are REVERSED.
FOOTNOTES
Footnote 1:
For convenience, this opinion will refer to Sterling and
Willis collectively as Rewire unless context dictates otherwise.
Footnote 2:
See Taranto v. North Slope Borough, 909 P.2d 354, 355-56
(Alaska 1996).
Footnote 3:
See McNett v. Alyeska Pipeline Serv. Co., 856 P.2d 1165, 1167
(Alaska 1993); Citizens for the Preservation of the Kenai River,
Inc. v. Sheffield, 758 P.2d 624, 626 (Alaska 1988); H.D. De Witt v.
Liberty Leasing Co. of Alaska, Inc., 499 P.2d 599, 601 (Alaska
1972).
Footnote 4:
Cf. Tyler v. Heywood, 607 N.W.2d 186, 189 (Neb. 2000) ("A
trial court's factual finding in a contempt proceeding will be
upheld on appeal unless the finding is clearly erroneous."); Dale
v. Dale, 534 S.E.2d 705, 707 (S.C. App. 2000) ("This court will
reverse a trial judge's decision regarding contempt only if it is
without evidentiary support or is an abuse of discretion."); Czaja
v. Czaja, 537 S.E.2d 908, 917 (W. Va. 2000) ("In reviewing the
findings and facts and conclusions of law of a circuit court
supporting a civil contempt order, we apply a three-pronged
standard of review. We review the contempt order under an abuse of
discretion standard; the underlying factual findings are reviewed
under a clearly erroneous standard; and questions of law and
statutory interpretations are subject to a de novo review.").
Footnote 5:
See H.D. De Witt, 499 P.2d at 601.
Footnote 6:
Specifically, Rewire contends, and MEA does not dispute, that
Rewire succeeded in obtaining much of the relief it requested in
the course of litigation: an order requiring MEA to provide access
to member lists and financial records, an order requiring the bylaw
amendment to be placed on the ballot at the annual meeting, an
order forbidding MEA from spending coop funds to attempt to
influence election results, and an order requiring MEA to validate
the signatures on the recall petition and report the tally.
Footnote 7:
Determining whether Rewire became a prevailing party by virtue
of obtaining these other forms of relief would therefore require
additional consideration by the superior court. Cf. Herrick's
Aero-Auto-Aqua Repair Serv. v. State, Dep't of Transp. & Pub.
Facilities, 754 P.2d 1111 (Alaska 1988) (remanding for
determination of whether defendant was prevailing party in light of
resolution of issues on appeal).
Footnote 8:
Cf. Bruner v. Petersen, 944 P.2d 43, 47 n.4 (Alaska 1997);
LaMoureaux v. Totem Ocean Trailer Express, Inc., 651 P.2d 839, 840
n.1 (Alaska 1982).
Footnote 9:
On its reverse side, Rewire's card-format petition advanced
another accusation based on the board's participation in the
Chugach Electric buyout plan: "In addition, the actions of each of
the directors listed on the reverse, in connection with the Chugach
buyout, violated the MEA Board Policies relating to the appropriate
roles and responsibilities of the Board and the General Manager."
This additional accusation appeared as an introduction in another
form of the Rewire petition; it appeared within the body of yet
another version.
Footnote 10:
593 P.2d 247 (Alaska 1979).
Footnote 11:
Id. at 248-49.
Footnote 12:
Id. at 249-51.
Footnote 13:
Id. at 251.
Footnote 14:
Id.
Footnote 15:
687 P.2d 287 (Alaska 1984).
Footnote 16:
762 P.2d 81 (Alaska 1988).
Footnote 17:
903 P.2d 1055 (Alaska 1995).
Footnote 18:
Meiners, 687 P.2d at 290.
Footnote 19:
Id. at 301.
Footnote 20:
Id. at 302-03.
Footnote 21:
Id. at 301.
Footnote 22:
Id. at 296.
Footnote 23:
McAlpine, 762 P.2d at 82.
Footnote 24:
Id. at 89-91.
Footnote 25:
Id. at 82, 92-96.
Footnote 26:
Von Stauffenberg, 903 P.2d at 1057.
Footnote 27:
Id. at 1058.
Footnote 28:
Id. at 1059.
Footnote 29:
Id. at 1060.
Footnote 30:
Cf. Meiners, 687 P.2d at 291 (describing the process for
recalling regional school board members).
Footnote 31:
493 A.2d 62 (N.J. Super. App. Div. 1985).
Footnote 32:
Id. at 63-64.
Footnote 33:
Id. at 65-66.
Footnote 34:
Id. at 64-65.
Footnote 35:
AS 10.25.140 reads, in pertinent part: "The bylaws shall
provide for the removal of directors from office for cause and for
the election of their successors."
Footnote 36:
See, e.g., von Stauffenberg v. Comm. for an Honest & Ethical
Sch. Bd., 903 P.2d 1055, 1057 (Alaska 1995) (five members named in
one recall petition); Meiners v. Bering Strait Sch. Dist., 687 P.2d
287, 291, 303 (Alaska 1984) (eleven members named in one recall
petition).
Footnote 37:
See text supra at 10.
Footnote 38:
See text supra at 10.
Footnote 39:
486 So. 2d 1283 (Ala. 1986).
Footnote 40:
Id. at 1284.
Footnote 41:
Id. at 1286-87.
Footnote 42:
Id. at 1287.
Footnote 43:
Von Stauffenberg, 903 P.2d at 1060 n.15 (citing City Council
of Gladstone v. Yeaman, 768 S.W.2d 103, 107 (Mo. App. 1988); In re
Recall of Call, 749 P.2d 674, 676 (Wash. 1988); In re Recall of
Redner, 450 N.W.2d 808, 810 (Wisc. App. 1989); 4 Eugene McQuillin,
Municipal Corporations sec. 12.251.35 (3d ed. 1992)).
Footnote 44:
Like the bylaws at issue in Mitchell, 486 So. 2d at 1286, MEA
bylaws provide targeted directors and petitioners an opportunity to
be heard and to "present evidence in respect of the charges."
Footnote 45:
E.g., Meiners v. Bering Strait Sch. Dist., 687 P.2d 287, 298-
302 (Alaska 1984).
Footnote 46:
Alaska Civil Rule 82 provides:
(a) Except as otherwise agreed to by the
parties, the prevailing party in a civil case
shall be awarded attorney's fees calculated under this rule.
(b) . . . .
(2) In cases in which the prevailing
party recovers no money judgment, the court shall award the
prevailing party in a case which goes to trial 30 percent of the
prevailing party's reasonable actual attorney's fees which were
necessarily incurred, and shall award the prevailing party in a
case resolved without trial 20 percent of its actual attorney's
fees which were necessarily incurred. The actual fees shall
include fees for legal work customarily performed by an attorney
but which was delegated to and performed by an investigator,
paralegal or law clerk.
Footnote 47:
Dansereau v. Ulmer, 955 P.2d 916, 918 (Alaska 1998);
Hunsicker v. Thompson, 717 P.2d 358, 359 (Alaska 1986).
Footnote 48:
Eyak Traditional Elders Council v. Sherstone, Inc., 904 P.2d
420, 426 (Alaska 1995) (quoting Citizens Coalition for Tort Reform,
Inc. v. McAlpine, 810 P.2d 162, 171 (Alaska 1991)).
Footnote 49:
Kenai Lumber Co. v. LeResche, 646 P.2d 215, 222-23 (Alaska
1982).
Footnote 50:
MEA agrees that the third factor is met and has elected not to
pursue the question of whether factors one and two were met.
Footnote 51:
Scott said one of Rewire's directors was a retired union
member, two others had previously received contributions from the
union during political campaigns, a fourth director had received
such contributions and was the father of two union members, and a
fifth director had received such contributions and was married to
a retired union member.
Footnote 52:
934 P.2d 759, 764 (Alaska 1997).
Footnote 53:
935 P.2d 816, 828 (Alaska 1997).
Footnote 54:
In its reply brief, MEA also points to literature circulated
by the IBEW in February 1999 expressing the union's desire to
change the MEA board to one more willing to resolve an on-going
strike and stating that a petition committee was gathering
signatures to force a recall. Although MEA submitted the union
materials to the superior court when opposing Rewire's motion for
a preliminary injunction in March 1999, MEA did not mention the
union literature when opposing Rewire's motion for attorney's fees
in November 1999 and instead emphasized that Rewire had admitted
receiving financial support from the union.
Footnote 55:
758 P.2d 624, 626-27 (Alaska 1988).
Footnote 56:
Id.; see also Municipality of Anchorage v. Citizens for
Representative Governance, 880 P.2d 1058, 1061 (Alaska 1994)
("Generally, we analyze the public interest litigant status of the
group by looking to the status of the members.").
Footnote 57:
See Fairbanks Fire Fighter's Ass'n, Local 1324, 934 P.2d at
763-64 (affirming determination that union seeking restored
overtime funding was not public interest litigant when relief
requested was direct payment of substantial funds to union
members); see also In re 1981, 1982, 1983, 1984 and 1985 Delinquent
Property Taxes Owed to the City of Nome, Alaska, 780 P.2d 363, 368
(Alaska 1989) (noting that Nome Eskimo Community owned two taxed
lots and so stood to gain economically from successful litigation
and was not public interest litigant).
Footnote 58:
See Gwich'in Steering Comm. v. State, Office of the Governor,
10 P.3d 572, 585 (Alaska 2000) (tribal-based organization seeking
access to information was public interest litigant even though
members may have been motivated by threats to their subsistence
lifestyle); Spenard Action Comm. v. Lot 3, Block 1, Evergreen
Subdivision, 902 P.2d 766, 782 (Alaska 1995) (non-profit
neighborhood association suing to abate houses of prostitution in
Spenard should have been considered a public interest litigant even
though group members might receive indirect financial benefits if
successful litigation improved property values); Citizens for
Representative Governance, 880 P.2d at 1060, 1062-63
(unincorporated association suing to preclude a school board recall
was public interest litigant because the small stipend received by
school board members belonging to the association was not
sufficient economic incentive to preclude public-interest-litigant
status).
Footnote 59:
10 P.3d 572, 585 (Alaska 2000).
Footnote 60:
MEA sought this information early in the case for other
purposes. But it has previously acknowledged that its early
attempt to discover the identity of Rewire's members and
contributors was premature under Alaska Civil Rule 26 and was
therefore properly denied. By the time the issue of attorney's
fees arose, that discovery effort had long been a dead issue.
MEA's passing mention of new discovery in response to Rewire's
request for attorney's fees did not revive its earlier request for
discovery.
Footnote 61:
596 P.2d 17 (Alaska 1979).
Footnote 62:
759 P.2d 523 (Alaska 1988).
Footnote 63:
868 P.2d 919 (Alaska 1994).
Footnote 64:
596 P.2d at 19.
Footnote 65:
552 P.2d 1122, 1127 (Alaska 1976).
Footnote 66:
Salzwedel, 596 P.2d at 19.
Footnote 67:
Id.
Footnote 68:
OK Lumber Co., 759 P.2d at 528.
Footnote 69:
Id.
Footnote 70:
Id.
Footnote 71:
868 P.2d 919, 932 (Alaska 1994).
Footnote 72:
See Gamble v. Northstore P'ship, 28 P.3d 286, 293 (Alaska
2001); cf. Rosson v. Boyd, 727 P.2d 765, 766 (Alaska 1986).
Footnote 73:
Alaska Statute 09.50.010 states: "The following acts or
omissions with respect to a court of justice or court proceedings
are contempts of the authority of the court . . . (5) disobedience
of a lawful judgment, order, or process of the court."
Footnote 74:
See, e.g., Bowers v. Bowers, 762 A.2d 515, 518 (Conn. App.
2000), reh'g granted, 767 A.2d 1211 (Conn. 2001) ("A finding of
contempt is a question of fact and our standard of review is to
determine whether the court abused its discretion in finding that
the actions or inactions of the party were in contempt of a court
order.") (citations omitted); Tyler v. Heywood, 607 N.W.2d 186, 189
(Neb. 2000) ("A trial court's factual findings in a contempt
proceeding will be upheld on appeal unless the finding is clearly
erroneous."); Dale v. Dale, 534 S.E.2d 705, 706 (S.C. App. 2000)
("This court will reverse a trial judge's decision regarding
contempt only if it is without evidentiary support or is an abuse
of discretion."); Czaja v. Czaja, 537 S.E.2d 908, 917 (W. Va. 2000)
("'In reviewing the findings of fact and conclusions of law of a
circuit court supporting a civil contempt order, we apply a three-
pronged standard of review. We review the contempt order under an
abuse of discretion standard; the underlying factual findings are
reviewed under a clearly erroneous standard; and questions of law
and statutory interpretations are subject to a de novo review.'")
(quoting Carter v. Carter, 470 S.E.2d 193, 195 (W. Va. 1996)); cf.
State v. Birkel, 417 N.E.2d 1249, 1250 (Ohio 1981) ("This court
will not reverse the decision of the court below in a contempt
proceeding in the absence of a showing of an abuse of
discretion."); Schuster v. Schuster, 585 P.2d 130, 133 (Wash. 1978)
("Punishment for contempt of court is within the sound discretion
of the judge so ruling. Unless there is abuse of a trial court's
exercise of discretion, it will not be disturbed on appeal.").
Footnote 75:
See Mathis v. Meyeres, 574 P.2d 447, 449 (Alaska 1978).
Footnote 76:
Cf. Mickens v. City of Kodiak, 640 P.2d 818, 821 (Alaska 1982)
("Laws prohibiting free expression based on the content of the
expression, are sustainable only for the most compelling of
reasons.").
Footnote 77:
See Continental Ins. Cos. v. Bayless & Roberts, Inc., 548 P.2d
398, 407-08 (Alaska 1976) ("When a criminal contempt is involved,
all elements of the offense, including that of wilfulness, must be
proven beyond a reasonable doubt.").
