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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Petitioners for the Dissolution of the City of Skagway and Incorporation of a Skagway Borough v. Local Boundary Commission (07/03/2008) sp-6281
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
| PETITIONERS FOR THE | ) |
| DISSOLUTION OF THE CITY OF | ) Supreme Court No. S- 12376 |
| SKAGWAY AND INCORPORATION | ) |
| OF A SKAGWAY BOROUGH, | ) Superior Court No. 1JU-02- 1024 CI |
| ) | |
| Appellant, | ) O P I N I O N |
| ) | |
| v. | ) No. 6281 July 3, 2008 |
| ) | |
| LOCAL BOUNDARY COMMISSION, | ) |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the
Superior Court of the State of Alaska, First
Judicial District, Juneau, Patricia A.
Collins, Judge.
Appearances: Robert P. Blasco, Robertson,
Monagle & Eastaugh, Juneau, for Appellant.
Michael G. Mitchell, Assistant Attorney
General, Anchorage, Talis J. Colberg,
Attorney General, Juneau, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices.
MATTHEWS, Justice.
I. INTRODUCTION
Petitioners appeal the superior courts ruling that they
do not qualify as public interest litigants and thus cannot
invoke an exception to the attorneys fee schedule set forth in
Alaska Civil Rule 82. The exception does not apply if the suit
was or could have been brought by a public entity. Here, the
City of Skagway could have brought and, through Petitioners,
evidently did bring the suit at issue. We thus affirm that the
public interest litigant exception is not available to
Petitioners, and Rule 82 applies.
II. FACTS AND PROCEEDINGS
In 2001 Petitioners for the Dissolution of the City of
Skagway and the Incorporation of a Skagway Borough (Petitioners)
filed a petition with the Local Boundary Commission to dissolve
the City of Skagway and form the Borough of Skagway. The
Commission denied the petition. Petitioners appealed the
Commissions decision in the superior court alleging that the
Commission had improperly adopted and imposed a new legal
requirement in violation of due process and the Administrative
Procedure Act (APA). The court ruled in favor of Petitioners and
remanded the matter to the Commission.1
In September 2005 Petitioners filed a motion for
attorneys fees in which they made a prevailing party claim for
all fees incurred in the appeal. The Commission opposed the
motion; it conceded that Petitioners were the prevailing party
but argued that they were entitled only to an award of partial
attorneys fees under Civil Rule 82. (Emphasis in original.)
Petitioners replied, asserting that, as public interest
litigants, they were entitled to an award of full reasonable
attorneys fees. The Commission moved for and was granted leave
to submit additional briefing on the issue of Petitioners status
as public interest litigants. In its supplemental brief, the
Commission disputed that Petitioners were public interest
litigants, because, it asserted, it was the City of Skagway
[that] bankrolled the action, directed it, and is the real
litigant here.
The superior court held oral argument and issued a
written decision on January 11, 2006, in which it applied a well-
established test to determine whether the public interest
litigant exception applies.2 The test requires that (1) the case
be designed to effectuate strong public policy; (2) numerous
people would benefit from the suit if successful; (3) only a
private party could have been expected to bring the suit; and (4)
the litigant lacked sufficient economic incentive to bring the
suit.3 The court found that Petitioners met the first three
criteria. As to the fourth criterion, the court concluded that
it lack[ed] sufficient detailed information of the petitioners
identities and economic interests (or lack thereof) to determine
whether Petitioners sufficiently lacked financial incentive to
bring the suit. The court gave the parties fifteen days to
submit evidence of the make-up of the Skagway petitioners group
and their economic interest, if any.
The Commission moved for reconsideration of the order.
It disputed the courts finding that Petitioners had met the third
part of the test requiring that only a private party could have
brought the suit.4 The Commission took issue with the courts
determination that [t]he City of Skagway could not have brought
this suit against the Commission because it is prohibited from
bringing due process and equal protection claims against the
state. On the contrary, the Commission asserted, the City could
have brought the same suit under the APA and, for all practical
purposes did[] bring it. The Commission requested that, in the
event that its motion was denied (which it was), the court
evaluate the evidence that [would] be submitted in response to
its Order to determine whether it shows that the Petitioners for
the Dissolution of the City of Skagway . . . is a group that
actually exists and functions separately from and independently
of the City.
In response to the courts request for supplemental
evidence, Petitioners submitted thirty-three affidavits from
various members of the group, each of which stated that the
individual affiant had nothing to gain financially from the
appeal. The court noted that Petitioners affidavits amounted to
satisfactory evidence illustrating that, individually, most of
the members assert that they lack sufficient economic incentive
to bring suit. For its part, the Commission submitted an
affidavit from a local government specialist and numerous
additional documents, which, it claimed, showed
(1) that economic incentives did drive the
petition and the appeal; (2) that the City,
as well as the individuals collectively, had
economic interests in suing in their own
right; and (3) that they petitioned and
appealed in order to protect their own local
economic interests, and not to effectuate any
strong public policies beyond protecting
their own interests.
Based on the evidence submitted by the Commission, the
court found that Petitioners were controlled and acting at the
behest of Skagway. Based on that finding it held that
Petitioners [were] therefore not entitled to public interest
litigant status.
Petitioners appeal the superior courts determination
that they are not public interest litigants. They assert that
the court misapplied the four-part test and erroneously gave
undue weight to the role of the City of Skagway, a non-party to
the litigation whose interests, Petitioners argue, are not
germane to the appeal.
III. DISCUSSION
A. Standard of Review
The applicable standard of review of a superior courts
determination of a partys status as public interest litigants is
abuse of discretion.5 Under this standard, the lower courts
decision should be reversed only where it appears to be
manifestly unreasonable or motivated by an inappropriate purpose.6
Where the decision depends on findings of fact made by the trial
court, such findings must be upheld unless they are clearly
erroneous.7
B. The Public Interest Litigant Exception to Rule 82 Does
Not Apply to Government-Initiated Litigation.
Alaska Rule of Civil Procedure 82(a) provides for
partial recovery of attorneys fees for the prevailing party in a
civil suit.8 This court has developed an exception to this rule
in cases involving issues of genuine public interest to prevent
the rule from deter[ring] citizens from litigating questions of
general public concern for fear of incurring the expense of the
other partys attorneys fees.9 The offensive corollary to this
protective exception is that where a public interest litigant
prevails, the litigant is not limited to the partial recovery
scheme set forth in Rule 82 but can, rather, recover up to one
hundred percent of its attorneys fees.10
This policy-driven exception does not apply where, as
here, the litigation was, or could have been, initiated by a
public entity such as a local government. As noted above, the
third part of the test requires that only a private party could
be expected to bring the suit.11 The superior court found that
the City of Skagway a public entity controlled the petition and
ensuing appeal. Given the evidence submitted by the Commission,
this finding is not clearly erroneous12 and we may not disturb it.
Petitioners are essentially acting as private attorneys general
on behalf of the Citys interests and the broader public interest
that is consistent with the Citys interests. The City would be
precluded from claiming public interest litigant status here, and
it follows that this bar should apply to parties litigating in
its stead.13
Petitioners argue that the City of Skagway could not
have instituted the appeal, because, as the superior court noted,
the City was prohibited from bringing due process and equal
protection claims against the state. This argument lacks merit.
Petitioners ultimately prevailed on statutory, not constitutional
grounds. The City could have raised this argument with the same
result. Even assuming that Petitioners victory could only have
been secured by raising the constitutional due process argument
and that the City would have been barred from raising this
argument, this would not be a sufficient reason to permit an
agent of the City (here, Petitioners) to be considered
independent of the City for purposes of circumventing the third
part of the public interest litigant test. The litigation still
would be brought at the behest of the City.
Last, asserting that the court erred in considering
supplemental briefing and a supplemental affidavit from the Local
Boundary Commission without allowing the Petitioners any
opportunity to respond, Petitioners have requested that, in the
event that we affirm the superior courts ruling, we remand to
allow them further briefing on the issue. We decline to do so.
Petitioners were put on notice by the Commissions motion for
reconsideration of January 24, 2006, that the Commission claimed
that the City controlled the litigation. Petitioners filed
affidavits subsequent to this motion but chose not to focus on
the issue of City control. Further, they do not claim that the
courts conclusion regarding City control is factually as distinct
from legally wrong. As to the latter point they have had a full
opportunity for briefing in this court.
IV. CONCLUSION
The decision of the superior court is AFFIRMED.
_______________________________
1 The petition was eventually approved in 2007.
2 It should be noted that in 2003 the Alaska Legislature
modified and redirected the public interest litigant exception.
See AS 09.60.010(b); ch. 86, 2, SLA 2003. The case at hand was
filed prior to September 11, 2003 the effective date of the act.
3 See, e.g., Matanuska Elec. Assn v. Rewire the Bd., 36
P.3d 685, 696 (Alaska 2001) (citing Kenai Lumber Co. v. LeResche,
646 P.2d 215, 222-23 (Alaska 1982)).
4 Rewire the Bd., 36 P.3d at 696.
5 See Fairbanks N. Star Borough v. Interior Cabaret,
Hotel, Rest. & Retailers Assn, 137 P.3d 289, 291 (Alaska 2006).
6 Kenai Lumber Co. v. LeResche, 646 P.2d 215, 222 (Alaska
1982) (citation omitted).
7 Alaska R. Civ. P. 52(a); see also Alaska N. Dev., Inc.
v. Alyeska Pipeline Serv. Co., 666 P.2d 33, 39 (Alaska 1983).
8 Where, as here, a case goes to trial but no money
judgment is awarded, the prevailing party can recover thirty
percent of its fees, although the court has broad latitude to
vary the award at its discretion. Alaska R. Civ. P. 82(b)(2)-
(3).
9 Kenai Lumber Co., 646 P.2d at 222 (quotations and
citation omitted); see also Gilbert v. State, 526 P.2d 1131, 1136
(Alaska 1974) (holding that [i]t is an abuse of discretion to
award attorneys fees against a losing party who has in good faith
raised an issue of genuine public interest before the courts).
10 See State v. Native Vill. of Nunapitchuk, 156 P.3d 389,
392 n.2 (Alaska 2007) (citing Anchorage v. McCabe, 568 P.2d 986,
989-91 (Alaska 1977) and Gilbert, 526 P.2d at 1136).
11 E.g., Rewire the Bd., 36 P.3d at 696 (citing Kenai
Lumber Co., 646 P.2d at 222-23).
12 See Alaska N. Dev., 666 P.2d at 39.
13 Petitioners argue that our decision in Hickel v.
Southeast Conference, 868 P.2d 919 (Alaska 1994), compels a
contrary result. In Hickel, we upheld an award of attorneys fees
and costs to the Mat-Su Borough and other litigants, all of whom
claimed public interest litigant status. Id. at 922. In that
case, however, the state did not contest the litigants public
interest status, id., so the issue of whether the borough, a
public entity, qualified as a public interest litigant was not
properly before us; we did not purport to pass on it.
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