Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
®, the DeskTop In-and-Out Board makes your office run smoother.

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Native Village of Nunapitchuk (4/20/2007) sp-6118

State v. Native Village of Nunapitchuk (4/20/2007) sp-6118, 156 P3d 389

          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).

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC