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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. City of Kenai v. Friends of the Recreation Center, Inc. (02/17/2006) sp-5989
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
| CITY OF KENAI, an Alaska | ) |
| municipal corporation, | ) Supreme Court No. S-11506 |
| ) | |
| Appellant, | ) Superior Court No. 3KN-03-503 CI |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| FRIENDS OF THE RECREATION | ) [No. 5989 - February 17, 2006] |
| CENTER, INC., an Alaska corporation, | ) |
| MARK NECESSARY, ANITA | ) |
| NECESSARY, and CLIFFORD D. | ) |
| MASSIE, Individually, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kenai,
Harold M. Brown, Judge.
Appearances: Cary R. Graves, City Attorney,
Kenai, for Appellant. John E. Havelock, John
E. Havelock Attorney at Law, Anchorage, for
Appellees.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
Was it error to award full reasonable attorneys fees to
public interest litigants who sued the City of Kenai? They
claimed that awarding a contract to manage the citys recreation
center without competitive bidding violated the citys code. The
superior court entered a preliminary injunction preventing the
city from using public funds to pay the manager, but later
dismissed the suit as moot after the city amended the pertinent
ordinance and recontracted with the manager. Because it was not
an abuse of discretion to enter the preliminary injunction, we
conclude that the court did not err in finding that the
plaintiffs were the prevailing parties. We also conclude that
the dismissal for mootness did not deprive them of that status,
and that the superior court was not obliged to apportion the
attorneys fees award.
II. FACTS AND PROCEEDINGS
In early 2003 the City of Kenai was examining options
for adjusting its budget; the options included budget cuts. City
employees had operated the citys Kenai Recreation Center since it
opened in the 1980s, but it appeared that the city could realize
net savings of $110,000 by contracting for private management of
the center. The city therefore solicited from the Boys & Girls
Club of the Kenai Peninsula (the club) a proposal for a
Partnering Agreement, a contract under which the club would
manage the center. The city did not solicit competitive bids for
the proposed contract, and the city manager discouraged another
interested private party from bidding.
Over the next several months the Kenai Parks &
Recreation Advisory Commission which makes recommendations to
the city council regarding parks and recreation facilities in
Kenai and the city council met to discuss a partnering agreement
with the club. The city council approved a contract with the
club on May 21, 2003. Friends of the Recreation Center, Inc. and
three individuals, Mark and Anita Necessary and Clifford Massie,
(collectively, Friends) sued the city on June 26, contending in
part that the city had not conducted competitive bidding for the
contract as required by city ordinance.1 Friends asked the
superior court for a temporary restraining order and a
preliminary injunction preventing the city from honoring its
contract with the club. Friends also asked for a judgment
declaring that the contract was void for, among other reasons,
violating the competitive bidding requirement of KMC 7.15.040.2
The club began operating the center on July 1, 2003.
On July 10 the superior court rejected the citys contention that,
because KMC 7.15.050(5) as it then read exempted a service of a
professional nature, the contract was exempt from KMC 7.15.040s
competitive bidding requirement. The court then issued a
preliminary injunction preventing the city from paying the club
under the contract.3
On September 3, 2003 the city council amended KMC
7.15.050(5) to exempt contracts for facilities management
services from KMC 7.15.040s competitive bidding requirement.4
The city then solicited bids for private management of the
center, assigned the clubs bid the highest score, and replaced
the clubs first contract with a second contract.
On May 7, 2004 the superior court granted the parties
joint motion to dismiss Friendss suit as moot. Then, over the
citys objection, it found that Friends was a public interest
litigant and the prevailing party, and awarded Friends its full
reasonable attorneys fees.
The city appeals.
III. DISCUSSION
A. Standard of Review
We review for abuse of discretion the superior courts
determination of prevailing party status for purposes of awarding
attorneys fees.5 We also review the issuance of preliminary
injunctions for abuse of discretion.6 We will find an abuse of
discretion only when we are left with a definite and firm
conviction, after reviewing the whole record, that the trial
court erred in its ruling. 7 But we review de novo the superior
courts legal determinations in issuing the preliminary
injunction.8 We will approve the apportionment of a prevailing
public interest litigants attorneys fees award only in
exceptional circumstances.9
B. Friends Is Entitled to Full Reasonable Attorneys Fees
as a Prevailing Party Public Interest Litigant.
Under Alaska law, the prevailing party is the one who
successfully prosecuted or defended the action and prevailed on
the main issue.10 The prevailing party in civil litigation is
normally entitled to recover partial attorneys fees under Alaska
Civil Rule 82. But if the prevailing party is a public interest
litigant, it is normally entitled to full reasonable attorneys
fees.11 Because the city does not argue on appeal that Friends is
not a public interest litigant, Friends is entitled to full
reasonable attorneys fees if the superior court did not err in
finding it to be the prevailing party.
After the superior court issued the preliminary
injunction, the city rendered the merits of the competitive
bidding dispute moot by amending KMC 7.15.050(5) to exempt
facilities management from KMC 7.15.040s competitive bidding
requirement and by entering into a new contract with the club.
We will decide the merits of otherwise-moot cases in order to
determine the prevailing party for purposes of attorneys fee
awards.12 We therefore focus on whether Friends successfully
prosecuted the case and prevailed on the main issue in obtaining
the preliminary injunction; this requires us to consider whether
the superior court abused its discretion in issuing the
preliminary injunction.
1. The superior court did not abuse its discretion in
issuing the preliminary injunction.
We have recently described what a plaintiff must show
to obtain a preliminary injunction:
The showing required to obtain a preliminary
injunction depends on the nature of the
threatened injury. If the plaintiff faces
the danger of irreparable harm and if the
opposing party is adequately protected, then
we apply a balance of hardships approach in
which the plaintiff must raise serious and
substantial questions going to the merits of
the case; that is, the issues raised cannot
be frivolous or obviously without merit. If,
however, the plaintiffs threatened harm is
less than irreparable or if the opposing
party cannot be adequately protected, then we
demand of the plaintiff the heightened
standard of a clear showing of probable
success on the merits.[13]
The superior court found that Friends faced irreparable
harm, that the city was adequately protected, and that Friends
demonstrated a substantial likelihood of success on the merits of
[its] claim.
a. The issues whether Friends was faced with
irreparable harm and whether the city was
adequately protected are moot.
Although the city argues that the superior court did
not make adequate findings that Friends was faced with
irreparable harm,14 it does not contend that Friends was not faced
with irreparable harm. If we were reviewing the issuance of a
preliminary injunction in a pending case, and concluded that the
findings were inadequate, we would remand to the superior court
for additional findings.15 But remanding for additional findings
in this case would be a needless exercise, given that the
ultimate issue in this attorneys fees appeal is whether Friends
was the prevailing party. The dispute that resulted in the
injunction in this case is moot. Because the city does not argue
that Friends was not faced with irreparable harm, we decline to
consider whether the superior court abused its discretion in
finding the threat of irreparable harm here.
The superior court also found that [t]he security
posted by [Friends] under the circumstances is sufficient to
protect the city. The city argues that it was not adequately
protected and that the superior courts finding was clearly
erroneous.
When a party requesting a preliminary injunction has
shown probable success on the merits, a preliminary injunction
may be issued even if the injury from the preliminary injunction
may not be adequately indemnified by a bond.16 The superior court
found that Friends had demonstrated a substantial likelihood of
success on the merits. Because the court thought it was more
likely than not that Friends would prevail on the merits of its
claim, we interpret the courts finding of substantial likelihood
of success on the merits as a finding of probable success on the
merits.17 If the superior court did not abuse its discretion in
concluding that Friends had demonstrated probable success on the
merits, any possible error in its finding that the city was
adequately protected is harmless. We therefore turn to whether
Friends demonstrated probable success on the merits.
b. Friends demonstrated probable success on the
merits.
There is no factual dispute on appeal that the city did
not conduct competitive bidding before awarding the original
management contract to the club. Whether Friends demonstrated
probable success on the merits therefore turns on the legal
question whether the pre-amendment version of KMC 7.15.050(5)
exempted management of the center from KMC 7.15.040s competitive
bidding requirement. Before September 3, 2003 KMC 7.15.050
provided: The following may be purchased without giving an
opportunity for competitive bidding: . . . (5) Contractual
services of a professional nature, such as engineering,
architectural, and medical services.
i. The superior court was not required to
defer to the citys interpretation of the
pre-amendment version of KMC
7.15.050(5).
The city, citing Laborers Local No. 942 v. Lampkin,18
contends that the reasonable basis test applies to the citys
interpretation of its procurement code. In Lampkin we held that
a citys interpretation of its own procurement code will be upheld
if there is a reasonable basis for the interpretation.19 Under
the rational basis test, we will uphold a governmental units
decision if it is supported by the facts and has a reasonable
basis in law, even if we may not agree with the [units] ultimate
determination.20 The city argues that because it had a reasonable
basis to conclude that the term professional services included
management of the center, the superior court abused its
discretion by issuing the preliminary injunction.
But we apply the reasonable basis standard of review to
a municipalitys interpretation of its own ordinances only when
this interpretation implicates complex matters or the formulation
of fundamental policy.21
Lampkin concerned a Fairbanks North Star Borough
requirement that the successful bidder for a school renovation
project enter into a previously negotiated Project Labor
Agreement (PLA).22 We noted that the construction project
unquestionably presented special challenges, and that the PLA
would facilitate necessary flexible scheduling and eliminate the
potential for strikes or other labor difficulties.23 We held the
borough had a reasonable basis to conclude that the PLA would
allow the borough to satisfy its minimum needs, its procurement
codes policy of maximum practicable competition, and the
procurement codes provisions dealing with sole source
procurement.24
The legal question in this case is far less complex,
involving only the meaning of services of a professional nature.
Nor is there any indication that defining that phrase implicates
the formulation of fundamental policy. We therefore conclude
that although the superior court held that the citys
interpretation failed even the reasonable basis test, the court
could have interpreted pre-amendment KMC 7.15.050(5) using its
independent judgment. Because we review de novo the superior
courts legal determinations in issuing the preliminary
injunction,25 we review the meaning of pre-amendment KMC
7.15.050(5) using our independent judgment. We then review for
abuse of discretion the superior courts determination of
probability of success on the merits and its ultimate decision to
issue the preliminary injunction.
ii. The superior court did not err in
holding that services of a professional
nature in the pre-amendment version of
KMC 7.15.050(5) did not include
management of the center.
The superior court relied on what it characterized as
the clear language of the ordinance in determining that
management of the center was not a service of a professional
nature. The city cites several cases from other jurisdictions
holding that in the context of similar procurement codes,
management of various facilities was professional in nature.26 At
least some of these cases are easily distinguishable.27 Moreover,
numerous cases from other jurisdictions hold that management of
facilities is not professional in nature and requires competitive
bidding.28 Opinions from other jurisdictions interpreting similar
statutes can be persuasive,29 but we turn first to our own methods
of statutory interpretation.
Interpretation of a statute begins with its text.30 We
apply the same rules of interpretation to municipal ordinances.31
In interpreting statutes, we have adopted a sliding scale
approach, under which [t]he plainer the statutory language is,
the more convincing the evidence of contrary legislative purpose
or intent must be.32 Blacks Law Dictionary defines professional
as [a] person who belongs to a learned profession or whose
occupation requires a high level of training and proficiency.33
Websters Third International Dictionary provides a similar
definition.34 [S]ervices of a professional nature are therefore
commonly understood to be services that are rendered by a member
of the learned professions or that require a high level of
training and proficiency.
The illustrative clause such as engineering,
architectural, and medical services that follows services of a
professional nature provides textual support for this
interpretation.35 Pursuant to the doctrine of ejusdem generis, a
general term, when followed by specific terms, will be
interpreted in light of the characteristics of the specific
terms, absent clear indication to the contrary.36 Before its 2003
amendment, KMC 7.15.050(5) listed only engineering,
architectural, and medical services as examples of services of a
professional nature. These specific examples all require
extensive education, training, and proficiency. Most professions
encompassed by these examples require licensing in Alaska.37
There has been no contention, much less any evidence, that
successful management of the citys recreation center requires
education, training, or proficiency equivalent to that required
of engineers, architects, and providers of medical services.
In light of the plain meaning of services of a
professional nature and the specific examples listed in pre-
amendment KMC 7.15.050(5), we conclude that the phrase services
of a professional nature does not include facilities management.
We therefore agree with the superior court that management of the
center does not involve services of a professional nature as that
phrase was used in pre-amendment KMC 7.15.050(5). The superior
court therefore did not abuse its discretion in finding that
Friends had demonstrated probable success on the merits.
2. Friends is the prevailing party even though the
city succeeded in privatizing management of the
center.
The city asserts that Friends is not the prevailing
party because the city accomplished exactly what it set out to
accomplish and what Friendss lawsuit sought to prevent private
management of the center. It argues that because Friends did not
achieve its goal, Friends is not the prevailing party.
When determining prevailing party status, we have
consistently looked to whether the party successfully prosecuted
or defended the action and to whether the party prevailed on the
main issue.38 Our determination of prevailing party status has
therefore traditionally focused on the litigation itself.
Furthermore, the purposes of the public interest
litigant exception to Civil Rule 82 suggest that the citys
political success in amending KMC 7.15.050(5) and entering into a
second management contract with the club is not an appropriate
basis for concluding that Friends is not the prevailing party.
We award prevailing public interest litigants full reasonable
attorneys fees to encourage plaintiffs to raise issues of public
interest.39 This suggests that the focus of the prevailing party
determination should be on the litigation, rather than on
contemporaneous political or contractual developments.
The city has not convinced us that a public interest
litigant that brings a meritorious claim against a governmental
unit and obtains a preliminary injunction loses its prevailing
party status if, through the political process, the governmental
unit later moots the lawsuit and accomplishes its challenged
goals. Because Friends succeeded in obtaining the only judicial
relief granted in this case before it was dismissed without
objection as moot following amendment of the ordinance, the
superior court did not abuse its discretion in finding that
Friends was the prevailing party.40
C. No Extraordinary Circumstances Justify Apportioning
this Attorneys Fees Award.
Although prevailing public interest litigants are
generally entitled to full reasonable attorneys fees, we held in
Dansereau v. Ulmer that attorneys fee awards may be apportioned
for prevailing public interest litigants when exceptional
circumstances exist.41 We have suggested that raising frivolous
issues or issues included only to inflate prospective attorneys
fee award may constitute exceptional circumstances.42
The city argues that Friends abandoned three of the
claims made in its complaint by failing to respond to the citys
motion for summary judgment on those claims.43 The city claims
that this abandonment, coupled with Friendss failure to achieve
its goal, establishes exceptional circumstances that warrant
apportionment of any attorneys fees awarded to Friends.
But the city moved to dismiss the underlying litigation
as moot at the same time it moved for summary judgment on the
claims it characterizes as abandoned. Friends very appropriately
recognized that the underlying litigation was moot and joined the
citys motion to dismiss the case for mootness. It was therefore
not necessary to oppose the motion for summary judgment on the
merits as to those three claims. Friendss decision not to oppose
summary judgment as to those claims therefore cannot be
characterized as an abandonment that might somehow demonstrate
exceptional circumstances justifying apportionment of fees. And,
as we stated above, Friends succeeded in obtaining judicial
relief. The city cannot make this an exceptional case by mooting
it through the political process. Because no exceptional
circumstances exist, the superior court did not abuse its
discretion in declining to apportion the attorneys fee award.44
IV. CONCLUSION
For the reasons discussed above, we AFFIRM the superior
courts judgment.
_______________________________
1 Kenai Municipal Code (KMC) 7.15.040(a) requires the
city, before awarding a contract for services, to solicit bids
from at least three potential contractors, if possible, and/or
publish notice of the proposed [contract] in a newspaper of
general circulation within the city. KMC 7.15.040(f) requires
the city to award the contract to the lowest responsible bidder.
KMC 7.15.050 lists exceptions to the competitive
bidding requirement of KMC 7.15.040. When the city first
contracted with the club and Friends filed suit, KMC 7.15.050(5)
provided that [t]he following may be purchased without giving an
opportunity for competitive bidding: . . . (5) Contractual
services of a professional nature, such as engineering,
architectural, and medical services. We refer to this as the pre-
amendment version of KMC 7.15.050(5). While Friendss suit was
pending, the city council amended KMC 7.15.050(5) to include
facilities management. See infra note 4 and accompanying text.
2 Friends also alleged that (1) the contract was illegal
because the club did not have an Alaska business license; (2)
notice of the city council meetings at which the potential
contract was discussed was inadequate, in violation of Alaskas
Open Meetings Act (AS 44.62.310); (3) residents were not allowed
to participate or comment at a city council meeting, in violation
of the Open Meetings Act; and (4) the Kenai City Charter violates
the constitutional right to referendum by allowing for only a one-
month signature-gathering period and by limiting the right to
City Council ordinances only, so that the contract with the club
could not be voided by referendum. The superior court did not
base the preliminary injunction on any of these claims. We
discuss in Part III.C the citys contention that because Friends
did not prevail on these claims, any attorneys fees awarded to
Friends should be apportioned by issue.
3 The superior court later allowed the release of city
funds to compensate the club for services rendered before the
preliminary injunction was issued.
4 KMC 7.15.050 now reads:
The following may be purchased without giving
an opportunity for competitive bidding: . . .
(5) Professional services. Professional
services means those advisory, consulting,
architectural, management, engineering,
research or development services that involve
the exercise of discretion and independent
judgment together with an advanced or
specialized knowledge, expertise or training
gained by formal studies or experience.
Examples of professional services include . .
. facilities management . . . .
We refer to this version of KMC 7.15.050(5) as the post-
amendment version.
5 Fernandes v. Portwine, 56 P.3d 1, 5 (Alaska 2002).
6 State, Div. of Elections v. Metcalfe, 110 P.3d 976, 978
(Alaska 2005).
7 DeSalvo v. Bryant, 42 P.3d 525, 528 (Alaska 2002)
(quoting Arbelovsky v. Ebasco Servs., Inc., 922 P.2d 225, 227
(Alaska 1996)).
8 See People ex rel. Gallo v. Acuna, 929 P.2d 596, 626
(Cal. 1997) (Of course, questions underlying the preliminary
injunction are reviewed under the appropriate standard of review.
Thus, for example . . . issues of pure law are subject to
independent review.).
9 Dansereau v. Ulmer, 955 P.2d 916, 920 (Alaska 1998).
10 Matanuska Elec. Assn, Inc. v. Rewire the Bd., 36 P.3d
685, 690 (Alaska 2001).
11 Dansereau, 955 P.2d at 918.
AS 09.60.010 was amended in 2003 to prohibit the award
of full reasonable attorneys fees to prevailing public interest
litigants except in cases concerning the establishment,
protection, or enforcement of a constitutional right. AS
09.60.010(b), (c). AS 09.60.010(b) applies to all civil actions
and appeals filed on or after the Acts effective date of
September 11, 2003. Ch. 86, 4, SLA 2003.
The city has not argued that AS 09.60.010(b) has any
bearing on the attorneys fee award in this case, and the parties
have not briefed the issue. We express no view as to AS
09.60.010(b)s applicability to this case, but note that
legislative history may inform the interpretation of the term
appeal in ch. 86, 4, SLA 2003. See Judiciary Committee
Substitute for House Bill (C.S.H.B. (Jud)) 145, 23rd Leg., 1st
Sess. (2003); House Judiciary Committee Minutes, May 7, 2003
(testimony of Robert B. Briggs, staff attorney for the Disability
Law Center of Alaska, Inc., commenting on an April 21, 2003
letter by an assistant attorney general explaining and
interpreting H.B. 145); see also AS 22.10.020(a) , (d). To the
extent there is a contention that Friends is or is not entitled
to full reasonable attorneys fees as a prevailing public interest
litigant, the parties will have an opportunity to address the
applicability of AS 09.60.010(b) in the context of a motion for
attorneys fees under Alaska Appellate Rule 508.
12 See Bruner v. Petersen, 944 P.2d 43, 47 n.4 (Alaska
1997) (citing LaMoureaux v. Totem Ocean Trailer Express, Inc.,
651 P.2d 839, 840 n.1 (Alaska 1982)).
13 State, Div. of Elections v. Metcalfe, 110 P.3d 976, 978
(Alaska 2005) (internal quotation marks and citations omitted).
14 See Alaska R. Civ. P. 52(a) ([I]n granting or refusing
interlocutory injunctions the court shall similarly set forth the
findings of fact and conclusions of law constitute the grounds of
its action.); Alaska R. Civ. P. 65(d) (Every order granting an
injunction and every restraining order shall set forth the
reasons for its issuance; [and] shall be specific in terms . . .
.).
15 See State, Dept of Fish & Game v. Pinnell, 461 P.2d
429, 432 & n.8 (Alaska 1969).
16 N. Kenai Peninsula Rd. Maint. Serv. Area v. Kenai
Peninsula Borough, 850 P.2d 636, 639 (Alaska 1993).
17 Likelihood is defined as probability and appearance of
probable success. Websters Third New International Dictionary
1310 (1966).
18 Laborers Local No. 942 v. Lampkin, 956 P.2d 422 (Alaska
1998).
19 Id. at 435.
20 Gunderson v. Univ. of Alaska, Fairbanks, 922 P.2d 229,
233 (Alaska 1996) (quoting Tesoro Alaska Petroleum Co. v. Kenai
Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987)).
21 Lampkin, 956 P.2d at 432 n.11.
22 Id. at 427-28.
23 Id. at 435.
24 Id. at 432, 435-36.
25 See People ex rel. Gallo v. Acuna, 929 P.2d 596, 626
(Cal. 1997).
26 See Hurd v. Erie County, 34 A.D.2d 289, 292 (N.Y. App.
Div. 1970) (professional football stadium); City of Cleveland v.
Laushe, 49 N.E.2d 207, 211 (Ohio App. 1943) (zoological garden);
Lieberman Org. v. City of Phila., 595 A.2d 638, 640-41 (Pa. 1990)
(homeless shelter).
27 The facilities in Erie and Cleveland were considerably
larger and more complex than the facility in Kenai, and they
required far more expertise to manage.
28 See, e.g., City of Inglewood-L.A. County Civic Ctr.
Auth. v. Superior Court of L.A. County, 103 Cal. Rptr. 689, 692
(Cal. 1972) (rejecting argument that management contract for
public construction project is analogous to contract for
engineering and architectural services); Glatstein v. City of
Miami, 399 So. 2d 1005, 1009 (Fla. App. 1981) (holding that
contract for management of theme park was not professional
service); Communicare, Inc. v. Woody County Bd. of Commrs, 829
N.E.2d 706, 712-15 (Ohio App. 2005) (holding that contract for
management services for operation of nursing home was not
professional service enumerated by statute). These facilities
seem more analogous to the Kenai facility than those found in
Erie, Cleveland, or Philadelphia.
29 See Nicholson v. Sorensen, 517 P.2d 766, 770 n.9
(Alaska 1973) ([A] construction of a similar statute by the
highest court of another state rendered after adoption of the
statute by Alaska may be persuasive, but a statute is presumed to
have been adopted with the interpretation that had been placed
upon it prior to its Alaska enactment by the highest court of the
state from which it was taken.). The city does not suggest that
the pre-amendment version of KMC 7.15.050(5) was taken from any
of the statutes interpreted in the cases cited in supra note 26.
We therefore accord them no extraordinary persuasive force.
30 Bartley v. State, Dept of Admin., Teachers Ret. Bd.,
110 P.3d 1254, 1258 (Alaska 2005).
31 See Marlow v. Municipality of Anchorage, 889 P.2d 599,
602 (Alaska 1995) (applying sliding scale approach to
interpretation of ordinance).
32 Govt Employees Ins. Co. v. Graham-Gonzalez, 107 P.3d
279, 284 (Alaska 2005).
33 Blacks Law Dictionary 1226 (7th ed. 1999). AS
01.10.040(a) requires that
[w]ords and phrases shall be construed
according to the rules of grammar and
according to their common and approved usage.
Technical words and phrases and those which
have acquired a peculiar and appropriate
meaning, whether by legislative definition or
otherwise, shall be construed according to
the peculiar and appropriate meaning.
See also Graham-Gonzalez, 107 P.3d at 284 (In assessing statutory
language, unless words have acquired a peculiar meaning, by
virtue of statutory definition or judicial construction, they are
to be construed in accordance with their common usage.) (internal
quotations omitted).
The city argues that it has interpreted services of a
professional nature to include facilities management in the past.
But the city does not point to a peculiar legislative definition.
Moreover, we do not regard two other facilities management
contracts that the city claims it made without competitive
bidding as imbuing the term professional with a peculiar meaning.
We therefore look to the terms common and approved usage.
34 Websters Third New International Dictionary 1811 (1966)
(defining professional, when used as an adjective, as describing
one engaged in one of the learned professions or in an occupation
requiring a high level of training and proficiency).
35 The term such means [o]f this or that kind. Blacks Law
Dictionary 1446 (7th ed. 1999). Under Alaska law, words and
phrases in statutes generally are to be construed according to
their common and approved usage. Human Res. Co. v. Alaska Commn
on Post Secondary Educ., State of Alaska, 946 P.2d 441, 444
(Alaska 1997). The use of such as in pre-amendment KMC
7.15.050(5) therefore indicates that the list of services of a
professional nature is meant to be illustrative rather than
exclusive.
36 West v. Umialik Ins. Co., 8 P.3d 1135, 1141 (Alaska
2000) (citing State Farm Fire & Cas. Co. v. Bongen, 925 P.2d
1042, 1046 (Alaska 1996)); see also Cable v. Shefchik, 985 P.2d
474, 480 (Alaska 1999) (explaining that under doctrine of
ejusdem generis, a general term, like tool, when modified by
specific terms, like drills, saws and other hand tools, will be
interpreted in light of those specific terms, absent a clear
indication to the contrary ) (quoting Alaska Construction Code
05.090(c)(3)(A); Bongen, 925 P.2d at 1046).
37 Cf. AS 08.48.171 (requiring registration of architects
and engineers); AS 08.64.170 (requiring registration for practice
of medicine, podiatry, and osteopathy); AS 08.68.160 (requiring
registration of nurses).
38 Matanuska Elec. Assn, Inc. v. Rewire the Bd., 36 P.3d
685, 690 (Alaska 2001); Meidinger v. Koniag, Inc., 31 P.3d 77, 88
(Alaska 2001); De Witt v. Liberty Leasing Co. of Alaska, 499 P.2d
599, 601 (Alaska 1972); Buza v. Columbia Lumber Co., 395 P.2d
511, 514 (Alaska 1964).
39 Southeast Alaska Conservation Council, Inc. v. State,
665 P.2d 544, 553 (Alaska 1983) (quoting Anchorage v. McCabe, 586
P.2d 986, 990 (Alaska 1977)).
40 See Halloran v. State, Div. of Elections, 115 P.3d 547,
554 (Alaska 2005) (holding that obtaining temporary restraining
order may be basis for finding plaintiff to be prevailing party
when the restraining order was only relief granted in
litigation).
41 Dansereau v. Ulmer, 955 P.2d 916, 918-20 (Alaska 1998).
42 Id. at 920.
43 As stated above, the superior court issued the
preliminary injunction based on Friendss claim that the city
violated its competitive bidding requirement. The remaining
claims are enumerated in supra note 2. The city argues that
[o]ne of them was dismissed by the plaintiffs and three were
essentially abandoned.
44 At oral argument on appeal, the city disclaimed any
contention that any award of attorneys fees to Friends should be
apportioned by litigation stage. It is therefore unnecessary to
consider whether apportionment on that basis would be proper
here. Cf. Halloran, 115 P.3d at 554-55 (instructing superior
court on remand to consider apportionment of attorneys fee award
by stage of litigation if it determined that plaintiff was
prevailing party); Hickel v. Southeast Conference, 868 P.2d 919,
926 (Alaska 1994) (discussing propriety of apportioning attorneys
fee award by litigation stage).
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