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Lowell v. Hayes (07/22/2005) sp-5924
Lowell v. Hayes (07/22/2005) sp-5924
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| DON LOWELL,
| ) |
|
| ) Supreme Court No. S-
10967 |
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Appellant, | ) |
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| ) Superior Court
No. |
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v. | ) 4FA-01-2327
CI |
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| ) |
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JAMES C. HAYES, in his personal | ) O P I N I O
N |
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and in his capacity as Mayor of the
| ) |
|
City of Fairbanks, HERBERT P. | ) [No. 5924 -
July 22,
2005] |
|
KUSS, in his personal capacity, and in
| ) |
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his official capacity as the City
| ) |
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Attorney for the City of Fairbanks,
| ) |
|
Alaska, and the CITY OF | ) |
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FAIRBANKS, an Alaskan Municipal | ) |
|
Corporation,
| ) |
|
| ) |
|
Appellees. | )
|
|
| ) |
|
|
|
|
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Mary E. Greene, Judge.
Appearances: Michael J. Walleri, Law Offices
of Michael J. Walleri, Fairbanks, for
Appellant. Aimee A. Oravec, Winfree Law
Office, APC, Fairbanks, for Appellees.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
Don Lowell sued the City of Fairbanks (the city), James
Hayes, and Herbert Kuss for defamation and violation of his civil
rights. He sought actual and punitive damages, as well as
declaratory relief. The superior court dismissed his civil
rights claim and his request for declaratory judgment and granted
summary judgment to defendants on the defamation claim. The
court then awarded defendants enhanced attorneys fees under Rules
68 and 37. We affirm all of the superior courts rulings.
II. FACTS AND PROCEEDINGS
A. Facts
Former Fairbanks-North Star Borough assemblyman Don
Lowell took part in a petition effort to consolidate the City of
Fairbanks and Fairbanks-North Star Borough governments. In his
capacity as a member of the consolidation committee formed to
further the consolidation plan, Lowell appeared before the
borough assembly and city council, and was featured in local news
coverage.
The Alaska Administrative Code, 3 AAC 110.900, requires
consultation between petition sponsors and officials of the
affected governmental entities:
(a) A petition for incorporation, annexation,
merger, or consolidation must include a
practical plan that demonstrates the capacity
of the municipal government to extend
essential city or essential borough services
into the territory proposed for change in the
shortest practicable time after the effective
date of the proposed change. . . .
(b) Each petition must include a practical
plan for the assumption of all relevant and
appropriate powers, duties, rights, and
functions presently exercised by an existing
borough, city, unorganized borough service
area, and other appropriate entity located in
the territory proposed for change. The plan
must be prepared in consultation with the
officials of each existing borough, city and
unorganized borough service area. . . .
c) Each petition must include a practical
plan for the transfer and integration of all
relevant and appropriate assets and
liabilities of an existing borough, city,
unorganized borough service area, and other
entity located in the territory proposed for
change. The plan must be prepared in
consultation with the officials of each
existing borough, city, and unorganized
borough service area . . . .
(Emphasis added.)
As Lowell notes, nothing in the code defines
consultation, nor does it specify with which officials a
consolidation planner must consult. According to Lowell,
consolidation petitions are generally submitted to the State of
Alaska Local Boundary Commission (LBC) with affidavits attesting
to the fact that the plan was developed after consultation with
municipal officials of all the affected municipal governments.
In May 1998 Lowell and Juanita Helms, another member of
the consolidation committee, discussed consolidation with Hayes,
the mayor of Fairbanks. Lowell and Helms asked for permission to
discuss consolidation-related issues with the citys staff and
department heads, including Kuss, the city attorney. Hayes
agreed to this request, and wrote a memorandum to the citys
department heads, directing them to cooperate with the
consolidation committee. He also notified Kuss in person.
Lowell did not meet with the city department heads, or
at least the ones notified by Hayes. According to Lowell, he
instead met with certain lower-level city officials and staff to
discuss consolidation, and obtained several documents from the
City Clerks office. Helms also met with various city officials,
although she did so only in the context of a mayoral campaign and
service as director of a volunteer police organization, and not
specifically for the purpose of planning consolidation.
In October 1998 Lowell filed a draft consolidation
petition with the LBC. Lowell had given a copy of this draft
petition to Hayes in August of that year with a cover letter
requesting informal review and constructive criticism. Hayes did
not recall receiving the draft petition, but it apparently
included unsigned copies of Lowells affidavit and other signed
submissions to the LBC, to the effect that city and borough
officials were consulted during development of the transition
plan petition.
At a November 1998 city council meeting, concerns were
raised that consolidation committee members had not met with city
department heads or council members. Council members asked Kuss
to contact the LBC to try to ensure that, before a final petition
was approved, Lowell would indeed consult with the City as
required. The following month, Kuss informed Dan Bockhorst, a
staff member to the LBC, of the Citys concern that, based on the
language of Mr. Lowells proposed affidavit and petition
paperwork, the LBC might be misled as to the extent of the Citys
involvement in or agreement with the substance of the proposed
petition. After Kuss explained to Bockhorst that Lowell had
formulated the transition plan without input or critique from
City officials and department heads, Kuss asked Bockhorst whether
criminal perjury charges could apply. Although Kuss insists that
he never actually threatened Lowell with prosecution, Bockhorst
did inform Lowell of the substance of this discussion.
Lowell appeared at a September 1999 city council
meeting, and read a statement into the record. He noted the
complaints that the Consolidation Committee did not meet with the
Council and all city department heads in developing the
transition portion of the plan. Lowell admitted that this was
because we found that was not necessary, and explained that we
obtained most of the petition-related data including information
in the transition plan from public documents and from some city
and borough staff. He also noted that he had submitted a draft
petition for constructive criticism, and that the borough, but
not the city, had responded with comments. Lowell insisted that
members of the consolidation committee would still be willing to
meet with the council to resolve any concerns they may have.
Lowell submitted his final version of the consolidation
petition to Hayes on May 18, 2000. According to Hayes, Lowell
refused to answer questions about certain elements of the
proposed consolidation, did not deny that he had failed to
consult with the City in formulating the transition plan, and
indicated that working with the City was unimportant, because the
LBC would refer his petition regardless of his lack of
consultation. Lowell allegedly implied that he had an inside
line with the LBC and that he was not required to consult with
the City because the LBC would do whatever [Lowell] wanted with
respect to the consolidation issue.
The city filed with the LBC in July 2000 a brief
opposing consolidation, and an affidavit from Hayes alleging
that Lowell had failed to consult with city officials. Lowell
submitted a response brief in which he explained that he had
planned to meet with City department heads and with the City
Council on the transition plan, but instead found most of the
required information from public records and discussed the
transition plan with some city personnel by phone or visit where
questions arose. Lowells response also stated that he had
provided Mayor Hayes with a draft copy of the full petition
requesting City review for correction and constructive criticism.
Lowell furnished a copy of the relevant parts of this brief to
Hayes.
The LBC apparently determined that Lowells petition was
adequate for submission to the city and borough voters for a
special election on the consolidation issue. The election was
held on August 28, 2001, and the voters rejected the proposal.
The following day, Hayes sent a letter to the Chair of the LBC.
Hayes mentioned that Lowell falsely claimed, by affidavit, that
the petition plan was developed in consultation with officials of
municipal governments yet personally admitted to me that his
claim was untrue. Hayes suggested that [a] number of
improvements should be made to prevent a reoccurrence of this
type of flawed petition process, including the adoption and
enforcement of [r]egulations that provide sanctions for behavior
like Lowells. Copies of this letter were apparently forwarded to
the city council, local legislators, and a local newspaper.
Soon after, Lowells attorney wrote to Hayes. His
letter noted that by accusing Lowell of filing a perjured
affidavit, Hayes had engaged in libel per se. The letter also
accused a city attorney of threatening criminal action against
Lowell in violation of his civil rights. The letter warned that
a lawsuit was imminent if Hayes failed to apologize and correct
his misquotes of Lowells affidavits. In the weeks that followed,
Hayes and Kuss wrote several letters to Lowells attorney, re-
alleging their assertions that Lowell had falsely claimed to have
consulted with city officials. These letters were circulated to
and excerpted in the local press.
B. Proceedings
Lowell filed suit against the defendants on October 8,
2001 seeking actual and punitive damages for defamation and
violation of his civil right to petition the government. An
amended complaint filed on December 3, 2001 added a request for a
declaratory judgment that the defendants violated Lowells civil
rights. On March 15, 2002 the superior court granted the
defendants Civil Rule 12(b)(6) motion to dismiss Lowells claim
for violation of his civil rights. Lowell filed a second amended
complaint on May 28, 2002, in which he requested a declaratory
judgment that the defendants had falsely accused him of perjury.
As part of the pre-trial discovery process, the
defendants submitted to Lowell a request for an admission that he
was a public figure with respect to the consolidation issue.
Lowells only response was Deny. The defendants then moved for
summary judgment on the issue of whether Lowell was a public
figure. The superior court rejected Lowells arguments against
the motion,1 held that as a matter of law Lowell is a public
figure for purposes of this controversy, and granted the
defendants motion on August 1, 2002.2 The court then imposed on
Lowell the expenses incurred by the defendants in litigating the
motion, pursuant to the defendants Civil Rule 37 motion.
On November 14, 2002 the superior court granted the
defendants Rule 12(b)(6) motion to dismiss as non-justiciable
Lowells requests for declaratory relief.
On December 3, 2002 the court granted the defendants
motion for summary judgment on Lowells defamation claim in its
entirety, finding that as a matter of law the defendants did not
publish their statements with actual malice. Shortly thereafter,
the superior court dismissed with prejudice all claims brought or
which could have been brought by Lowell against the defendants.
The defendants had served Lowell with a Civil Rule 68
Offer of Judgment several months after he filed his claim. The
defendants had proposed, without admitting any fault or liability
of any kind, that a $1.00 judgment be entered against each
individual defendant for Lowells defamation claim, and that a
$1.00 judgment be entered against the defendants collectively for
Lowells civil rights claim. That is, the defendants offered
Lowell a total of four dollars to settle the lawsuit. Lowell
rejected the offer, and instead offered to settle the whole case
for $0 and a written apology signed by Hayes and Kuss. The
defendants rejected this offer. Following the superior courts
entry of final judgment in their favor, the defendants moved for
and were awarded attorneys fees and costs in excess of $40,000.
Lowell has appealed each of these decisions.
III. STANDARD OF REVIEW
In reviewing a grant of summary judgment, we examine
whether a genuine issue of material fact existed to preclude
judgment as a matter of law, drawing all reasonable factual
inferences in favor of the non-moving party.3 In an action for
defamation brought by a public figure, we will reverse a grant of
summary judgment for the defendant if there is any genuine
factual question that the defendant entertained serious doubts as
to the truth of his statements.4
We review dismissals pursuant to Civil Rule 12(b)(6) de
novo, construing the dismissed complaint liberally, and assuming
the truth of all facts it alleges.5 Rule 12(b)(6) dismissals are
viewed with disfavor and should only be granted on the rare
occasion where it appears beyond doubt that the plaintiff can
prove no set of facts in support of the claims that would entitle
the plaintiff to relief.6
In light of the significant role of judicial discretion
in the administration of declaratory judgment, we will reverse
the dismissal of a declaratory judgment action that is based on
prudential grounds only when we find that the superior court
abused its discretion.7
We review de novo those exceptions to Rule 37(c)(2)
sanctions that raise legal questions.8 We review for clear error
those exceptions to Rule 37(c)(2) sanctions that rely on factual
findings.9
Whether Rule 68 is applicable to a given case is a
question of law.10 Where Rule 68 applies, we review the lower
courts determination of the prevailing party11 and the amount
awarded12 for abuse of discretion.
IV. DISCUSSION
A. The Superior Court Properly Granted Summary Judgment on
Lowells Defamation Claim.
Under the First Amendment of the U.S. Constitution, a
public figure can win damages for defamation only where he can
prove that the defendant published the defamatory statement at
issue with actual malice.13 Prior to granting the defendants
motion for summary judgment, the superior court had determined as
a matter of law that Lowell was a public figure for purposes of
the events surrounding his consolidation petition, and therefore
this lawsuit. Lowell does not challenge this conclusion on
appeal. The issue on appeal is thus whether, as the superior
court concluded, Lowell failed to raise a genuine issue of fact
regarding the defendants actual malice that could have precluded
judgment.
Actual malice involves a subjective inquiry into a
speakers intent specifically, whether he knew that his
defamatory statement was false or recklessly disregarded the
possibility of its falsity.14 A plaintiff must prove by clear and
convincing evidence that the declarant acted with knowledge of
the statements falsity or in reckless disregard of the statements
truth or falsity.15 To show that a declarant recklessly
disregarded the truth or falsity of published material, a
plaintiff must show that the declarant entertained serious
doubts as to the truth of the publication. 16 A defendants
[f]ailure to make a prior investigation into the accuracy of
published statements does not, by itself, constitute actual
malice.17 Neither does a defendants incorrect usage of a key term
or word whose meaning is reasonably disputed.18 Thus, [t]he
actual malice standard is a difficult one to satisfy.19
Nevertheless, we have refused to adopt the federal
standard for summary judgment on defamation claims, under which
summary judgment is granted unless the plaintiff has shown actual
malice by clear and convincing evidence.20 Concluding that the
federal standard intrudes into the province of the jury, 21 we
have decline[d] to incorporate the applicable substantive
evidentiary standard into this states summary
judgment practice.22 Thus, it is somewhat harder for a libel
defendant to win summary judgment in our state courts than in
federal courts.23
A finding that a defendant lacked actual malice may or
may not be based on his own testimony; a defendant cannot
automatically insure a favorable verdict by
testifying that he published with a belief that the statements
were true.24 But we have held that such testimony will suffice to
counter a claim of actual malice where (1) the plaintiff has
failed to present conflicting evidence, and (2) the circumstances
do not indicate that the statement was fabricated by the
defendant, . . . the product of his imagination, . . . based
wholly on an unverified anonymous telephone call . . . [or] so
inherently improbable that only a reckless man would have put
[it] in circulation. 25
In this case, as the superior court noted, [t]he
ultimate dispute between the parties revolves around the
definition of the word consultation. But because the test for
actual malice is eminently subjective, the court correctly stated
that it does not matter what a court might determine the legal
definition of consultation in 3 AAC 110.900 to be, so long as the
defendants concept of the term fell within a standard dictionary
definition. The defendants presented affidavits and other
testimonial evidence that they actually believed that Lowell had
failed to consult with city officials as required by law, at
least as far as the defendants understood this requirement.
Lowell indicated to Hayes that he intended to meet
personally with Hayes, Kuss, and various city department heads to
discuss his consolidation petition. Lowell does not dispute this
fact. Hayes testified that his understanding was that they were
actually going to sit down, discuss it, work it, find out. Hayes
later discovered that Lowell had in fact not met with any of the
city department heads or chief officials, a fact that Lowell also
did not dispute.26 The superior court thus correctly held that
the defendants evidence amounted to a prima facie showing that
their statements were not fabricated, based on wholly
unverifiable and suspect sources, or inherently improbable.
Lowell was therefore required to present conflicting evidence in
rebuttal.
In opposing the defendants motion for summary judgment,
Lowell argued that after he filed his petition, but before the
defendants published their defamatory statements, the Mayor had
actual knowledge that consultation had taken place. Lowell
presented evidence that he and Juanita Helms consulted in some
way with city officials, but the superior court held that Lowells
evidence did not suffice to show that the defendants actually
knew, or should have known, of his relatively low-level, vague,
and indirect contacts with the city bureaucracy. Lowell had also
submitted a draft of his consolidation petition to Hayes and the
city for comments. But the superior court felt that while the
defendants were certainly aware that Lowell had submitted this
draft, Lowell offered no evidence that the defendants
subjectively felt that submitting a draft constituted consulting,
particularly in light of Hayess testimony that he had a policy of
not making official comments on the petition until it was finally
filed. The superior court thus concluded that Lowell presented
no evidence that the defendants statements were made in bad faith
or with serious doubt as to the truth of their content. We
agree.
Lowell argues that he offered evidence that, during LBC
hearings on his petition, the city put forward allegations that
the petition contained false statements similar to the
allegations at issue in this case. Lowells response brief to the
LBC explained, along essentially the same lines as his briefings
in this lawsuit, that he had met with lower city officials and
submitted a draft petition to Hayes. As Lowell reminded the
superior court, the LBC subsequently found that the Petition for
Consolidation was sufficient and ordered an election. Thus,
Lowell reasons, the LBC implicitly determined that he had
adequately consulted with city officials. And since Hayes
received a copy of the relevant parts of the response, and the
defendants were obviously aware of the LBCs decision, Lowell
argues that they must have known that Lowell had in fact
fulfilled the consultation requirement, or at least one
reasonable interpretation of it.
Notably, however, Lowells response brief to the LBC
never affirmatively used the term consult, and never explicitly
stated that Lowells low-level meetings, research, and submission
of draft proposals constituted consultation. Similarly, even
Lowell admits that his subsequent affidavit to the LBC did not
use the word consultation or any derivation thereof. And though
the LBC submitted Lowells petition to the voters, it did not
define consultation, or expressly rule on whether Lowell had
actually and adequately consulted. The defendants also presented
evidence that they believed that Lowell had an inside line or a
well-placed friend at the LBC, and that the LBC would approve
[Lowells] consolidation proposal regardless of the fact that he
did not comply with the regulations regarding consultation with
City staff. The defendants thus had reasonable grounds for
thinking that Lowell did not regard his actions to be a form of
consultation but instead intended to use them to avoid the
consultation requirement. In sum, the content of Lowells
response brief to the LBC and the LBCs decision to approve the
consolidation petition do not constitute evidence rebutting the
defendants testimony that their statements were not fabricated or
inherently improbable. Accordingly, we affirm the superior
courts decision to grant the defendants motion for summary
judgment on Lowells defamation claim.
B. The Superior Court Properly Dismissed Lowells State
Constitutional Claims.
Article I, Section 6 of the Alaska Constitution
provides: The right of the people peaceably to assemble, and to
petition the government shall never be abridged. Lowell claims,
as he did before the superior court, that the defendants
attempt[ed] to inhibit and otherwise limit the free exercise of
[his] right to petition the government in a manner prescribed by
law. According to Lowell, by gratuitously attack[ing his]
character and threatening him with prosecution, the defendants
intended to warn other like-minded citizens of the dangers of
petitioning the government. Lowell insists that he should have
received monetary and declarative relief on this ground. The
superior court dismissed this cause of action.
Federal courts allow direct tort actions for violation
of certain provisions of the federal constitution, but only
reluctantly, where no alternative remedies are available.27 We
have never recognized a Bivens-type private right of action for
constitutional torts under the Alaska Constitution.28 We have
stated that we will not allow a constitutional claim for damages,
except in cases of flagrant constitutional violations where
little or no alternative remedies are available.29 This case
meets neither requirement.
As the superior court noted, Lowell does not allege
that he was actually prevented from petitioning the government.
Lowell was quite clearly afforded the right of petition; as even
he admits, he did in fact submit a petition, and his petition was
offered to the voters. Lowell does not allege any direct action
on the part of the defendants to thwart his constitutional right.
In fact, the defendants actions only occurred after Lowell
submitted his petition. Lowell alleges only that the defendants
intended to discourage future petitioners like himself. Even
assuming that all of Lowells assertions are true, the
constitutional violation he alleges, if there is one at all, is
certainly not flagrant. It amounts, at most, to an indirect or
tacit threat to violate others constitutional rights at an
undetermined and uncertain point in the future.30
Moreover, the availability of alternative remedies for
the defendants actions is evident, as the superior court noted.
Lowell sued the defendants for defamation. Lowell argues that
the trial court failed to consider the threats and intimidation
of criminal prosecution by Kuss and Hayes, and rather focused
only on the elements of the complaint that mirrored Lowells
defamation claims. To the extent that they were not intended
merely to dissuade future petitioners (as discussed in the
preceding paragraph), the defendants threats never blossomed into
an actual prosecution of Lowell.31 They were at most, as Lowell
suggests, part of the overall campaign by the defendants to
discredit him. They were thus more properly considered a form of
defamatory conduct, for which the appropriate remedy was Lowells
non-constitutional cause of action.
Lowell further argues that even if his claim for
defamation was an adequate alternative remedy to a constitutional
cause of action, it was dismissed. Assuming this was proper,
Lowell protests that he no longer has an alternative remedy
available. This argument is facially untenable, and Lowell cites
no authority to support it. Surely the inadequacy of alternative
remedies for alleged constitutional violations cannot be measured
per se by the dismissal or defeat of those remedies. If that
were so, the perverse result would be that the more frivolous or
unjustifiable a claim, the more it would merit an implied
constitutional cause of action for damages. As we have not
adopted Bivens and its progeny,32 we have clearly not expressed
any support for the broad proposition advanced by Lowell. At the
time the superior court dismissed Lowells constitutional cause of
action, his defamation cause of action was still pending. Lowell
had properly availed himself of this alternative remedy, and the
superior court properly dismissed his implied constitutional tort
cause of action.
C. The Superior Court Properly Dismissed Lowells Request for
Declaratory Relief on His Defamation Claim.
A. The superior court dismissed Lowells requests for
declaratory relief, holding them to be non-justiciable because
the grant of declaratory relief would not be a final and
conclusive judgment and/or would not serve a useful purpose in
light of the courts earlier dismissal of Lowells state civil
rights claim. Lowell appeals this decision. He argues that the
superior court improperly dismissed his request for declaratory
relief as to his defamation claim, because the U.S. Supreme Court
has never applied its actual malice standard to defamation claims
brought by public figures for relief other than damages; because
a declaratory judgment for Lowell would counter the aspersions
respecting his character and reputation, which money damages may
be limited to ameliorate; because application of the actual
malice standard to Lowells defamation claims may render illusory
his other avenues of relief, making declaratory relief a
necessary substitute; and because despite the constitutional
value in free speech, there should be no constitutional
protection for public officials false statements of fact.
1. Dismissal of Lowells requested declaratory relief
was within the superior courts discretion.
Alaska Statute 22.10.020(g) (the Declaratory Judgment
Act) grants to superior courts the power to issue declaratory
judgments in cases of actual controversy.33 It states in relevant
part: In case of an actual controversy in the state, the superior
court, upon the filing of an appropriate pleading, may declare
the rights and legal relations of an interested party seeking the
declaration, whether or not further relief is or could be sought.
And Alaska Rule of Civil Procedure 57 states that [t]he procedure
for obtaining a declaratory judgment pursuant to statute shall be
in accordance with [the civil] rules. . . . The existence of
another adequate remedy does not preclude a judgment for
declaratory relief in cases where it is appropriate.34
A complaint asking for declaratory relief must allege
one or more facts demonstrating that the plaintiff is entitled to
a declaratory judgment.35 We have explained that declaratory
judgments are rendered to clarify and settle legal relations, and
to terminate and afford relief from the uncertainty, insecurity,
and controversy giving rise to the proceeding.36 A court should
decline to render declaratory relief when neither of these
results can be accomplished.37
We have noted that Civil Rule 57 is practically
identical to its federal counterpart, and that the formulation of
Alaskas declaratory judgment provision makes it apparent that our
legislature intended to parallel the text of the federal
Declaratory Judgment Act.38 Because the Alaska and federal
declaratory judgment acts and procedural provisions are
substantially similar, we consider federal precedent pertinent in
our determination of declaratory judgment issues.39
The language of AS 22.10.020(g) suggests that
declaratory relief may be allowed in any actual controversy.40
But commentary suggests that declaratory relief is a tool for
resolving controversies that [have] not reached the stage at
which either party may seek a coercive remedy or in cases in
which a party who could sue for coercive relief has not yet done
so.41 That is, declaratory relief is generally used to settle a
controversy that has yet to ripen into violations of law,42 or to
afford one threatened with liability an early adjudication
without waiting until an adversary should see fit to begin an
action after the damage has accrued.43
In Wilton v. Seven Falls Co.,44 the United States
Supreme Court declared that the Federal Declaratory Judgment Act
invests federal courts with unique and substantial discretion in
deciding whether to declare the rights of litigants.45 Federal
Courts may declare the rights and other legal relations of any
interested party seeking such declaration. 46 The Alaska
Declaratory Judgment Act employs language identical to the
Federal Act and we have similarly interpreted the Alaska
Declaratory Judgment Act such that Alaskan superior courts may
declare the rights and legal relations of an interested party
seeking the declaration.47 Declaratory relief is a nonobligatory
remedy and the Federal Declaratory Judgment Act created an
opportunity, rather than a duty for federal courts to grant
relief to qualifying litigants.48 In the declaratory judgment
context, the Court noted, the normal principle that federal
courts should adjudicate claims within their jurisdiction yields
to considerations of practicality and wise judicial
administration.49 A court that know[s] at the commencement of
litigation that it will exercise its broad statutory discretion
to decline declaratory relief, need not undertake a wasteful
expenditure of judicial resources in the futile exercise of
hearing a case on the merits first.50
As occurred in Wilton, federal courts often refuse to
hear declaratory judgment claims because parallel proceedings,
particularly those in other jurisdictions, present the same
issues.51 Similarly, where the same proceeding offers a plaintiff
alternative remedies, though the existence of other remedies does
not preclude declaratory judgment per se, the court in its
discretion properly may refuse declaratory relief if the
alternative remedy is better or more effective.52
As explained above, a trial court has wide discretion
to determine that a request for declaratory relief is
inappropriate. Lowells defamation claim arose out of statements
that the defendants had already made, not that they were likely
to make or threatened to make. Thus, by the time Lowell brought
suit, the dispute at issue had already ripened into an alleged
actual violation of law. The superior court therefore did not
abuse its discretion in determining that the coercive remedies
available to Lowell would be more effective, or final and
conclusive.
2. The actual malice standard applies to defamation
claims for declaratory relief.
We can quickly dispose of Lowells argument that because
the actual malice standard does not apply to requests for
declaratory remedies, declaratory relief would in fact be a more
effective remedy, or his only remedy if we affirm summary
judgment. It is true, as Lowell suggests, that in both New York
Times Co. v. Sullivan53 and Gertz v. Robert Welch, Inc.54 the
Supreme Court required actual malice in claims for coercive
relief but did not address declaratory relief. However, an
action for declaratory relief is procedural and remedial, not
substantive.55 Declaratory judgments vindicate substantive rights
they do not create them.56 To the extent that the law offers a
public figure no substantive right to seek coercive remedies for
non-malicious defamation, it also offers him no right to seek
declaratory relief for that defamation.57
There is also a strong public policy ground for
rejecting Lowells argument. In New York Times, the Supreme Court
emphasized the profound national commitment to the principle that
debate on public issues should be uninhibited, robust, and
wide-open.58 Such debate would be intolerably curtailed by the
self-censorship that inevitably arises under the common law rules
of defamation (particularly the rule that defendants bear the
burden of proving the truth of their statements), because
erroneous statement is inevitable in free debate.59 The vital
logic underpinning New York Times, Gertz, and many other First
Amendment cases is that erroneous but non-malicious speech on
public issues must be protected if the freedoms of expression are
to have the breathing space that they need to survive.60
The reasoning of New York Times should apply even to
claims that seek only declaratory relief. While not presenting
the threat of monetary damages, they nonetheless impose the same
litigation costs and burdens on a defendant, as well as the same
threat of reputational harm. Allowing actions for declaratory
judgments to proceed without the requirement of actual malice is
likely to intolerably chill free speech and public debate. The
actual malice standard should therefore apply to any form of
defamation claim brought by a public figure. In sum, where false
statements of fact regarding a public figure are made without
malicious intent, they are constitutionally protected and should
not be considered grounds for any form of relief, declaratory or
otherwise.
3. Declaratory relief was not an appropriate remedy
for any alleged criminal prosecution threats
against Lowell.
Lowell also argues that dismissal of his plea for
declaratory judgment regarding his defamation claim was improper
because a declaratory judgment would clarify and settle the issue
of whether the defendants are permitted to threaten Lowell with
prosecution for his alleged perjury. To the extent that this
argument is distinct from Lowells appeal of the dismissal of his
state constitutional claims, discussed above in Part IV.B, we
reject it.
Because Alaskas Declaratory Judgment Act and its
federal counterpart require an actual controversy as a
prerequisite to granting declaratory relief, we have held that a
trial court has discretion to deny such relief where it
determines that a plaintiff lacks standing to sue, or the claim
lacks ripeness.61 Based on considerations of standing or
ripeness, federal courts are generally disinclined to provide
declaratory relief to foreclose a threat of prosecution unless it
is reasonably clear and specific.62 The First Circuit has noted
that just how clear the threat of prosecution needs to be turns
very much on the facts of the case and on a sliding-scale
judgment that is very hard to calibrate.63 The court noted a
trend toward the practical approach of requiring realistic
inferences that show a likelihood of prosecution.64
Lowells assertion that he was, and still is, faced with
criminal prosecution is apparently based entirely on the
allegations in his own complaint. According to Lowell, Mr. Kuss
. . . threatened to bring criminal charges against Mr. Lowell in
a conversation with Mr. Bockhorst, a staffer with the Local
Boundary Commission. Mr. Hayes repeated that threat in his
letter to Kevin Warring, by urging that sanctions should be
applied to Mr. Lowell. But Lowell offers no citations to the
record to support this claim, and the record offers ample
evidence refuting it. Prior to the onset of litigation, Kuss
wrote a letter to Lowells attorney, insisting that Lowell had
mischaracterized his legal discussions with Bockhorst. An
affidavit submitted by Kuss states: At no time during my
conversation with Mr. Bockhorst did I threaten to bring a
criminal prosecution against Mr. Lowell because of the statements
in his proposed October 1998 petition and affidavit. An
affidavit submitted by Hayes states that the first time he heard
of any threats to criminally prosecute Lowell was when Lowell
himself mentioned them in a meeting. The superior court thus
acted, to be sure, well within its discretion in finding any
alleged criminal prosecution threats against Lowell
insufficiently clear and specific to support a claim for
declaratory relief.
D. The Superior Court Properly Imposed the Defendants Attorneys
Fees and Sanctions Under Civil Rule 37(c) for Lowells Failure To
Admit His Public Figure Status.
Lowell claims that the superior courts decision to
award attorneys fees to the defendants under Rule 37(c) was
improper.
Civil Rule 37 states in relevant part:
If a party fails to admit . . . the truth of any
matter as requested under Rule 36, and if the
party requesting the admissions thereafter proves
. . . the truth of the matter, the requesting
party may apply to the court for an order
requiring the other party to pay the reasonable
expenses incurred in making that proof, including
reasonable attorneys fees. The court shall make
the order unless it finds that (A) the request was
held objectionable pursuant to Rule 36(a), or (B)
the admission sought was of no substantial
importance, or (C) the party failing to admit had
reasonable ground to believe that the party might
prevail on the matter, or (D) there was other good
reason for the failure to admit.[65]
Thus, where a party fails to admit the truth of a
matter, and the opposing party requests Rule 37(c)(2) sanctions,
they are mandatory if none of the four listed exceptions applies.66
Since the superior court found that Lowell had failed to admit
the truth that he was a public figure, the court had no choice
but to sanction Lowell, unless a Rule 37(c)(2) exception applied.
Lowells briefings suggest, though without explicitly stating, an
argument under exception (A).67
In order to avoid Rule 37(c)(2)s sanctions under
Exception (A) of the rule, the superior court must find that the
requested admission was held objectionable pursuant to Rule
36(a). According to Lowell, the defendants request concerned a
question of law and fact, and requests for admissions of law and
fact are impermissible under Alaskas discovery rules.68
Therefore, he reasons, the requested admission was objectionable,69
and Rule 37(c)(2) penalties were inappropriate. But it is pure
questions of law, not mixed questions of law and fact, that are
generally considered improper matters for discovery.70 Where, as
here, the relevant facts are undisputed, [t]he nearly universal
rule is that determination of public figure status is a question
of law for the court to determine.71 Thus, Lowells argument has
some legal merit, although it misstates several aspects of the
relevant law, because the defendants request that Lowell admit
that he was a public figure was objectionable.
But Lowells argument ignores the clear implications of
Rule 37s wording. Rule 37(c)(2) does not except from sanctions
parties who unilaterally determine that a request for admission
is objectionable; it excepts a request actually held to be
objectionable. A request for admission can be held objectionable
only by a court of law. At no point was the defendants request
that Lowell admit to being a public figure held objectionable by
the superior court. Exception (A) to Rule 37(c)(2) is thus
inapplicable.
On a more general level, Lowell waived his opportunity
to object to the defendants request for admission. Rule 36(a)
states that a request for admission is considered admitted by the
party upon which it is served, unless that party serves upon the
party requesting the admission a written answer or objection
addressed to the matter. . . . If objection is made, the reasons
therefor shall be stated. Nowhere does the record indicate that
Lowell objected to, or stated any reasons for objecting to, the
defendants request at the time he answered it. Lowell simply
responded Deny. This response implied that Lowell did not object
to the legal validity of the defendants request for admission,
and intended to litigate his public figure status on the
substantive merits. And Lowell then proceeded to litigate only
the substantive issue of his status. In his Partial Opposition
to the defendants motion for summary judgment on the public
figure issue, Lowell contested his public figure status for
purposes of this case, but failed to object to the form or nature
of the requested admission itself. It was only after the
superior court rejected this argument and considered sanctioning
Lowell that Lowell changed tack and argued that the requested
admission had been improper from the beginning.
Alaskas Rules of Civil Procedure are construed to
further the speedy and inexpensive determination of every action
and proceeding.72 In this spirit, Rule 36 is intended to expedite
litigation through the elimination of uncontested issues,73 and
Rule 37 is obviously meant to encourage compliance with Rule 36.
Since Lowell clearly failed to abide by the procedural
requirements of Rule 36(a), he cannot avoid Rule 37(c)(2)
sanctions, even if he later discovered a legal basis for doing
so.
E. The Trial Court Properly Awarded the Defendants
Enhanced Attorneys Fees.
Lowell challenges the superior courts decision to award
the defendants Rule 68 attorneys fees.74 Rule 68, as applicable
to cases filed after August 7, 1997, states in relevant part:
(a) [Either party] may serve upon the adverse
party an offer to allow judgment to be
entered in complete satisfaction of the claim
for the money or property or to the effect
specified in the offer . . . .
(b) If the judgment finally rendered by the
court is at least 5 percent less favorable to
the offeree than the offer, or, if there are
multiple defendants, at least 10 percent less
favorable to the offeree than the offer, the
offeree . . . shall pay all costs as allowed
under the Civil Rules and shall pay
reasonable actual attorney fees incurred by
the offeror from the date the offer was made
as follows:
(1) if the offer was served no later
than 60 days after both parties made the
disclosures required by Civil Rule 26, the
offeree shall pay 75 percent of the offerors
reasonable actual attorney fees
. . . .
(c) If an offeror receives costs and
reasonable actual attorney fees under
paragraph (b), that offeror shall be
considered the prevailing party for purposes
of an award of attorney fees under Civil Rule
82.
1. The defendants settlement offer was valid.
Lowell argues that because the defendants Rule 68
settlement offer contained an express reservation that it was
made without admitting any fault or liability of any kind, it
did not meet Rule 68s very specific requirement that the offeror
have judgment entered in complete satisfaction of the claim.
But, Lowell offers no support for his interpretation of Rule 68,
and the general rule is that a Rule 68 settlement offer may
include language that the offer is not an admission of liability.75
Thus, we hold that the defendants offer was valid for Rule 68
purposes.76
2. The superior court did not abuse its discretion in
awarding Rule 68 fees to the defendants.
Lowell offers two arguments as to why the superior
court abused its discretion. First, he argues that the
defendants judgment of zero dollars and no apology was clearly
not more favorable than Lowells settlement offer of zero dollars
and an apology. Second, Lowell suggests that defendants were not
entitled to Rule 68 fees because his offer to settle the case for
zero dollars and an apology bettered the defendants four-dollar
settlement offer. We reject both of these arguments.
In regard to Lowells first argument, we note that the
final judgment was more favorable to the defendants than Lowells
offer because they did not have to apologize. Lowell admits that
it is rather obvious that he was primarily interested in an
apology. For him then to argue that the defendants did not do
better at trial because the apology is valueless, or that it
might even have negative value as he suggests, is illogical. We
need not decide whether an apology is worth ten percent of the
judgment. It is enough to observe that Lowells primary goal was
an apology and that the defendants secured a judgment better than
his offer by not having to give one.77
As to Lowells second argument that his offer bettered
the defendants offer it is irrelevant. Rule 68 requires the
court to compare each individual offer to the final judgment, not
that it weigh parties offers against each other. The purpose of
Civil Rule 68 is to encourage settlement in civil cases and to
avoid protracted litigation.78 The rule encourages settlement by
creating an incentive for parties to accept offers that approach
their own estimation of what they might secure at trial.79
Because Rule 68 requires only that the court compare the offer of
judgment against the judgment itself, Lowells second argument is
irrelevant.
Because the final judgment was in fact more favorable
to the defendants than Lowells offer, we conclude the court acted
within its discretion. Similarly, the superior court did not
abuse its discretion in determining that its final judgment was
more than ten percent less favorable to Lowell than the
defendants pre-trial offer to settle the case for four dollars
and no apology. The court thus did not abuse its discretion in
awarding Rule 68 attorneys fees to the defendants.
V. CONCLUSION
Because Lowell did not raise a genuine issue of
material fact regarding defendants actual malice, we affirm the
award of summary judgment against him on his defamation claim.
Because this case presents neither a flagrant constitutional
violation nor a situation where other remedies for any violation
do not exist, we affirm the superior courts denial of Lowells
implied constitutional tort cause of action. Because the
superior court did not abuse its discretion in denying Lowells
claim for declaratory relief, the actual malice standard applies
to defamation claims for declaratory relief, and declaratory
relief was not an appropriate remedy for threatened criminal
prosecution against Lowell, the superior court properly dismissed
Lowells request for declaratory relief. Because Civil Rule 37(c)
sanctions and attorneys fees may be imposed for a failure to
admit that which the requesting party later proves, and no
exceptions under the rule apply here, the superior court did not
abuse its discretion in imposing sanctions and fees. Finally,
because defendants valid settlement offer which was more
favorable to the defendants was not accepted by Lowell, the
superior court was within its discretion in awarding fees under
Civil Rule 68.
For these reasons, we AFFIRM the decision of the
superior court in all respects.
_______________________________
1 Lowell admitted that he had been a public figure in the
context of the Fairbanks City-Borough Consolidation issue between
April 1998 and August 28, 2001. But following the consolidation
petitions election defeat on the latter date, Lowell claimed, it
ceased to be a public issue, and Lowell retired from any further
activities related to consolidation. Lowell argued that a public
figure ceases to be a public figure when the controversy into
which he injects himself ceases to be a public controversy.
2 Lowell does not dispute the substantive determination
of this issue on appeal.
3 Mt. Juneau Enters., Inc. v. Juneau Empire, 891 P.2d
829, 834 (Alaska 1995).
4 Id.
5 Angnabooguk v. State, Dept of Natural Res., 26 P.3d
447, 451 (Alaska 2001).
6 Id.
7 Brause v. State, Dept of Health & Soc. Servs., 21 P.3d
357, 358 (Alaska 2001). Lowell asserts that [i]n reviewing the
trial courts exercise of discretion to grant or refuse
declaratory relief, the appellate court may substitute its
judgment for that of the lower court. Lowell cites Jefferson v.
Asplund, 458 P.2d 995, 998 (Alaska 1969), in support of this
assertion. In Jefferson we did not adopt the substituted
judgment standard of review, which had been suggested by
Professor Moore. Id. (citation omitted). Rather, we merely
noted Moores proposed standard, and warned that we choose to make
no comment upon the merits of his thesis. Id. We instead
stressed the clearly significant role of judicial discretion in
the declaratory process. Id. at 997.
8 Dobos v. Ingersoll, 9 P.3d 1020, 1026 (Alaska 2000)
(citing Strong Enters., Inc. v. Seaward, 980 P.2d 456, 458
(Alaska 1999)).
9 Id. (citing Cockerham v. State, 933 P.2d 537, 539 n.9
(Alaska 1997)).
10 Van Deusen v. Seavey, 53 P.3d 596, 603-4 (Alaska 2002).
11 Glamann v. Kirk, 29 P.3d 255, 259 (Alaska 2001); Andrus
v. Lena, 975 P.2d 54, 58 (Alaska 1999).
12 Van Deusen, 53 P.3d at 603 n.23.
13 Mt. Juneau Enters., Inc. v. Juneau Empire, 891 P.2d
829, 834-35 (Alaska 1995) (citing New York Times Co. v. Sullivan,
376 U.S. 254, 283 (1964), and Curtis Publg Co. v. Butts, 388 U.S.
130 (1967)).
14 Id., 891 P.2d at 834 (citing New York Times Co. v.
Sullivan, 376 U.S. 254, 283 (1964)).
15 Moffat v. Brown, 751 P.2d 939, 941 (Alaska 1988).
16 Mt. Juneau, 891 P.2d at 838 (citing St. Amant v.
Thompson, 390 U.S. 727 (1968)).
17 Id. (citing Beckley Newspapers Corp. v. Hanks, 389 U.S.
81, 84-85 (1967)).
18 Moffat, 751 P.2d at 945-46 (defendants reference to
boycott of abortion procedures by hospital nursing staff, while
technically incorrect, was not malicious where defendant had been
told that the nursing staff objected to abortionists methods,
that ever-increasing number of nurses refused to assist in
abortions, and that hospital was forced to obtain nurses from
other communities).
19 Id. at 941.
20 Id. at 943.
21 Id. at 944, quoting Dairy Stores, Inc. v. Sentinel
Publg Co., 516 A.2d 220, 236 (N.J. 1986).
22 Id. at 943.
23 Id. at 944.
24 Id. at 942 (quoting St. Amant v. Thompson, 390 U.S.
727, 732 (1968)).
25 Id. at 946 (quoting St. Amant, 390 U.S. at 732).
26 Lowell and other members of the Consolidation Committee
consulted instead with various lower-level city officials or
workers, including a police lieutenant, the city Director of
Public Works, and the city Surveyor.
27 Thoma v. Hickel, 947 P.2d 816, 824 n.5 (Alaska 1997)
(citing Bivens v. Six Unknown Named Agents of the Fed. Bureau of
Narcotics, 403 U.S. 388 (1971)).
28 Id.; see also Vest v. Schafer, 757 P.2d 588, 598
(Alaska 1988) (judiciary will not hold state liable for damages
on grounds that legislature enacted statute later invalidated as
unconstitutional); Walt v. State, 751 P.2d 1345, 1353 (Alaska
1988) (where legislature has provided administrative remedial
system court does not address availability of Bivens-type
action); State v. Haley, 687 P.2d 305, 317-18 (Alaska 1984)
(where there is statutory right of action court does not reach
availability of Bivens-type action); King v. Alaska State Hous.
Auth., 633 P.2d 256, 259-61 (Alaska 1981) (concern over
penalizing public duplicatively by awarding damages for rigged
bidding constitutes special factor counseling hesitation in
creating damages remedy under Bivens).
29 Dick Fischer Dev. No. 2 v. State of Alaska, Dept of
Admin., 838 P.2d 263, 268 (Alaska 1992).
30 In King, 633 P.2d at 261 n.5, we noted our agreement
with the 5th Circuits flagrancy requirement discussed in Hearth,
Inc. v. Dept of Pub. Welfare, 612 F.2d 981, 982 (5th Cir. 1980).
Hearth interpreted Bivens and Davis v. Passman, 442 U.S. 228
(1979), to provide a damages remedy against the Federal
Government for a constitutional violation only when a violation
is flagrant and no alternative remedy is available. In Passman,
a female Congressional staffer sued a U.S. Congressman for
depriving her of an employment interest on the basis of sex in
violation of the 5th Amendment after he fired her explicitly
because of her sex. Passman, 442 U.S. at 230-31. In Bivens, the
plaintiff sued Federal drug agents for violating his 4th
Amendment rights after the agents mistook him for a drug dealer,
entered his home without a warrant, manacled him in front of his
wife and children, threatened his family with arrest, and
searched his home also without a warrant. Bivens, 403 U.S. at
389. He was later taken into custody, interrogated, and
subjected to a visual strip search. Id.
31 Lowell mentions Burrell v. Disciplinary Bd. of Alaska
Bar Assn, 777 P.2d 1140 (Alaska 1989), In re Vollintine, 673 P.2d
755 (Alaska 1983), and In re Craddick, 602 P.2d 406 (Alaska
1979), to prove that threatened criminal prosecution by an
attorney to gain advantage in a civil matter is wrongful conduct.
That point is not disputed. But these cases do not strengthen
Lowells argument that defendants behavior was flagrant and cannot
be adequately punished by existing tort remedies because the
wrongful conduct in each case was addressed by disciplinary
proceedings not an implied constitutional right of action.
Burrell, 777 P.2d at 1141; Vollintine, 673 P.2d at 756-57;
Craddick, 602 P.2d at 407-8. Moreover, the wrongful conduct in
each of these cases was far more flagrant than the conduct in
this case. In Burrell, the conduct was aggravated by the
defendants repeated offenses and his refusal to admit any
wrongdoing. 777 P.2d at 1145. In Vollintine, the attorney
explicitly threatened opponents in order to influence a pending
matter and defamed an opponent as an incompetent and racist liar.
673 P.2d at 756-58. In Craddick, the Disciplinary Board found
that the defendant committed clear and flagrant violations of
Disciplinary Rules. 602 P.2d at 408.
32 Thoma, 947 P.2d at 824 n.5.
33 Brause v. State, Dept of Health & Soc. Servs., 21 P.3d
357, 358 (Alaska 2001).
34 Alaska R. Civ. P. 57(a).
35 Jefferson v. Asplund, 458 P.2d 995, 1000 (Alaska 1969)
([T]he requirements of pleadings in actions seeking declaratory
relief do not differ from those standards of pleadings governing
other types of civil actions.) (citing Gomillion v. Lightfoot,
364 U.S. 339 (1960)); see generally, Alaska R. Civ. P. 8.
36 Id. at 997-98 (citing Borchard, Declaratory Judgments
at 299 (2d ed. 1941)).
37 Id. at 998.
38 Id. at 996 & n.4. Compare Fed. R. Civ. P. 57 and 28
U.S. 2201-2202 (Federal Declaratory Judgment Statute).
39 Id. at 997 n.7.
40 AS 22.10.020(g) provides, in relevant part: In case of
an actual controversy in the state, the superior court, upon the
filing of an appropriate pleading, may declare the rights and
legal relations of an interested party seeking the declaration,
whether or not further relief is or could be sought.
41 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice and Procedure: Civil 2751 at 456 (3d ed.1998).
42 Id. at 457-58.
43 Id. at 457.
44 515 U.S. 277 (1995).
45 Id. at 286.
46 Id. (emphasis in original).
47 Asplund, 458 P.2d at 997 (quoting 28 U.S.C. 2201).
48 Wilton, 515 U.S. at 288.
49 Id.
50 Id. at 287-88.
51 Wright, Miller & Kane, supra note 41, 2758-59; Wilton,
515 U.S. at 279-82.
52 Wright, Miller & Kane, supra note 41, 2758 at 513.
53 376 U.S. 254 (1964).
54 418 U.S. 323 (1974).
55 Jefferson v. Asplund, 458 P.2d 995, 997 (Alaska 1969).
56 Id.
57 See, e.g., Intl Assn of Machinists & Aerospace Workers
v. Tennessee Valley Auth., 108 F.3d 658, 668 (6th Cir. 1997)
(claim for declaratory relief is barred to the same extent that
the claim for substantive relief on which it is based would be
barred).
58 New York Times, 376 U.S. at 270.
59 Id. at 271.
60 Id. at 271-72 (quotations omitted).
61 Brause v. State, Dept of Health & Soc. Servs., 21 P.3d
357, 358 (Alaska 2001). The requirement of standing means that
the plaintiff must have a sufficient stake in an otherwise
justiciable controversy, and must have been injured or been
threatened with the injury by governmental action complained of.
Best v. Municipality of Anchorage, 712 P.2d 892, 895 n.4 (Alaska
App. 1985) (quoting Blacks Law Dictionary 1260-61 (rev. 5th ed.
1979)). The requirement of ripeness means there must be a
substantial controversy, between parties having adverse legal
interests, of sufficient immediacy and reality to warrant the
issuance of a declaratory judgment. Brause, 21 P.3d at 359
(quoting 13A Charles Alan Wright, et al., Federal Practice and
Procedure 3532, at 112 (2d ed. 1984)).
62 New Hampshire Hemp Council, Inc. v. Marshall, 203 F.3d
1, 4-5 (1st Cir. 2000) (citing 13A Wright, Miller & Cooper,
Federal Practice and Procedure 3532.5, at 175-80 (2d ed.1984)).
63 Id. at 5.
64 Id.
65 Alaska R. Civ. P. 37(c)(2) (emphasis added).
66 Dobos v. Ingersoll, 9 P.3d 1020, 1026 (Alaska 2000).
67 Since Lowells public figure status was clearly a
determination of vital importance to the outcome of his
defamation claim, Exception (B) is inapplicable. If Lowell had
reasonable ground or other good reason for failing to admit he
was a public figure, he has not suggested it in his appellate
briefings, and so Exceptions (C) and (D) do not apply.
68 Lowells briefing also seems to suggest a privilege or
attorney work-product exemption from the requested admission.
The point is insufficiently explained and supported, and we do
not consider it.
69 Lowell actually bases his argument that the request was
objectionable on Rule 26(b)(1), rather than Rule 36(a), as
Exception (A) requires.
70 Rule 36(a) states in relevant part that [a] party may
serve upon any other party a written request for the admission .
. . of the truth of any matters . . . that relate to statements
or opinions of fact or of the application of law to fact.
(Emphasis added.) This language clearly indicates that a party
may not request the admission of a purely legal conclusion,
though neither the text of the rule nor this courts caselaw make
the point explicitly. Federal cases interpreting Rule 36(a)s
identical federal counterpart have held that requests for pure
admissions of law are improper. See, e.g., Reliance Ins. Co. v.
Marathon LeTourneau Co., 152 F.R.D. 524, 525 n.2 (S.D.W. Va.
1994); Williams v. Krieger, 61 F.R.D. 142, 144 (S.D.N.Y. 1973).
71 Mt. Juneau Enters., Inc. v. Juneau Empire, 891 P.2d
829, 835-36 (Alaska 1995) (citations omitted) (holding that
determination of individuals public figure status may be resolved
on summary judgment if the facts relating to public figure status
are uncontroverted).
72 Alaska R. Civ. P. 1.
73 Riley v. N. Commercial Co., Mach. Div., 648 P.2d 961,
965 (Alaska 1982).
74 Lowell does not challenge the award of fees under Rule
82, insofar as the defendants were the prevailing party. Lowell
also does not challenge the specific amounts of fees claimed by
the defendants and awarded by the superior court.
75 See McCauley v. Transunion, L.L.C., 2005 WL 675565 at
*2 (2d Cir. Mar. 24, 2005) (citing Cathas v. Local 134 IBEW, 233
F.3d 508, 512 (7th Cir. 2002) (Rule 68 offer may contain
disclaimer of liability). See also Charles Alan Wright, Arthur
R. Miller & Richard l. Marcus, Federal Practice and Procedure
3002 at 93 n.20 (2d ed.1997) (citing relevant cases).
76 Lowell does not challenge the defendants offer as
unreasonable or made in bad faith. A Rule 68 offer of judgment
may be invalid where a party disingenuously makes a low offer so
that it may benefit from Rule 68. See Beattie v. Thomas, 668
P.2d 268, 274 (Nev. 1983) (In determining the validity of Rule 68
offers, trial courts should consider (1) whether the plaintiffs
claim was brought in good faith; (2) whether the defendants offer
of judgment was reasonable and in good faith in both its timing
and amount; (3) whether the plaintiffs decision to reject the
offer and proceed to trial was grossly unreasonable or in bad
faith; and (4) whether the fees sought by the offeror are
reasonable and justified in amount.). However, we need not reach
this issue because Lowell does not raise it.
77 Cf. Domanski v. Funtime, 149 F.R.D. 556, 558 (N.D. Ohio
1993) (damages of $5,581 and permanent injunction held more
favorable than offer of $9,500); Lish v. Harpers Magazine Found.,
148 F.R.D. 516, 519 (S.D.N.Y. 1993) (finding of copyright
violation and vindication of authors right to control first
publication held more favorable than offer of $250).
78 Rules v. Sturn, 661 P.2d 615, 616 (Alaska 1983).
79 Rule 68 prompts both parties to a suit to evaluate the
risks and costs of litigation, and to balance them against the
likelihood of success upon trial on the merits. Marek v. Chesny,
473 U.S. 1, 5 (1985).
