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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Native Village of Nunapitchuk (04/20/2007) sp-6118
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
| STATE OF ALASKA, | ) |
| ) Supreme Court No. S-11525 | |
| Appellant, | ) |
| v. | ) |
| ) Superior Court No. | |
| NATIVE VILLAGE OF NUNAPITCHUK, | ) 1JU-03-700 CI |
| ASSOCIATION OF VILLAGE COUNCIL | ) |
| PRESIDENTS, ALASKA CENTER FOR | ) |
| THE ENVIRONMENT, NORTHERN | ) |
| ALASKA ENVIRONMENTAL CENTER, | ) |
| SOUTHEAST ALASKA CONSERVATION | ) |
| COUNCIL, and THE REPUBLICAN | ) |
| MODERATE PARTY, INC., | ) |
| ) | |
| Appellees. | ) |
| ) | |
| FRANK MURKOWSKI, in his official | ) Supreme Court No. S-11745 |
| capacity as Governor of the State of Alaska, | ) |
| ) | |
| Appellant, | ) |
| v. | ) Superior Court No. |
| ) 1JU-04-534 CI | |
| ALASKA AFL-CIO; ALASKA PUBLIC | ) |
| EMPLOYEES ASSOCIATION/AFT; | ) |
| IBEW LOCAL 1547; PUBLIC | ) |
| EMPLOYEES LOCAL 71; OPERATING | ) |
| ENGINEERS LOCAL 302; ALASKA | ) |
| STATE EMPLOYEES ASSOCIATION/ | ) O P I N I O N |
| AFSCME LOCAL 52; ALASKA | ) |
| LABORERS LOCAL 341; and | ) |
| TEAMSTERS LOCAL 959, | ) No. 6118 - April 20, 2007 |
| ) | |
| Appellees. | ) |
| Appeal in File No. S-11525 from the Superior Court of the State of Alaska, First Judicial District, Juneau, Patricia Collins, Judge. Appeal in File No. S-11745 from the Superior Court of the State of Alaska, First Judicial District, Juneau, Larry R. Weeks, Judge. | |
Appearances: Craig J.
Tillery, Christopher M. Kennedy, Assistant
Attorneys General, Anchorage, Scott J.
Nordstrand, Acting Attorney General, David W.
M rquez, Attorney General, Juneau, for
Appellants State of Alaska and Frank
Murkowski. Eric D. Johnson, Association of
Village Council Presidents, Bethel, for
Appellees Native Village of Nunapitchuk and
Association of Village Council Presidents.
Thomas S. Waldo, Layla A. Hughes,
Earthjustice, Juneau, for Appellees Alaska
Center for the Environment, Northern Alaska
Environmental Center, and Southeast Alaska
Conservation Council. Nancy S. Wainwright,
Law Office of Nancy S. Wainwright, Anchorage,
for Appellee The Republican Moderate Party,
Inc. Linda M. OBannon, Paul L. Dillon,
Dillon & Findley, P.C., Anchorage, for
Appellees Alaska AFL-CIO, Alaska Public
Employees Association/AFT, IBEW Local 1547,
Public Employees Local 71, Operating
Engineers Local 302, Alaska State Employees
Association/AFSCME Local 52, Alaska Laborers
Local 341, and Teamsters Local 959.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
MATTHEWS, Justice.
I. INTRODUCTION
Challenged in these cases is an act of the 2003
Legislature (HB 145)1 that modifies the public interest litigant
exception2 to Alaska Civil Rule 82.3 Although the legislature
has the authority to change the civil rules, it may only do so by
a two-thirds vote of the members of each house. HB 145 was not
passed by these margins. The superior court in each case held
that HB 145 was invalid because it changes Rule 82 without the
required super-majority vote.
We conclude that the act is valid because it does not
change either the text or a judicial interpretation of the court
rule. Rather, it modifies a policy-based nontextual exception
that is an appropriate subject for legislative action. We also
narrowly construe HB 145, concluding that it does not preclude
consideration of any factors under subsection (b)(3) of Rule 82
that may justify varying attorneys fee awards calculated under
subsections (b)(1) and (2).
II. FACTS AND PROCEEDINGS
State v. Native Village of Nunapitchuk, No. S-11525
The Native Village of Nunapitchuk, Association of
Alaska Village Council Presidents, Alaska Center for the
Environment, Northern Alaska Environmental Center, Southeast
Alaska Conservation Council, and the Republican Moderate Party
(collectively Nunapitchuk) filed a complaint in the superior
court seeking a declaration that HB 145 is invalid. Nunapitchuk
claimed that the act changes a rule of practice and procedure of
this court without having been passed by a two-thirds vote of
each house as required by article IV, section 15 of the Alaska
Constitution and contravenes the right of access to the courts in
violation of the due process and equal protection clauses of the
Alaska Constitution. All parties moved for summary judgment.
Superior Court Judge Patricia Collins, in a thorough opinion,
concluded that summary judgment should be granted in favor of
Nunapitchuk.
The court entered final judgment in favor of
Nunapitchuk, declaring that HB 145 was not validly enacted and is
ineffective, because the bill purports to change rules governing
practice and procedure adopted by the Alaska Supreme Court
without notice of rule change and without having received the
requisite two-thirds vote of the members elected to both houses
of the legislature. The court also declared that the act is
invalid because the bills provisions precluding the courts from
considering equitable factors in the award of attorneys fees
impermissibly impede access to the courts in violation of the due
process and equal protection clauses of the Alaska Constitution.
Noting that it was not possible to sever the invalid portions of
HB 145 from those that are valid because there is no indication
that the legislature would have intended the remaining provisions
to stand on their own, the court declared HB 145 to be invalid in
its entirety.
Subsequently, the court awarded the plaintiffs which
each had separate counsel a total sum of just under $150,000 as
actual reasonable attorneys fees under the public interest
litigant exception.
Murkowski v. Alaska AFL-CIO, No. S-11745
Alaska AFL-CIO, Alaska Public Employees
Association/AFT, IBEW Local 1547, Public Employees Local 71,
Operating Engineers Local 302, Alaska State Employees
Association/AFSCME Local 52, Alaska Laborers Local 341, and
Teamsters Local 959 (collectively the Unions) sued Governor Frank
Murkowski and James S. Spalding, alleging that Spalding lacked
the background in labor that AS 23.05.360 requires for the
position with the Alaska Labor Relations Agency that the governor
had appointed Spalding to fill. The superior court granted a
temporary restraining order at the behest of the Unions, but
before the preliminary injunction hearing Spalding resigned from
his appointed position. The case was then dismissed by
stipulation with the question of court-awarded attorneys fees
reserved.
The Unions moved for full reasonable attorneys fees
under the public interest litigant exception. They contended
that the exception applied despite HB 145 because the act was
invalid for the reasons stated in Judge Collinss opinion in
Nunapitchuk. Over opposition, Superior Court Judge Larry R.
Weeks ruled that the Unions were entitled to full reasonable fees
of just over $38,000. Judge Weeks adopted Judge Collinss
opinion, adding that awarding attorneys fees is procedural
because the allocation of attorney fees is not so much a right of
itself but tends to be how rights are enforced.
The State4 appeals the declaratory judgment in
Nunapitchuk and the award of attorneys fees to the Unions in
Alaska AFL-CIO.
III. DISCUSSION
A. Background of Civil Rule 82, the Public Interest
Litigant Exception, and House Bill 145.
Judge Collins described Rule 82, the public interest
litigant exception, and HB 145. Concerning Rule 82 and the
public interest litigant exception, she wrote:5
Alaska is the only state with a general
loser pays rule for attorneys fees in most
civil litigation. Alaska courts generally
award partial attorneys fees to the
prevailing party in a civil case or appeal
pursuant to Alaska Rule of Civil Procedure 82
or Alaska Appellate Rule 508. However, Civil
Rule 82 has, since its adoption, allowed the
trial court discretion to vary a fee award
and Appellate Rule 508 provides full
discretionary powers to determine whether an
award of fees should be ordered on appeal.
The Alaska Supreme Court has long
recognized that strict application of the
loser pays provisions of Civil Rule 82 could
unfairly prejudice a litigants access to the
courts. In Malvo v. J.C. Penney Co., [512
P.2d 575 (Alaska 1973),] the court concluded
it was manifestly unreasonable to establish a
policy under Civil Rule 82 that would award
full fees to a prevailing party where the
non-prevailing party litigated in good faith.
The court noted that such a cost requirement
could offend due process by limiting access
to the court and, thus, the opportunity to be
heard.
In Gilbert v. State, [526 P.2d 1131
(Alaska 1974),] a residency requirement for
senate candidates was challenged as
unconstitutional. Although holding that the
residency requirement was constitutional, the
court stated: [A]s a matter of sound policy,
we hold that it is an abuse of discretion
[under Civil Rule 82] to award attorneys fees
against a losing party who has in good faith
raised a question of genuine public interest
before the courts.
In Anchorage v. McCabe, [568 P.2d 986
(Alaska 1977),] homeowners challenged a
zoning ordinance and won. The trial court
awarded full attorneys fees to the homeowners
pursuant to its discretionary power under
Civil Rule 82. The supreme court affirmed,
concluding that the action constituted public
interest litigation because of the presence
of three factors: (1) the effectuation of
strong public policies; (2) the fact that
numerous people received benefits from
plaintiffs litigation success; and (3) the
fact that only a private party could have
been expected to bring this action. The
court found that the homeowners were
effectively acting as private attorneys
general, raising issues of public interest,
and should not be discouraged in doing so by
the financial burdens of attorneys fees and
costs.
The McCabe court recognized that the
United States Supreme Court had recently
resisted the opportunity to expand the
private attorney general theory underlying
attorneys fees awards to public litigants in
Alyeska Pipeline Service v. Wilderness Soc.,
421 U.S. 240 (1975). The court distinguished
the conclusion in Alyeska that attorneys fees
awards should be by legislation, rather than
court rule or decision, because, unlike the
federal system, Alaska Civil Rule 82
specifically provides for the award of
attorneys fees to the prevailing party in
civil cases.
In Kenai Lumber Co. v. LeResche, [646
P.2d 215 (Alaska 1982),] the supreme court
added a fourth factor to the determination of
whether an action is public interest
litigation: whether a litigant claiming
public interest litigant status would have a
sufficient economic incentive to bring the
lawsuit even if it involved only narrow
issues lacking general importance.
In Dansereau v. Ulmer, [955 P.2d 916
(Alaska 1998),] a group of voters challenged
the legality of the 1994 gubernatorial
election in which Tony Knowles was elected
governor, alleging violation of election laws
and other misconduct. The voters prevailed
on one argument but did not prevail on the
others and the election was upheld. On
appeal, the supreme court held that the trial
court abused its discretion under Civil Rule
82 in failing to award full reasonable
attorneys fees to the voters, as public
interest litigants.
In sum, the Alaska Supreme Court has
interpreted the discretionary power granted
in Civil Rule 82 to deviate from the award
schedule set forth in the rule in fairly
precise terms. So long as a public interest
litigant meets the four criteria established
by the supreme court, (1) attorneys fees may
not be assessed against a losing public
interest litigant, (2) a winning public
interest litigant is entitled to full
reasonable attorneys fees, and (3) a public
interest litigant who prevails on some but
not all issues is also generally entitled to
full, reasonable attorneys fees. The supreme
court has further stated that the same
considerations as noted above apply to awards
of costs and attorneys fees on appeal.
[Thomas v. Bailey, 611 P.2d 536, 539 (Alaska
1980).]
(Footnotes omitted or added to text.)
Earlier in her opinion, Judge Collins described HB 145:
House Bill 145, codified as amendments
to AS 09.60.010 and AS 09.68.040, overrules
Alaska Supreme Court decisions as they relate
to public interest litigants. Section 2
creates a limited constitutional claimant
public interest litigant exception to Alaska
Rule of Civil Procedure 82. Section 2 also
prohibits a court from considering the public
interest nature of the claim in deciding cost
and fee awards, except for those
constitutional claims provided for in the
bill. Section 3 modifies AS 09.68.040 such
that public interest litigants may not be
excused from bond or security requirements
otherwise required for a stay or other
interlocutory relief.
B. Arguments on Appeal.
The State argues that HB 145 did not require a super-
majority vote of the legislature for two reasons:
(1) The public interest litigant exception is not a
court rule; rather it is a substantive rule of decisional law;
(2) Assuming that the act changes Rule 82, Rule 82 is
substantive rather than a rule of practice and procedure and thus
may be changed by a simple majority vote.
As to the superior courts conclusion in Nunapitchuk
that the act is unconstitutional because it unduly interferes
with access to the courts, the State argues that a facial
judgment was inappropriate and that the court should have awaited
a specific case to determine whether, as applied, access was
effectively denied. In support of this position and in response
to the courts conclusion that the act will chill future public
interest litigation, the State argues that the act does not
prohibit consideration of any circumstance relevant to a
determination of whether a Rule 82 fee should be reduced or not
assessed at all.
Nunapitchuk and the Unions take issue with each of the
States arguments.
C. Summary of Our Decision
We conclude that Rule 82 is a rule of practice and
procedure authorized under article IV, section 15, of the Alaska
Constitution. But we also conclude that the public interest
litigant exception is a rule of substantive law that can be
changed by the legislature without a two-thirds vote. We
conclude that HB 145 does not change Rule 82, but that courts
when considering the other equitable factors ground for varying
awards should be cognizant of the need to avoid using this ground
as a means to encourage public interest litigation in violation
of the policy underlying HB 145. We agree with the State that a
declaratory judgment striking down HB 145 on the ground that it
necessarily impedes access to the courts is inappropriate, and
that any such determination must be made on a case-by-case basis.
D. Rule 82 Is a Rule of Practice and Procedure.
Article IV, section 15 of the Alaska Constitution
authorizes this court to promulgate rules governing practice and
procedure in civil and criminal cases in all courts. The
legislature may change these rules, but only by a two-thirds vote
of each house.6 The constitution also commits the enactment of
all substantive law that is all law except rules of practice and
procedure7 to the legislature, acting by an affirmative vote of
the majority of each house.8 Thus, the constitution necessarily
requires distinguishing between procedural and substantive law.
The former is the province of the court, in the first instance,
and the latter is the province of the legislature. But the
distinction between procedural and substantive law, at the
margins, is by no means clear.
An early effort to distinguish between substance and
procedure was made by this court in Ware v. City of Anchorage.9
There the question was whether a statute, AS 09.60.060, requiring
nonresident plaintiffs to post security for costs and fees and
staying their actions until security was posted, was substantive
or procedural. We stated that as a general rule, substantive law
creates, defines and regulates rights, while procedural law
prescribes the method of enforcing the rights.10 We suggested
that the taxation of costs and attorneys fees was generally
procedural, but held that the statute in question went beyond
merely the computation and assessment of fees and costs and
created a new substantive right:
While it has been held in states where
rule making power is vested in the supreme
court that the definition and taxation of
court costs and attorneys fees are
procedural, we are nevertheless of the
opinion that the statute under consideration
is substantive law.[11]
. . . .
. . . [T]he act creates a new right in
the resident defendant and a new liability in
the nonresident plaintiff which are separate
and apart from, and go beyond, the procedure
of computing and assessing costs and
attorneys fees. These rights are
substantial, since it is possible for costs
and attorneys fees allowable under the Alaska
Rules of Civil Procedure to amount to many
thousands of dollars.[12]
In Channel Flying, Inc. v. Bernhardt13 this court
employed the Ware definition. At issue was AS 22.20.022,which
affords parties the right to peremptorily challenge a judge.14
The statute was challenged as procedural and therefore in
violation of the rule-making power of this court. We concluded
that the statute was substantive, stating:
This statute does not merely regulate
procedure. With or without it the particular
action in court takes the same course. The
statute rather creates and defines a right
the right to have a fair trial before an
unbiased and impartial judge. This is
something more than merely prescribing a
method of enforcing a right.[15]
More than a decade after Ware and Channel Flying, this
court in Nolan v. Sea Airmotive, Inc., revisited the substance
and procedure dichotomy.16 There the question was whether a
statute that prescribed when a wage and hour class action would
be deemed to be commenced was substantive or procedural.17 We
held that the statute was procedural and invalid because it
conflicted with Alaska Civil Rule 23 governing class actions.18
We began by describing three requirements that had to be met in
order to invalidate a statute as procedural. Courts must
conclude
first, that the statute indeed conflicts with
a rule promulgated by the court, Matanuska
Maid, Inc. v. State, 620 P.2d 182, 188
(Alaska 1980), second, that the main subject
of the statute is not substantive with only
an incidental effect on procedure,
Winegardner v. Greater Anchorage Area
Borough, 534 P.2d 541, 547 (Alaska 1975),
Channel Flying, Inc. v. Bernhardt, 451 P.2d
570, 576 (Alaska 1969), and finally, that the
legislature has not changed the rule with the
stated intention of doing so, Leege v.
Martin, 379 P.2d 447, 451 (Alaska 1963).
Civil Rule 93 reflects this scheme by
providing:
These rules are
promulgated pursuant to
constitutional authority
granting rule making
power to the supreme
court, and to the extent
that they are
inconsistent with any
procedural provisions of
any statute not enacted
for the specific purpose
of changing a rule, shall
supersede such statute to
the extent of such
inconsistency.[19]
We then turned to the definitions of the terms procedural and
substantive. After noting the Ware definition we stated:
But while this distinction claims venerable
origins, it has been recognized that the
definition falls far short of drawing an
unequivocal line. See Joiner & Miller,
[Rules of Practice and Procedure: A Study of
Judicial Rule Making, 55 Mich. L. Rev. 623,
635 (1957)]. Decisions on the method of
enforcing a right often affect substantive
rights, and the regulation of substantive
rights may have an impact upon judicial
procedure.
As a result, an important part of the
inquiry should be an examination of whether
the rule or statute under scrutiny is more
closely related to the concerns that led to
the establishment of judicial rule making
power, or to matters of public policy
properly within the sphere of elected
representatives. In Leege v. Martin, 379
P.2d 447, 450 (Alaska 1963), we noted the
reasons for placing in the judicial branch of
government, rather than in the legislature,
the initial and primary responsibility for
making rules of court practice and procedure.
We stated:
The administration
of justice is the day to
day business of the
courts; they are better
equipped than a
legislature to know the
most effective and
efficient methods of
conducting that business.
The field of judicial
procedure should not
remain static; there is
need for regular review
and revision of basic
rules to keep them
abreast of new trends and
applicable generally to
the substantive law as it
develops. The
legislative process does
not readily adapt itself
to that end. Unfamiliar
with court practice,
legislatures are not in a
position to recognize the
need for procedural
revision when it arises.
When the need is called
to their attention, they
lack the experience and
expertness necessary to
solve it. As a result,
necessary changes come
slowly, and judicial
procedure becomes
undesirably rigid.
Courts, however, are
primarily concerned with
providing the most
effective and efficient
system for carrying out
the administration of
justice. This concern,
and a close familiarity
with rules of practice
through daily use, puts
the courts in a position
to recognize immediately
the need for procedural
revision and to act
quickly in bringing it
about. Consequently, the
courts are better
equipped than the
legislature to review and
revise procedural rules.
Id.[20]
Using the Ware test, when we ask whether Rule 82
creates, defines and regulates rights or is a method of enforcing
the rights,21 no clear answer emerges. On the one hand, the rule
creates a right to partial attorneys fees, and the attorneys fees
awarded under the rule, as Ware recognized, can be quite
substantial in terms of value. On the other hand, the rule is
part of a method for enforcing rights external to court
proceedings that are vindicated by the judgment in favor of the
prevailing party. If fees were not allowed, the prevailing party
would suffer a loss in spite of its victory. A Rule 82 award of
partial fees mitigates this effect. The latter, it seems to us,
is the better view. We believe that the allocation of attorneys
fees under the rule is, to use Judge Weekss language, not so much
a right of itself but tends to be how rights are enforced.
Similarly, reference to Nolans addition to the Ware
test, requiring courts to focus on whether a statute or rule is
primarily concerned with public policy or an effective and
efficient system for the administration of justice, does not
yield an unarguably clear answer. On one hand, awarding fees as
a matter of course to the prevailing party is unique in the
American system of justice.22 This uniqueness could support an
argument that the rule is not intrinsic to the effective and
efficient conduct of judicial business, but is a matter of policy
extrinsic to that subject. On the other hand, Rule 82s primary
purpose is to partially compensate a prevailing party for
attorneys fees incurred in enforcing or defending the partys
rights, regardless of the nature of those rights.23 Without the
rule, the rights of the prevailing party would be less completely
vindicated because of the uncompensated expense of litigation.
In light of this purpose, the rule may be viewed as intrinsic to
an effective system for the administration of justice. Again, we
believe that the latter view is the better one. It correctly
reflects this courts purpose in promulgating, and continuing in
effect, Rule 82.24
The States main argument that Rule 82 is not procedural
is based on AS 09.60.010(a) and its antecedents.25 Alaska Statute
09.60.010 was originally enacted by the state legislature as part
of the Code of Civil Procedure in 1962.26 In its original form
this section provided: Except as otherwise provided by statute,
the Supreme Court of Alaska shall determine by rule or order what
costs, if any, including attorney fees, shall be allowed the
prevailing party in any case.27 Before Alaska was organized as a
territory, Congress authorized the courts of the District of
Alaska to award attorneys fees to prevailing parties as costs.28
This practice was continued during the territorial period and AS
09.60.010 replaced provisions of the territorial Code of Civil
Procedure that granted authority to the territorial courts to
award attorneys fees to prevailing parties as costs in an amount
to be fixed by the court.29
The State argues that this court derived its authority
to promulgate Rule 82 from AS 09.60.010 rather than from article
IV, section 15 of the constitution. Two cases lend some support
to this argument. In Crisp v. Kenai Peninsula Borough School
District this court stated that Rule 82 was established by this
court pursuant to a legislative delegation of authority found in
AS 09.60.010.30 In Stepanov v. Gavrilovich, decided a year later,
we observed that [t]he authority to make such [attorneys fees]
awards is derived from AS 09.60.010.31 But cases decided closer
to the onset of statehood indicate that our court rules
concerning attorneys fees are based on this courts constitutional
rule-making authority. Cases decided subsequent to Crisp and
Stepanov take the same view.
McDonough v. Lee, decided in 1966 by a court in which
two of the three justices had served on the court in 1959 when
Rule 82 was promulgated, contains the most thorough discussion of
the origin and authority of Rule 82.32 The issue in McDonough was
whether an attorneys fee award of approximately $32,000 on a
verdict of approximately $312,000 was an abuse of discretion.33
Although the amount of the award of fees was arrived at in
accordance with the Rule 82 schedule for calculating fees, the
appellant argued, among other things, that the award was an abuse
of discretion because only $32,000 of the principal amount of the
judgment, excluding attorneys fees, was covered by insurance.34
The standard liability insurance policy in effect at the time of
McDonough required insurance companies to pay all costs taxed
against the insured.35 Since Rule 82 attorneys fees were
considered costs, the appellants insurance company was facing a
liability for attorneys fees that was approximately the same as
its liability under the primary limits of the policy. The claim
in McDonough was rejected and the award of fees was upheld.36 In
reaching this conclusion, the McDonough court reviewed the long
history of awarding attorneys fees in Alaska, noting that until
the onset of statehood courts were permitted to award reasonable
fees to the prevailing party in each case, with the amount of the
award left to the discretion of the trial court:
The common law does not permit the
recovery of attorneys fees, as costs, from
the opposing party.1 Ordinarily such an item
of litigation expense was disallowed in the
absence of a statute or rule of court.
Statutory authorization for the allowance of
attorneys fees in this jurisdiction is of
relatively ancient origin.2 Our earliest
statute on this subject provided:
The measure and mode of
compensation of attorneys
shall be left to the
agreement, expressed or
implied, of the parties;
but there may be allowed
to the prevailing party
in the judgment certain
sums by way of indemnity
for his attorney fees in
maintaining the action or
defense thereto, which
allowances are termed
costs.3 (Emphasis
added.)
In Forno v. Coyle4 the Ninth Circuit had
occasion to construe a companion statute5 to
the attorneys fee statute just quoted. In
its opinion the court said:
By the act of 1923,
amending the act of
Congress, the Territorial
Legislature of Alaska
gave the courts the
express power to impose
reasonable attorneys
fees, and that what is
reasonable depends on the
circumstances of each
individual case.
_____________________________________________
____
1 LaFave v. Dimond, 46 Cal. 2d 868, 299 P.2d
858, 859, 60 A.L.R.2d 939 (1956); 20 Am. Jur.
2d Costs 72, at 58.
2 Act of Congress of June 6, 1900, 31 Stat.
415-418.
3 Statute cited note 2 supra. This statute
was subsequently codified in Carter Code,
Part IV, 509 (1900); 1341 CLA (1913); 4061
CLA (1933); and 55-11-51 ACLA (1949); see
also SLA 1923, ch. 38, 1 which amended 1345
CLA (1913) to read in part:
A party entitled to costs
shall also be allowed
. . . a reasonable
attorneys fee to be fixed
by the court.
This section of the code of civil procedure
was subsequently codified as 4065, 4066 CLA
(1933) and 55-11-55 ACLA (1949), which
together with 55-11-51 ACLA (1949) is now
the subject matter of Civ. R. 54(d) and Civ.
R. 82.
4 75 F.2d 692, 696 (9th Cir. 1935).
5 See 1345 CLA (1913) as amended SLA 1923,
Ch. 38, 1; subsequently 55-11-55.[37]
After this review, the McDonough court stated that with the
advent of statehood and the Alaska Court System, awards of
attorneys fees as costs were governed by the Rules of Civil
Procedure promulgated by the supreme court pursuant to its
constitutional rule-making authority.38
Since the attainment of statehood and
the activation of the Alaska Court System,
the award of attorneys fees as costs has been
governed by the Rules of Civil Procedure
which were promulgated by this court pursuant
to its constitutional rule making authority.6
Civil Rule 54(d) provides, in part with
respect to costs, that:
Except when express
provision therefor is
made either in a statute
of the state or in these
rules, costs shall be
allowed as of course to
the prevailing party
unless the court
otherwise directs.
Directly involved in this appeal is the
question of the proper application and
construction of Civ. R. 82(a) which
establishes the allowance of attorneys fees
to the prevailing party as costs.
_____________________________________________
___
6 Civil Rule 93 and AS 09.60.010 which
provides:
Except as otherwise
provided by statute, the
supreme court shall
determine by rule or
order what costs, if any,
including attorney fees,
shall be allowed the
prevailing party in any
case.[39]
Alaska Civil Rule 93, mentioned in McDonough, states the
authority under which the civil rules were promulgated. It
provides:
These rules are promulgated pursuant to
constitutional authority granting rule making
power to the supreme court, and to the extent
that they are inconsistent with any
procedural provisions of any statute not
enacted for the specific purpose of changing
a rule, shall supersede such statute to the
extent of such inconsistency.[40]
Both Rule 93 and Rule 82 were promulgated on October 9, 1959, as
part of the original Rules of Civil Procedure.41
In Ware, decided in 1968, we also indicated that Rule
82 was promulgated under this courts constitutional rule-making
authority.42 We stated that it has been held in states where rule
making power is vested in the supreme court that the definition
and taxation of court costs and attorneys fees are procedural
. . . .43 In support of this statement, and keyed to the word
procedural, we stated: See also, Alaska Civ. R. 82, which allows
and prescribes a formula for computing attorneys fees for the
prevailing party . . . .44 The quoted language and citation are
reasonably read as a statement that Rule 82 is procedural and was
promulgated under the power to make rules vested in this court by
the constitution.
In two cases decided after Crisp and Stepanov, this
court noted that the court rule governing attorneys fees on
appeal was promulgated under the authority conferred by article
IV, section 15. The cases are State, Department of Highways v.
Salzwedel45 and State v. Smith.46 Although these cases did not
involve Rule 82, they are significant because the statute that
the State argues is the source of authority for this court to
make rules concerning attorneys fees, AS 09.60.010, is not
limited to attorneys fees in the trial court, but would also
cover fees on appeal.
Based on this review of our case law, we believe that
the State, at most, has shown that there are conflicting
statements in our cases as to the authority for this court to
promulgate rules concerning attorneys fees. The most recent
cases indicate that the authority is constitutionally based, and
this coincides with earlier cases in which the justices who
promulgated the rules participated. We think their view is
entitled to considerable weight because they were in a position
to appreciate the basis on which they acted.
There are also other reasons supporting our conclusion
that Rule 82 was promulgated under this courts article IV,
section 15 powers rather than by delegation from AS 09.60.010.
The first is that Rule 82 was promulgated more than two years
before AS 09.60.010 was enacted. Of course, when Rule 82 was
promulgated the territorial statutes concerning attorneys fees
continued in effect under the Statehood Act until modified or
superseded.47 But the territorial statutes, unlike AS 09.60.010,
did not refer to determining attorneys fees by rule or by an
order of general application. When this court acted in 1959 to
promulgate Rule 82, it was not clear that there ever would be a
state statute such as AS 09.60.010.
Moreover, Rule 93 in itself indicates that the court
believed that no statutory delegation was needed. As already
indicated, this rule provides that all of the rules included in
the original civil rules were promulgated pursuant to
constitutional authority granting rule making power to the
supreme court.48
It is also important to note that the fact that in
territorial and pre-territorial days the practice of awarding
attorneys fees as costs was statutorily based says nothing about
whether such statutes were procedural or substantive. Congress,
and later the territorial legislature, had plenary authority over
matters of both substance and procedure. It was not until the
effective date of the Alaska Constitution granting rule-making
authority to this court that it became important to examine the
substance and procedure dichotomy for the purpose of determining
the authority of the judicial and legislative branches of state
government.
Finally, the 1959 courts apparent decision that rules
granting attorneys fees as costs were matters of procedure and
thus were within the constitutional authority of the court to
promulgate was a reasonable one. There was, and is, a general
consensus that costs are procedural.49 It follows that insofar as
attorneys fees are an element of costs, they are also procedural.
By 1959, the courts of the State of New Jersey, construing the
1947 New Jersey constitutional provision relating to rule-making
authority on which the Alaska Constitution was largely modeled50
had held that matters of costs and attorneys fees are procedural
and appropriately committed to court rule.51 Also reflecting the
view that costs, including attorneys fees as costs, should be
considered procedural is a lengthy and well-researched memorandum
of the Alaska Legislative Council of July 1, 1960, titled The
Coordination of Legislative Bill Drafting and Statutory Revision
with Judicial Rule-Making in Alaska.52
In summary on this point, Rule 82 is a rule of
procedure because it more readily falls on the procedure side of
the substance and procedure divide under the definitions
established by the precedents of this court. Further, while
statements in our case law as to the authority under which the
court promulgated the attorneys fees rules are not necessarily
consistent, we find that the statements attributing the rules to
our constitutional rule-making authority are persuasive for the
reasons we have just indicated.
E. The Public Interest Exception Is Substantive Law.
Attorneys fees awarded under Rule 82, like costs
generally, run in favor of the prevailing party regardless of
whether the prevailing party is the plaintiff or the defendant.
Commentators refer to this type of system as two-way fee-
shifting.53 Rule 82, like other costs, is policy-neutral in the
sense that prevailing parties are awarded partial fees regardless
of the subject matter of their action or defense. The two-way
and policy-neutral features of Rule 82 contribute in an important
way to the rules procedural character.
By contrast, there are numerous fee-shifting provisions
intertwined with substantive statutes that call for attorneys fee
awards in particular cases.54 Such provisions are not policy-
neutral. They are usually designed to encourage suits that, in
the judgment of the legislature, will further public policy
goals.55 Further, they typically shift fees in only one direction
to the prevailing plaintiff.56 Alaska has numerous fee-shifting
provisions that are intertwined with statutes.57 We have
interpreted such provisions to call for the award of actual
reasonable fees, in contrast to the partial reasonable standard
employed in Rule 82 cases.58
Intertwined attorneys fee provisions are substantive in
character.59 In cases where they apply, such provisions govern
the award of fees rather than Rule 82.60 Rule 82 itself
recognizes this, for it applies [e]xcept as otherwise provided by
law.61 Rule 82 thus contemplates that fee-shifting provisions
imposed by statutes should be followed, rather than the system
encompassed by the procedural rule.62
The public interest litigant exception to Rule 82
resembles in its purpose and operation typical intertwined fee-
shifting provisions. The exception is intended to encourage
litigation that will further public policies. Operating
affirmatively, it functions as a one-way fee-shifting system in
favor of claimants, shifting full rather than partial fees.
Operating protectively, the public interest exception shields
losing public interest litigants from adverse awards of fees.63
The protective aspect of the public interest exception also
mirrors intertwined one-way fee-shifting provisions. We have
interpreted several of the latter as barring attorneys fee awards
against losing litigants whom the particular fee-shifting statute
is designed to benefit.64
Like intertwined fee-shifting provisions, we believe
that the public interest litigant exception is a doctrine of
substantive law. It is, to use the Nolan language, closely
related to . . . matters of public policy properly within the
sphere of elected representatives.65 As such, the exception is
within the power of the court to develop in the process of the
adjudication of cases. But, like other doctrines that are case
law based, it is subject to legislative control.66 The purpose of
section 2 of HB 145 is to expressly overrule the decisions of
this court establishing the public interest litigant exception.67
We conclude that this purpose falls within the legislatures
authority. HB 145 therefore is valid insofar as it abrogates the
public interest litigant exception developed by the decisions of
this court.
A potentially more difficult question is whether HB 145
could validly change provisions of Rule 82 either as written or
as interpreted. Of particular concern to Judge Collins were
subsections (b)(3)(I) and (b)(3)(K) of the rule.68 She was
concerned that subsection 2(b) of the act, codified as AS
09.60.010(b), would interfere with a normal interpretation of
these subsections.69
On appeal the State takes the position that, although
HB 145 changes the public interest litigant exception, it does
not modify Rule 82. Thus, the State argues in reply to the
Unions brief: The unions first argue that HB 145 conflicts with
a rule and point to Civil Rule 82(b)(3)(I)-(K). The state
concurs that HB 145 conflicts with a rule, in the broad sense of
the word, although that rule is the common law public interest
litigant policy, not Civil Rule 82. The State makes the same
point again in the paragraph that follows this statement: HB 145
does not modify Rules 82 or 508, but rather a common law doctrine
that limited where those rules would be applied. The State
concludes by observing: Finally, in making this argument the
unions give no example of a single procedure that is modified by
HB 145 and, indeed, there is none.
The States position that the prohibition of HB 145
should be read so that it modifies the public interest litigant
exception but does not change Rule 82 is supported by the
prefatory language of HB 145. Subsections (a) and (b) of section
1 express the legislatures judgment that it is [t]he judicially
created doctrine respecting the award of attorney fees and costs
for or against public interest litigants that has created
imbalance and inequality.70 The solution for these ills expressed
in section 2 is to expressly overrule the decisions that comprise
this judicially created doctrine.71 The States position is also
supported by the rule of construction that statutes should be
construed, if possible, to avoid the risk of unconstitutionality.72
Because it amounts to a binding concession made by a party
litigant and is reasonable in light of the foregoing
considerations, we accept the States position that HB 145 should
be interpreted as not modifying Rule 82.
But we are of the view that the policy judgment
implicit in HB 145 should influence the interpretation of Rule 82
in one respect. We have already concluded that basing an award
of attorneys fees on the public policy nature of litigation is an
application of substantive law. In light of this conclusion and
the policy underlying HB 145, we believe that a limiting
interpretation should be given Rule 82(b)(3)(K) relating to the
use of other equitable factors to vary a fee award.
Specifically, although we recognize that subsection (b)(3)(K)
gives courts discretion to consider a broad range of equitable
factors in awarding fees, we believe that courts must take care
to avoid using this equitable power as an indirect means of
accomplishing what HB 145 has now disallowed using awards of
attorneys fees to encourage litigation of claims that can be
characterized as involving the public interest. Observing this
limitation should result in a workable reconciliation of the
substantive law objectives of HB 145 with the language and
purpose of Rule 82.
F. HB 145 Is Not Invalid on Its Face.
In Nunapitchuk Judge Collins held that HB 145 was
facially invalid because the bills provisions precluding the
courts from considering equitable factors in the award of
attorneys fees impermissibly impede access to the courts in
violation of the due process and equal protection clauses of the
Alaska Constitution. We address this conclusion in the
paragraphs that follow.
Statutes may be unconstitutional either facially or as
applied.73 A statute is said to be facially unconstitutional if
no set of circumstances exist under which the Act would be valid.74
Our cases have recognized that the due process clause
of the Alaska Constitution guarantees the right of access to
Alaskas courts.75 The right, though not fundamental, is
recognized as important.76
Although we have never held that the possibility that a
litigant could be assessed attorneys fees under Rule 82 is a
denial of the right to access, we acknowledged that this might
occur if fees were too high in Malvo v. J.C. Penney Co.77 In
Bozarth v. Atlantic Richfield Oil Co., fees of $76,000 fifty
percent of the prevailing partys total fees were awarded against
an employee after summary judgment was entered against him on his
unsuccessful wrongful discharge claim.78 Two dissenting justices
were of the view that attorneys fees this high could interfere
with the right to access the civil courts.79 They stated that in
determining a reasonable fee, trial courts must consider whether
the award is so great that it imposes an intolerable burden on a
losing litigant which, in effect, denies the litigants right of
access to the courts.80 Subsequently, Rule 82 was amended so that
the norm in cases decided without trial is twenty percent of
actual attorneys fees.81 This change would obviously limit the
potential access-impeding effect of court-awarded fees, as in
Bozarth, by making fees smaller. Further, added to the rule were
specific factors that courts should consider in order to
determine whether a variation from the norm is warranted.82 The
factor expressed in subsection (b)(3)(I) is directly relevant to
the issue of the right of access to the courts.83
As already indicated, the State has acknowledged that
HB 145 does not modify Rule 82. The act therefore makes no
change to subsection (b)(3)(I).84 This subsection continues to
apply to all cases, without discriminating between those brought
for self-interested reasons and those intended to effectuate
public policies. Trial courts remain free to reduce awards that
would otherwise be so onerous to the losing party as to deter
similarly situated litigants including litigants that would have
previously been identified as public interest litigants from
accessing the courts. In determining whether an award would
deter similarly situated litigants from accessing the courts,
trial courts may continue to consider all relevant factors,
including the nature of the claim advanced and the economic
incentives for similarly situated litigants to bring similar
claims. Thus, although HB 145 abrogates, in part, the public
interest litigant exception, litigants advancing public interest
claims may still, on a case- by-case basis, be shielded from
awards of attorneys fees under Rule 82(b)(3)(I) for much the same
reason that we accepted when we first adopted the exception in
its original protective form: awarding fees in public interest
cases may deter citizens from litigating questions of general
public concern.85 As so construed, it is not possible to conclude
that the act is facially invalid on denial of access to the
courts grounds.
IV. CONCLUSION
For the reasons stated:
(1) The judgment of the superior court in Nunapitchuk
is REVERSED and the case is REMANDED to the superior court for
further proceedings in accordance with this opinion;
(2) The award of attorneys fees in Alaska AFL-CIO is
VACATED and the case REMANDED to the superior court for further
proceedings.
_______________________________
1 Ch. 86, SLA 2003. Since the parties refer to this act
as HB 145, we will do so as well. The act provides:
AN ACT prohibiting discrimination in the
awarding of attorney fees and costs in civil
actions or appeals to or against, or in the
posting of bonds or other security by, public
interest litigants; and relating to awards of
attorney fees and costs in cases involving
enforcement of constitutional rights.
* Section 1. The uncodified law of the
State of Alaska is amended by adding a new
section to read: PURPOSE. (a) The
judicially created doctrine respecting the
award of attorney fees and costs for or
against public interest litigants has created
an unbalanced set of incentives for parties
litigating issues that fall under the public
interest litigant exception. This imbalance
has led to increased litigation, arguments
made with little merit, difficulties in
compromising claims, and significant costs to
the state and private citizens. More
importantly, application of the public
interest litigant exception has resulted in
unequal access to the courts and unequal
positions in litigation. (b) The purpose of
sec. 2 of this Act to provide for a more
equal footing for parties in civil actions
and appeals by abrogating the special status
given to public interest litigants with
respect to the award of attorney fees and
costs. It is the intent of the legislature
to expressly overrule the decisions of the
Alaska Supreme Court in Dansereau v. Ulmer,
955 P.2d 916 (Alaska 1998); Southeast Alaska
Conservation Council, Inc. v. State, 665 P.2d
544 (Alaska 1983); Thomas v. Bailey, 611 P.2d
536 (Alaska 1980); Anchorage v. McCabe, 568
P.2d 986 (Alaska 1977); Gilbert v. State, 526
P.2d 1131 (Alaska 1974), and their progeny,
insofar as they relate to the award of
attorney fees and costs to or against public
interest litigants in future civil actions
and appeals. (c) This Act does not preclude
the enactment of specific statutes
authorizing awards of costs or fees in
particular situations, such as in AS
45.50.537. * Sec. 2. AS 09.60.010 is amended
by adding new subsections to read: (b) Except
as otherwise provided by statute, a court in
this state may not discriminate in the award
of attorney fees and costs to or against a
party in a civil action or appeal based on
the nature of the policy or interest
advocated by the party, the number of persons
affected by the outcome of the case, whether
a governmental entity could be expected to
bring or participate in the case, the extent
of the partys economic incentive to bring the
case, or any combination of these factors.
(c) In a civil action or appeal concerning
the establishment, protection, or enforcement
of a right under the United States
Constitution or the Constitution of the State
of Alaska, the court (1) shall award,
subject to (d) and (e) of this section, full
reasonable attorney fees and costs to a
claimant, who, as plaintiff, counterclaimant,
cross claimant, or third-party plaintiff in
the action or on appeal, has prevailed in
asserting the right; (2) may not order a
claimant to pay the attorney fees of the
opposing party devoted to claims concerning
constitutional rights if the claimant as
plaintiff, counterclaimant, cross claimant,
or third-party plaintiff in the action or
appeal did not prevail in asserting the
right, the action or appeal asserting the
right was not frivolous, and the claimant did
not have sufficient economic incentive to
bring the action or appeal regardless of the
constitutional claims involved. (d)
In calculating an award of attorney fees and
costs under (c)(1) of this section, (1)
the court shall include in the award only
that portion of the services of claimants
attorney fees and associated costs that were
devoted to claims concerning rights under the
United States Constitution or the
Constitution of the State of Alaska upon
which the claimant ultimately prevailed; and
(2) the court shall make an award only if
the claimant did not have sufficient economic
incentive to bring the suit, regardless of
the constitutional claims involved. (e)
The court, in its discretion, may abate, in
full or in part, an award of attorney fees
and costs otherwise payable under (c) and (d)
of this section if the court finds, based
upon sworn affidavits or testimony, that the
full imposition of the award would inflict a
substantial and undue hardship upon the party
ordered to pay the fees and costs or, if the
party is a public entity, upon the taxpaying
constituents of the public entity. * Sec. 3.
AS 09.68.040 is amended by adding a new
subsection to read: (c) A court in this state
may not excuse a litigant requesting the
entry of a stay or other interlocutory relief
from posting a bond or other security to
protect the persons who will be adversely
affected if the excuse is based on the nature
of the policy or interest advocated by the
party, the number of persons affected by the
outcome of the case, whether a governmental
entity could be expected to bring or
participate in the case, the extent of the
partys economic incentive to bring the case,
or any combination of these factors. * Sec.
4. The uncodified law of the State of Alaska
is amended by adding a new section to read:
APPLICABILITY. This Act applies to all civil
actions and appeals filed on or after the
effective date of this Act.
2 The public interest litigant exception operates both
affirmatively and protectively: affirmatively, in that when a
public interest litigant prevails it is entitled to an award of
full attorneys fees, Anchorage v. McCabe, 568 P.2d 986 (Alaska
1977), and protectively, in that when a public interest litigant
is on the losing side of litigation no attorneys fees may be
assessed against it. Gilbert v. State, 526 P.2d 1131 (Alaska
1974).
3 Rule 82 provides that partial attorneys fees shall be
awarded to prevailing parties as a matter of course. Awards are
a percentage of actual fees or, if there is a money judgment, a
percentage of the judgment, subject to variation at the
discretion of the trial court based on consideration of specified
factors. Rule 82 provides in relevant part:
(a) Allowance to Prevailing Party.
Except as otherwise provided by law or agreed
to by the parties, the prevailing party in a
civil case shall be awarded attorneys fees
calculated under this rule. (b) Amount of
Award. (1) The court shall adhere to the
following schedule in fixing the award of
attorneys fees to a party recovering a money
judgment in a case:* * * (2) In cases in
which the prevailing party recovers no money
judgment, the court shall award the
prevailing party in a case which goes to
trial 30 percent of the prevailing partys
reasonable actual attorneys fees which were
necessarily incurred, and shall award the
prevailing party in a case resolved without
trial 20 percent of its actual attorneys fees
which were necessarily incurred. The actual
fees shall include fees for legal work
customarily performed by an attorney but
which was delegated to and performed by an
investigator, paralegal or law clerk. (3)
The court may vary an attorneys fee award
calculated under subparagraph (b)(1) or (2)
of this rule if, upon consideration of the
factors listed below, the court determines a
variation is warranted: (A) the complexity
of the litigation; (B) the length of trial;
(C) the reasonableness of the attorneys
hourly rates and the number of hours
expended; (D) the reasonableness of the
number of attorneys used; (E) the
attorneys efforts to minimize fees; (F)
the reasonableness of the claims and defenses
pursued by each side; (G) vexatious or bad
faith conduct; (H) the relationship between
the amount of work performed and the
significance of the matters at stake; (I)
the extent to which a given fee award may be
so onerous to the non-prevailing party that
it would deter similarly situated litigants
from the voluntary use of the courts; (J)
the extent to which the fees incurred by the
prevailing party suggest that they had been
influenced by considerations apart from the
case at bar, such as a desire to discourage
claims by others against the prevailing party
or its insurer; and (K) other equitable
factors deemed relevant.If the court varies
an award, the court shall explain the reasons
for the variation.
4 We refer to the appellants in both cases as the State.
5 The superior court opinion has been edited to conform
with the formal standards of this court.
6 And only if the particular enactment states that its
purpose is to change a court rule. Leege v. Martin, 379 P.2d
447, 451 (Alaska 1963).
7 Excepted as well are rules governing the administration
of all courts. Under article IV, section 15 of the constitution,
the supreme court also has the responsibility to promulgate rules
concerning the administration of the courts.
8 Alaska Const. art. II, 14.
9 439 P.2d 793 (Alaska 1968).
10 Id. at 794.
11 Id. (footnotes omitted).
12 Id. at 795.
13 451 P.2d 570 (Alaska 1969).
14 Id. at 575.
15 Id. at 576 (footnotes omitted).
16 627 P.2d 1035, 1042 (Alaska 1981).
17 Id. at 1042.
18 Id. at 1047.
19 Id. at 1040.
20 Id. at 1042-43 (emphasis added & footnotes omitted).
21 Ware, 439 P.2d at 794.
22 Alaska Judicial Council, Alaskas English Rule:
Attorneys Fee Shifting in Civil Cases 7-28 (1995).
23 Preferred Gen. Agency of Alaska, Inc. v. Raffetto, 391
P.2d 951, 954 (Alaska 1964).
24 This court, acting in conjunction with the standing
committee on civil rules, has responded promptly and often to the
need to revise Rule 82. Thirteen revisions have been made since
the rules original promulgation in 1959. These revisions
demonstrate the merit of Nolans statement concerning the courts
ability to recognize and respond to the need for rule revisions.
25 AS 09.60.010(a) currently provides:
The supreme court shall determine by
rule or order the costs, if any, that may be
allowed a prevailing party in a civil action.
Unless specifically authorized by statute or
by agreement between the parties, attorney
fees may not be awarded to a party in a civil
action for personal injury, death, or
property damage related to or arising out of
fault, as defined in AS 09.17.900, unless the
civil action is contested without trial, or
fully contested as determined by the court.
26 Ch. 101, 5.14, SLA 1962.
27 Former AS 09.60.010 (1962).
28 The act provided:
The measure and mode of compensation of
attorneys shall be left to the agreement,
express or implied, of the parties; but there
may be allowed to the prevailing party in the
judgment certain sums by way of indemnity for
his attorney fees in maintaining the action
or defense thereto, which allowances are
termed costs.
Act of Congress of June 6, 1900, ch. 786, 31 Stat. 321, 415-418
(compiled in the Carter Code as a part of the Code of Civil
Procedure, 509, part IV, Carters Annotated Alaska Code (CAAC)
(1900)). This provision was taken verbatim from the Code of
Civil Procedure and Other General Statutes of Oregon Ch. VI,
Title V, sec. 538 (1863). The Oregon statute was rooted in the
Field Codes, originally developed for New York but widely adopted
elsewhere. It seems that Alaska law developed differently from
that of Oregon and the other Field Code states because the act
passed by Congress for the District of Alaska left the amount of
the award of attorneys fees to the courts, whereas in Field Code
states the legislatures set allowable fees, usually in small
amounts. See Alaskas English Rule, supra note 22 at 11-13, 30-
33, especially notes 145 and 149.
29 The territorial statutes in effect immediately prior to
statehood were 55-11-51 Alaska Complied Laws Annotated (ACLA)
(1949) (there may be allowed to the prevailing party in the
judgment certain sums by way of indemnity for his attorney fees
in maintaining the action or defense thereto, which allowances
are termed costs) and 55-11-55 ACLA (1949) (A party entitled to
costs shall also be allowed . . . a reasonable attorneys fee to
be fixed by the court.).
30 587 P.2d 1168, 1169 n.5 (Alaska 1978), overruled on
other grounds by Rosen v. State Bd. of Pub. Accountancy, 689 P.2d
478, 482 (Alaska 1984).
31 594 P.2d 30, 37 (1979).
32 420 P.2d 459 (Alaska 1966).
33 Id. at 460.
34 Id. at 464.
35 See Liberty Natl Ins. Co. v. Eberhart, 398 P.2d 997,
999 (Alaska 1965) (discussed in McDonough, 420 P.2d at 463 & 465
n.22).
36 McDonough, 420 P.2d at 465.
37 Id. at 460-61.
38 Id. at 461 (emphasis added).
39 Id.
40 Alaska R. Civ. P. 93.
41 Alaska Supreme Court Order No. 5 (October 9, 1959).
42 439 P.2d at 794.
43 Id.
44 Id. at 794 n.6.
45 596 P.2d 17, 19 (Alaska 1979).
46 593 P.2d 625, 630 (Alaska 1979). Despite its earlier
placement in the Pacific Reporter, Smith was decided three weeks
after Stepanov.
47 Alaska Statehood Act, Pub. L. No. 85-508, 8(d), 72
Stat. 339, 344-45 (1958); see In re Mackay, 416 P.2d 823, 836-37
(Alaska 1964), on rehearing, 416 P.2d at 835 (Alaska 1965)
(territorial statute concerning organized bar superseded by this
courts exercise of its inherent authority).
48 Alaska R. Civ. P. 93. Over time, some of the civil
rules have been amended by the legislature in accordance with
article IV, section 15. One rule, Alaska Civil Rule 90.3,
relating to child support payments, was adopted by this court in
1987 under this courts interpretative authority pursuant to
article IV, section 1 of the Alaska Constitution. As the use-
note to this rule states: [I]t may be superseded by legislation
even if the legislation does not meet the procedural requirements
for changing rules promulgated under article IV, section 15.
Apart from Rule 90.3 and the rules that have been legislatively
amended, the statement expressed in Rule 93 that the civil rules
are promulgated under this courts constitutional rule-making
authority is, at least as a matter of intention, correct.
49 See, e.g., Carter v. General Motors Corp., 983 F.2d 40,
43-44 (5th Cir. 1993) (concluding that Texas statute governing
costs was procedural and federal rules displaced that statute to
extent it might limit the district courts discretion to award
costs); Chaparral Res., Inc. v. Monsanto Co., 849 F.2d 1286, 1292
(10th Cir. 1988) (stating that federal procedural law governs the
taxation of costs); In re Merrill Lynch Relocation Mgmt., Inc.,
812 F.2d 1116, 1120 n.2 (9th Cir. 1987) (determining that Oregon
statute placing liability for costs on the attorney is
substantive, but noting that [a]s a general proposition, the
award of costs is governed by federal law under Rule 54(d)); Kivi
v. Nationwide Mut. Ins. Co., 695 F.2d 1285, 1289 (11th Cir. 1983)
(concluding that the entitlement to expert witness fees as costs
under the Florida Statutes is not a substantive right); Brown v.
Consol. Fisheries Co., 18 F.R.D. 433, 434-35 (D. Del. 1955)
(describing the itemization of costs or the subsequent
determination of what costs should be allowed as a ministerial
task lacking in substantive quality); Behr v. Baker, 241 N.W.
249, 230 (Mich. 1932) (concluding that the definition and
taxation of court costs are procedural).
50 1 Proceedings of the Alaska Constitutional Convention
715-16 (December 12, 1955).
51 State v. Otis Elevator Co., 95 A.2d 715, 717 (N.J.
1953):
From the outset in New Jersey, following
English precedents, the allowance of costs
and counsel fees had been uniformly
considered by the courts of this State to be
a matter of procedure rather than of
substantive law. In accordance with this
uniformly accepted view the Supreme Court, in
the exercise of the rule-making power over
practice and procedure granted it by article
VI, section II, paragraph 3 of the
Constitution of 1947, promulgated Rule 3:54-7
relating to counsel fees . . . .
(Citations omitted.) There is also contrary authority. See
Philco Corp. v. F & B Mfg. Co., 86 F. Supp. 81, 84 (N.D. Ill.
1949).
52 The memorandum states in relevant part:
Taxation of costs. There seems to be
general agreement that how costs should be
taxed is a matter of procedure. Although
Joiner and Miller suggest that certain costs
are matters of substance, it also seems most
desirable as suggested by Levin and
Amsterdam, to include the determination of
the amount of costs as procedural also. This
is a subject which is a part of the
processing of the litigation and with which
the court is very familiar. Moreover, the
subject is one that does need continuous
review and adjustment. It is also connected
and complements the courts discretion in
determining how costs should be taxed.
Under the present rules of the court in
Alaska, the taxation of costs is considered a
matter of procedure. Provision is made in
the rules for the prevailing party to be
allowed costs, unless express provision is
made otherwise by specific rule or by
statute. In addition, the manner of
preparing the cost bill, the items to be
allowed, notice to the parties and review is
provided. The allowance of attorneys fees as
costs to the prevailing party is also
covered. But a conflict has arisen since
this general subject matter is presently also
covered in the Alaska statutes. To avoid
uncertainty, it is thought desirable in the
present revision program to extract from the
statutes all matters pertaining to the
taxation of costs and that additional court
rules to supplement the present rules
regarding the taxation of costs be
promulgated by the court where necessary.
(Footnotes omitted.)
53 Alaskas English Rule, supra note 22, at 14-15.
54 See id. at 14-15, 49.
55 Id. at 14.
56 Id.
57 See, e.g., AS 09.38.095(a) (violations of exemption
act); AS 09.60.070 (civil actions by victims of violent crimes);
AS 23.10.110(c) (wage and hour claims); AS 23.20.470(a) (appeals
by unemployment compensation claimants); AS 25.30.500(a) (actions
arising under Uniform Child Custody Jurisdiction & Enforcement
Act a two-way fee-shifting provision); AS 34.03.300 (actions
arising out of the Uniform Residential Landlord & Tenant Act a
two-way provision awarding fees to the prevailing party); AS
46.03.763 (state actions to impose penalties for discharge of
oil).
58 Bobich v. Stewart, 843 P.2d 1232, 1238 n.9 (Alaska
1992) (interpreting one-way fee-shifting provision of the Alaska
Wage and Hour Act contained in AS 23.10.110(c) to require an
award of full reasonable fees to the prevailing plaintiff and
recognizing that the objective of such an award is to encourage
employees to press wage-and-hour claims); Rosson v. Boyd, 727
P.2d 765, 767 (Alaska 1986) (purpose of one-way fee-shifting
provision contained in AS 34.35.005(b) relating to mechanics
liens is to enable claimants to recover judgments that would
otherwise be too small to justify the expense of a lawsuit and an
appeal); see also Vazquez v. Campbell, 146 P.3d 1 (Alaska 2006).
59 See Grimes v. Kinney Shoe Corp., 938 P.2d 997, 1002
(Alaska 1997) (intertwined cost provision in state statute part
of the substantive remedy).
60 See cases cited supra note 58. See also Ferdinand v.
City of Fairbanks, 599 P.2d 122, 125 (Alaska 1979) (federal civil
rights actions in state court are governed by 42 U.S.C. 1988
rather than Civil Rule 82):
The purpose of Rule 82 is to partially
compensate a prevailing party for the
expenses incurred in winning his case. It is
not intended as a vehicle for accomplishing
anything other than providing compensation
where it is justified. In comparison, the
explicit purpose of the fee shifting
provision in the federal statute, 42 U.S.C.
1988, is to encourage meritorious claims
which might not otherwise be brought.
Still v. Cunningham, 94 P.3d 1104, 1116-17 (Alaska 2004)
(provision of the Equal Credit Opportunity Act, 15 U.S.C.
1691e(d), rather than Rule 82 governed award of fees where a
violation of the federal act was established as an affirmative
defense); Hayer v. Natl Bank of Alaska, 619 P.2d 474, 476 (Alaska
1980) (award of fees under the Federal Truth and Lending Act, 15
U.S.C. 1640(a)(3), should have been made in favor of debtors who
established a violation of the act and were entitled to a partial
set-off).
61 Alaska R. Civ. P. 82(a).
62 See, e.g., Vazquez, 146 P.3d at 2 n.4 ( Civil Rule
82(a) itself provides that statutory attorneys fees are to be
awarded in preference to those prescribed under the rule
. . . .).
63 Gilbert v. State, 526 P.2d 1131 (Alaska 1974). The
protective function of the public interest exception, like the
affirmative function, is designed to encourage the pursuit of
public interest litigation. As we stated in Anchorage v. McCabe,
568 P.2d 986, 990 (Alaska 1977): The Gilbert public interest
exception to Rule 82 is designed to encourage plaintiffs to bring
issues of public interest to the courts.
64 Grimes v. Kenney Shoe Corp., 938 P.2d 997, 1001 (Alaska
1997) (prevailing defendant in wage and hour action not entitled
to an award of attorneys fees under former one-way wage and hour
statute or under Civil Rule 82); Whaley v. Alaska Workers
Compensation Bd., 648 P.2d 955, 960 (Alaska 1982) (award of
attorneys fees against injured employee in workers compensation
appeal improper absent a showing that the appeal was frivolous,
unreasonable, or brought in bad faith); see DeNardo v.
Municipality of Anchorage, 775 P.2d 515, 518 (Alaska 1989) (no
award of Rule 82 attorneys fees may be made against losing
federal civil rights plaintiff under one-way fee-shifting
provisions of 42 U.S.C. 1988 unless suit is frivolous,
unreasonable or without foundation).
65 Nolan v. Sea Airmotive, Inc., 627 P.2d 1035, 1042-43
(Alaska 1981).
66 As the State puts it: This is not to say that the
courts cannot create such claims [to full attorneys fees under
the public interest litigant exception] as part of the common law
process; it does mean, however, that their creation or abolition
is a substantive matter, and the legislature may therefore act
without a supermajority.
67 See HB 145 1(b), supra note 1.
68 These subsections provide:
(3) The court may vary an attorneys fee
award calculated under subparagraph (b)(1) or
(2) of this rule if, upon consideration of
the factors listed below, the court
determines a variation is warranted:
. . . . (I) the extent to which a given fee
award may be so onerous to the non-prevailing
party that it would deter similarly situated
litigants from the voluntary use of the
courts; . . . . (K) other equitable
factors deemed relevant.
69 Subsection 2(b) provides:
Except as otherwise provided by statute,
a court in this state may not discriminate in
the award of attorney fees and costs to or
against a party in a civil action or appeal
based on the nature of the policy or interest
advocated by the party, the number of persons
affected by the outcome of the case, whether
a governmental entity could be expected to
bring or participate in the case, the extent
of the partys economic incentive to bring the
case, or any combination of these factors.
70 HB 145 1(a), supra note 1.
71 Id. at 1(b).
72 State v. Blank, 90 P.3d 156, 162 (Alaska 2004) (This
court will narrowly construe statutes in order to avoid
constitutional infirmity where that can be done without doing
violence to the legislatures intent.).
73 Javed v. Dept of Pub. Safety, Div. of Motor Vehicles,
921 P.2d 620, 625 (Alaska 1996).
74 Id. (quoting United States v. Salerno, 481 U.S. 739,
745 (1987)).
75 Varilek v. City of Houston, 104 P.3d 849, 855 (Alaska
2004) (boroughs imposition of $200 administrative filing fee not
facially invalid, but invalid if hampers access to court for
indigent unable to pay the fee); Bush v. Reid, 516 P.2d 1215,
1220 (Alaska 1973) (statute barring felons on parole from filing
civil suits facially invalid).
76 Claimed infringements of the right of access that
allegedly violate equal protection are thus deserving of close
scrutiny. Patrick v. Lynden Transp., Inc., 765 P.2d 1375, 1379
(Alaska 1988).
77 512 P.2d 575, 587-88 (Alaska 1973).
78 833 P.2d 2, 3 (Alaska 1992).
79 Id. at 5-7 (3-2 decision) (Matthews, J., dissenting)
(Compton, J., concurring in the dissent).
80 Id. at 6.
81 Alaska Supreme Court Order No. 1118 (January 7, 1993).
82 See id.
83 See supra note 68.
84 Concerning subsection (b)(3)(I) the State acknowledges
that even the nature of the claim may be considered:
Rule 82(b)(3)(I) does not invite courts to
discriminate between parties based on the
type of claim they are advancing. Rather, it
seeks to determine whether other parties in a
similar situation (taking into account,
presumably, the parties wealth, the financial
incentives built into the claim, and so on)
could be deterred from using the courts by
potential Rule 82 liability. Certainly, the
nature of the claim advanced is a fact that
will often go into the mix to determine what
kinds of parties could be similarly situated.
Read fairly, HB 145 does not prohibit
consideration of the range of factual
circumstances that go into a Rule 82(b)(3)(I)
determination. All it does is prevent a
court from making the nature of the claim a
freestanding basis for discrimination in fee
matters, except as provided by statute.
85 Gilbert v. State, 526 P.2d 1131, 1136 (Alaska 1974).
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