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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Krone v. State, Dept. of Health & Social Services (12/31/2009) sp-6446
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
| DOROTHY KRONE, SILAS STEVENS, | ) |
| and BILLIE WALLACE on behalf of | ) Supreme Court No. S-12783 |
| themselves and all those similarly situated, | ) |
| ) Superior Court No. 3AN-05- 10283 CI | |
| Appellants, | ) |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| STATE OF ALASKA, DEPARTMENT | ) No. 6446 - December 31, 2009 |
| OF HEALTH AND SOCIAL SERVICES, | ) |
| Joel Gilbertson, in his official capacity as | ) |
| Commissioner of the Department, | ) |
| DIVISION OF SENIOR SERVICES, and | ) |
| Rod Moline, in his official capacity as | ) |
| Acting Director of the Division, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
William F. Morse, Judge.
Appearances: James J. Davis, Jr. and Goriune
Dudukgian, Northern Justice Project, and Kara A.
Nyquist, Alaska Pro Bono Program, Anchorage, for
Appellants. David T. Jones, Assistant Attorney
General, Anchorage, and Talis J. Colberg, Attorney
General, Juneau, for Appellees.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
WINFREE, Justice.
I. INTRODUCTION
Class representatives prevailed in a class action suit
concerning state constitutional rights. The pro bono fee
agreement between the class representatives and their attorneys
provided that the attorneys would be entitled to receive any
attorneys fees awarded to the class representatives at the
conclusion of the case. The superior court determined that the
class representatives were public interest litigants and awarded
them attorneys fees by: (1) determining appropriate hourly rates
for their pro bono attorneys; (2) multiplying those rates by an
appropriate number of attorney hours actually and reasonably
expended in connection with the litigation; and (3) then doubling
that amount based on a number of considerations, but primarily to
encourage pro bono service in similar cases.
We then decided State v. Native Village of Nunapitchuk,1
upholding the validity of an amendment to AS 09.60.010 intended
to abrogate attorneys fees awards under our public interest
litigation decisions. Based on its reading of Nunapitchuk and
the statutory amendments, the superior court reconsidered and
reduced the attorneys fees award to eliminate the final doubling
factor. The class representatives appeal.
We affirm the superior courts reliance on AS
09.60.010(c)(1), which provides that in a civil action concerning
state constitutional rights the court shall generally award a
prevailing claimant full reasonable fees. But because it appears
the superior court felt constrained in its approach to
determining full reasonable fees, we vacate the attorneys fees
award and remand for renewed consideration of an award of full
reasonable attorneys fees to the class representatives.
II. FACTS AND PROCEEDINGS
Alaskas Medicaid Home and Community-Based Services
Waiver Program (Program) provides long-term health care services
to individuals in their homes or communities as an alternative to
nursing home placement. In 2004 the Department of Health and
Social Services (DHSS) changed the way it determined eligibility
for the Program; shortly thereafter, it began terminating newly
ineligible participants from the Program. In August 2005 the
Northern Justice Project (NJP), representing putative class
representatives pro bono, brought suit against DHSS on behalf of
disabled, low-income individuals recently terminated from the
Program. The class representatives alleged that DHSS had
violated the Program recipients state and federal constitutional
due process rights by terminating them from the Program for
medical ineligibility without first finding that their medical
conditions had materially improved. The class representatives
did not seek damages, but asked that former benefit recipients be
reinstated to the Program and that no additional benefit
recipients be terminated from the Program unless their medical
conditions had materially improved.
Superior Court Judge William F. Morse certified the
class in January 2006. The next month DHSS stipulated to an
injunction prohibiting termination of benefits until it proved,
at a full and fair hearing, that a recipients medical condition
had materially improved since being admitted to the Program.
DHSS subsequently restored Program benefits it had already
terminated and began developing regulations defining material
improvement of medical conditions. In December 2006 the superior
court entered final judgment in favor of the class.
In February 2007 the class representatives moved for an
award of enhanced attorneys fees in the amount of $120,000,
approximately three times what NJP asserted would be actual
reasonable fees. The class representatives argued this was
appropriate because: (1) the class was a prevailing public
interest litigant; (2) NJP stood to receive no compensation
beyond court-awarded fees; and (3) the case was of a type that
would make it difficult to attract capable counsel without the
potential for enhanced fees.
In support of the fee motion NJP submitted affidavits
from two Anchorage attorneys. One attorney stated that in the
prevailing Anchorage legal market, reasonable hourly billing
rates for the two NJP attorneys would be in the range of $185 to
$210 and $235 to $285, respectively. The other attorney placed
reasonable hourly billing rates for the two NJP attorneys at not
less than $200 and $275, respectively. NJP submitted affidavits
showing just over 150 hours of billable attorney time in the case
and calculated a reasonable fee of $15,780 for one attorney based
on an hourly rate of $200 and $21,642.50 for the other based on
an hourly rate of $275, for a total of $37,422.50.
In March 2007 the superior court awarded attorneys fees
of $67,740, double the amount it concluded would be actual
reasonable fees (based on the hourly rates suggested by NJP and
the hours the court deemed compensable). The court noted several
factors, but stated that [t]he most compelling justification for
an enhancement is the testimony concerning the paucity of
attorneys both capable of taking on a case of this type [and]
willing to do so on a pro bono basis. DHSS moved for
reconsideration, which the superior court granted. Before the
superior court ruled on reconsideration, we issued our decision
in State v. Native Village of Nunapitchuk upholding an amendment
to AS 09.60.010 intended to modify a policy-based nontextual
exception to Alaska Civil Rule 82 that created special treatment
of attorneys fees awards in public interest litigation.2 The
superior court then invited the parties to revise their filings
on the motion for attorneys fees in light of [Nunapitchuk].
In June 2007 the superior court amended its earlier
award, reasoning that its justification for the fee enhancement
had been based on the line of cases the amended statute had
overturned. The court reduced the award of attorneys fees to
$36,570, based on the same hourly rates but with more hours of
effort, relying on a new provision of the amended statute, AS
09.60.010(c)(1).3
The class representatives appeal, requesting that we
reverse the superior courts final fee award and reinstate its
original fee award.
III. STANDARD OF REVIEW
A trial courts award of attorneys fees is generally
reviewed for abuse of discretion.4 An abuse of discretion exists
if an award is arbitrary, capricious, manifestly unreasonable, or
the result of an improper motive.5 Whether the trial court
correctly applied the law in determining an award of attorneys
fees is a question of law that we review de novo.6 We use our
independent judgment when reviewing issues of statutory
interpretation, adopting the rule of law that is most persuasive
in light of precedent, reason, and policy.7 We interpret
statutes according to reason, practicality, and common sense,
taking into account the plain meaning and purpose of the law, as
well as the drafters intent.8
IV. DISCUSSION
A. Attorneys Fees Awards for Public Interest Litigants
Alaska courts award partial attorneys fees to
prevailing parties in most civil litigation as a matter of
course.9 Alaska Civil Rule 82(a) specifies that [e]xcept 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.10 Subsection (b)(1) provides that a
prevailing party shall receive an award of attorneys fees based
on a percentage of the money judgment.11 A prevailing party not
recovering a money judgment shall receive an award of attorneys
fees under subsection (b)(2) based on a percentage of reasonable
actual attorneys fees; the percentage depends on whether the case
went to trial.12 Subsection (b)(3) lists factors that a court may
use to vary an attorneys fees award calculated under subsections
(b)(1) or (b)(2) of the rule.13 Factors listed include the
complexity of the litigation, the length of trial, and the
reasonableness of the attorneys hourly rates and the number of
hours expended.14
The public interest litigation exception to Rule 82 was
first announced in Gilbert v. State,15 the earliest of five cases
later expressly overruled, at least in part, by the amended AS
09.60.010.16 The public interest exception operated both
affirmatively, in that when a public interest litigant prevails
it is entitled to an award of full attorneys fees, and
protectively, in that when a public interest litigant is on the
losing side of litigation no attorneys fees may be assessed
against it.17 Four useful criteria for public interest litigant
status were enunciated in Kenai Lumber Co. v. LeResche:18 (1) Is
the case designed to effectuate strong public policies? (2) If
the plaintiff succeeds will numerous people benefit from the
lawsuit? (3) Can only a private party have been expected to bring
the suit? (4) Would the purported public interest litigant have
sufficient economic incentive to file suit even if the action
involved only narrow issues lacking general importance?19
In 2003 the Alaska legislature added subsections (b)
through (e) to AS 09.60.010.20 Alaska Statute 09.60.010(b)
provides as follows:
(b) Except as otherwise provided by statute,
a court in this state may not discriminate in
the award of attorney fees . . . in a civil
action . . . 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.
The four factors detailed in subsection (b) are the Kenai Lumber
factors determining whether an action constitutes public interest
litigation.21
Alaska Statute 09.60.010(b) was added to expressly
overrule our public interest litigation decisions insofar as they
relate to the award of attorney fees . . . to or against public
interest litigants in future civil actions.22 The legislature was
concerned that [t]he judicially created doctrine respecting the
award of attorney fees . . . for or against public interest
litigants [had] created an unbalanced set of incentives for
parties litigating issues that [fell] under the public interest
litigant exception, and that [t]his imbalance [had] led to
increased litigation, arguments made with little merit,
difficulties in compromising claims, and significant costs to the
state and private citizens.23 The legislature emphasized its
concern that application of the public interest litigant
exception [had] resulted in unequal access to the courts and
unequal positions in litigation.24
Nunapitchuk presented a challenge to AS 09.60.010(b).25
We upheld the validity of the legislation, construed narrowly,
stating that although the amendment abrogates, in part, the
public interest litigant exception, it does not modify Rule 82.26
We concluded that where Rule 82 applies, the amendment 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).27
B. The Superior Courts Rulings
The superior court initially (before Nunapitchuk)
reasoned that as prevailing public interest litigants, the class
representatives would be normally entitled to full reasonable
attorneys fees and, quoting from City of Kenai v. Friends of
Recreation Center, Inc.,28 noted that [v]ictorious public interest
litigants receive their full fees from their opponents, rather
than the normal partial reimbursement allowed by Alaska Civil
Rule 82 to encourage plaintiffs to raise issues of public
interest.
The superior court also stated that it found our
discussion of fee enhancement in Municipality of Anchorage v.
Gentile29 to be most helpful. There we noted that the purpose of
Rule 82 is to partially reimburse prevailing parties for
attorneys fees, and that where counsel does not charge hourly
fees, a trial court may calculate fees by (1) determin[ing] the
compensable value of the services the attorneys rendered to the
class, and (2) apply[ing] Rule 82 to the amount calculated in
Step 1 to decide how much [the non-prevailing party] should pay.30
We held that while awarding enhanced fees runs counter to Rule
82, awards greater than the product of hours worked and hourly
rates are not precluded by the Rule, and that trial courts may
properly consider factors other than the number of hours worked
and hourly rates in determining the value of services under Step
1.31
The superior court stated that the NJP attorneys
deserve[] an enhancement that reflects the contingency, the lack
of a fee from the party, and the efficiencies derived from the
class action itself, as well as the lawyers bare bones tactics.
The superior court also noted that the most compelling
justification for an enhancement is to encourage pro bono service
in similar cases. The superior court therefore doubled what it
considered to be actual reasonable fees based on NJPs hours
worked and suggested hourly rates. The superior court later
reversed itself after considering the Nunapitchuk decision.
Reasoning that its original order had been based in large part on
fee enhancement discussions from the line of cases overturned by
AS 09.60.010(b), it decreased the award to full reasonable
attorney fees (based on the previously approved hourly rates and
NJPs hours worked) under AS 09.60.010(c)(1).
C. Arguments on Appeal
The class representatives argue that in Nunapitchuk we
concluded AS 09.60.010(b) altered only the public interest
litigant exception to Rule 82, and that enhanced fees cases under
Rule 82, like Gentile, remain good law. They also argue that the
legislature did not intend AS 09.60.010(c) to prohibit enhanced
fees because the amendments purpose was to provide for a more
equal footing for parties in civil actions . . . by abrogating
the special status given to public interest litigants with
respect to the award of attorney fees.32 They contend that if
litigants making constitutional claims are barred from receiving
enhanced fees, they will not be on equal footing with litigants
who are not making constitutional claims but who might be
entitled to enhanced fees under Rule 82. They request that we
reverse the trial court and reinstate its earlier award of
attorneys fees.
DHSS points to the language in Rule 82 stating that
[e]xcept 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.33 DHSS argues AS
09.60.010(c)(1) provides otherwise, requiring courts to award
full reasonable attorneys fees to prevailing claimants in civil
actions concerning constitutional rights and eliminating the
application of Rule 82 to those actions. DHSS further argues
that an award of full reasonable attorneys fees does not include
more than the product of the number of hours reasonably spent on
the case, multiplied by a reasonable hourly rate.
D. The Superior Court Did Not Err in Concluding that AS
09.60.010(c)(1) Applies and Provides for Full
Reasonable Attorneys Fees in This Case.
We recognized in Nunapitchuk that the public interest
exception to Rule 82 was substantive law and that AS 09.60.010
was designed to modify it.34 Alaska Statutes 09.60.010(c) through
(e) thus create a substantive fee-shifting framework for
constitutional litigation.35 Subsection (c)(1) provides that in a
civil action concerning a federal or state constitutional right,
the court shall generally award full reasonable attorneys fees to
a claimant who has prevailed in asserting the right.36
We discussed at some length in Nunapitchuk the
interplay between Rule 82 and substantive fee-shifting statutes
like AS 09.60.010(c)(1):
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
______________
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
. . . .).[37]
We therefore agree, in part, with DHSS. Under AS
09.60.010(c)(1) the class representatives are entitled to an
award of full reasonable attorneys fees for prevailing on their
constitutional claims in this case; neither Rule 82 nor the
previous public interest litigation exception to Rule 82 governs
the award of attorneys fees to the class representatives.
We disagree with DHSSs contention that full reasonable
attorneys fees under AS 09.60.010(c)(1) may only be determined as
the product of reasonable hourly rates and the actual reasonable
hours worked. The only authority cited by DHSS is Bobich v.
Hughes,38 but all we held in that case is that the trial court did
not abuse its discretion in its award of full reasonable
attorneys fees under an applicable attorneys fees statute.39 The
trial court had: (1) declined a request for an enhanced fee
award because the attorney had unnecessarily complicated the
case;40 (2) multiplied the attorney hours spent on the relevant
issues by what it found to be a reasonable hourly rate;41 and
(3) then reduced that amount to account for the attorneys
behavior and vague billing records.42 We concluded that the trial
court acted within its discretion in determining full reasonable
attorneys fees.43
We have never held that reasonable attorneys fees,
regardless of context, may be calculated only by multiplying
reasonable hourly rates by actual reasonable hours worked, and AS
09.60.010(c)(1) does not suggest any such limitation. Actual
fees are those the party agrees to pay its lawyer,44 but when
attorneys charge an unusually low fee or no fee at all except
that which might be awarded by the court, the proper approach to
determining actual reasonable fees is to objectively value the
attorneys services.45 That might be accomplished simply by
multiplying reasonable hourly rates by the actual reasonable
hours worked,46 or in an appropriate context, by further
considering value-enhancing factors such as risk premiums and
encouraging representation in similar cases.47 In another
appropriate context, that might instead be accomplished by a
common fund analysis.48 But in every context, a court should
carefully consider all factors relevant to reasonableness.49
Chapter 86, SLA 2003, particularly AS 09.60.010(b),50
was intended to abrogate our judicially created public interest
litigation framework that provided a certain category of
litigants with either full reasonable attorneys fees or
protection against adverse fee awards.51 But nothing suggests
that the legislature intended AS 09.60.010(b) to restrict a
courts discretion in calculating full reasonable attorneys fees
for an award under AS 09.60.010(c)(1). Indeed the legislative
history reflects a consensus that successful constitutional
claimants were to continue being treated in the same general
manner as successful public interest litigants.
It is not clear from the record that the superior court
recognized it was not constrained to use the simple mathematical
model of reasonable rates times reasonable hours worked to
determine full reasonable attorneys fees in this case. We
therefore vacate the award and remand for the superior court to
consider an award of full reasonable attorneys fees for the class
representatives consistent with this opinion. We do not mean to
suggest that the superior court may not, in its discretion, reach
the same conclusion it reached in its second fee award. But its
ultimate conclusion should be reached only after express
consideration of all factors relevant to a determination of full
reasonable fees for a claimant who prevails on constitutional
claims.
V. CONCLUSION
For the foregoing reasons, we AFFIRM the superior
courts decision that the class representatives are entitled to an
award of full reasonable attorneys fees under AS 09.60.010(c)(1),
but VACATE the actual award and REMAND for further consideration
of an award of full reasonable attorneys fees.
_______________________________
1 156 P.3d 389 (Alaska 2007).
2 See 156 P.3d at 391-92.
3 AS 09.60.010 provides in pertinent part:
(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 . . . .
4 Kellis v. Crites, 20 P.3d 1112, 1113 (Alaska 2001).
5 Reid v. Williams, 964 P.2d 453, 460 n.17 (Alaska 1998)
(quoting Hughes v. Foster Wheeler Co., 932 P.2d 784, 793 (Alaska
1997)).
6 Glamann v. Kirk, 29 P.3d 255, 259 (Alaska 2001).
7 Id. (quoting Philbin v. Matanuska-Susitna Borough, 991
P.2d 1263, 1266 (Alaska 1999)).
8 See Native Vill. of Elim v. State, 990 P.2d 1, 5
(Alaska 1999).
9 See Nunapitchuk, 156 P.3d at 394.
10 Alaska R. Civ. P. 82(a).
11 See Alaska R. Civ. P. 82(b)(1); Reid, 964 P.2d at 461.
12 Alaska R. Civ. P. 82(b)(2).
13 Alaska R. Civ. P. 82(b)(3).
14 Id.
15 526 P.2d 1131, 1136 (Alaska 1974) (holding it was abuse
of discretion to award attorneys fees to the State against losing
party who in good faith raised question of genuine public
interest before the court).
16 Chapter 86, 1-4, SLA 2003; Nunapitchuck, 156 P.3d at
391-92, 402-06. The four other cases are Anchorage v. McCabe,
568 P.2d 986, 990 (Alaska 1977) ([t]he Gilbert public interest
exception to Rule 82 is designed to encourage plaintiffs to bring
issues of public interest to the courts.); Thomas v. Bailey, 611
P.2d 536, 541 (Alaska 1980) (stating that public interest
litigators should not be compensated at the rate provided for
representing indigents, but should instead be fully compensated
at a reasonable rate to encourage public interest litigation);
Se. Alaska Conservation Council, Inc. v. State, 665 P.2d 544, 553
(Alaska 1983) (stating that because public interest exception
seeks to encourage the vindication of the public interest, we
perceive no reason to distinguish between the public or private
character of the defendant in a particular public interest
lawsuit); Dansereau v. Ulmer, 955 P.2d 916, 920 (Alaska 1998)
(holding that only exceptional circumstances would warrant
apportion[ing] fees by issue and award[ing] fees only for those
issues on which the public interest litigant prevailed).
17 Nunapitchuk, 156 P.3d at 392 n.2.
18 646 P.2d 215 (Alaska 1982).
19 Id. at 222-23.
20 Chapter 86, 1-4, SLA 2003; see also Nunapitchuk, 156
P.3d at 391 n.1. Former AS 09.60.010 simply provided, in
relevant part, that [t]he supreme court shall determine by rule
or order the costs, if any, that may be allowed a prevailing
party in a civil action. Former AS 09.60.010. Former AS
09.60.010 became AS 09.60.010(a) after the amendment.
21 Kenai Lumber, 646 P.2d at 222-23; Nunapitchuk, 156 P.3d
at 394-95, 405.
22 Chapter 86, 1(b), SLA 2003.
23 Id.
24 Id.
25 Nunapitchuk, 156 P.3d at 391-92. Nunapitchuk arose from
two superior court decisions invalidating the amendment to AS
09.60.010 because (1) it purported to change court rules without
proper notice or the required two-thirds vote of both houses of
the legislature, and (2) it impermissibly impeded access to the
courts in violation of state constitutional due process and equal
protection rights. Id. at 393. The superior courts found the
legislation inseverable and invalidated it in its entirety. Id.
The superior courts thus allowed attorneys fees awards under the
public interest litigant exception to Rule 82. Id.
26 Id. at 406.
27 Id. at 392.
28 129 P.3d 452, 460 (Alaska 2006) (quoting Se. Alaska
Conservation Council, 665 P.2d at 553).
29 922 P.2d 248 (Alaska 1996).
30 Id. at 263.
31 Id. at 264-65.
32 Chapter 86, 1(b), SLA 2003.
33 Alaska R. Civ. P. 82(a) (emphasis added).
34 Nunapitchuk, 156 P.3d at 402-04.
35 AS 09.60.010(c) through (e) provide as follows:
(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.
36 Id. Subsections (c)(2), (d), and (e) are not at issue
in this case and we express no opinion on their validity or
application or on related implications arising from the fact that
Chapter 86, SLA 2003, was not passed by a two-thirds vote of the
members of each house. See Nunapitchuk, 156 P.3d at 391-92, 404-
05.
37 156 P.3d at 403.
38 965 P.2d 1196 (Alaska 1998).
39 Id. at 1200-01.
40 Id. at 1200.
41 Id.
42 Id.
43 Id. at 1201.
44 Gentile, 922 P.2d at 263.
45 Id. at 263 n.20 (stating this principle in the context
of determining the reasonable value of legal services for the
application of Rule 82 percentages).
46 See Valdez Fisheries Dev. Assn, Inc. v. Froines, 217
P.3d 830, 833 (Alaska 2009) (Froines III) (stating that [c]ourts
often approach the question [of objective reasonableness of fees]
by determining whether the hourly rate charged was reasonable and
whether the number of hours worked was reasonable, and noting
that Rule 82(b)(3) factors may be helpful in assessing whether
the number of hours claimed is reasonable); Thomas v. Bailey, 611
P.2d 536, 541-42 (Alaska 1980) (stating in public interest
litigation context that generally, full compensation at a
reasonable rate per hour will prove adequate, and noting that
many of the same factors used as a guide in determining the fee
an attorney should charge a client are applicable [referring to
factors now found in Alaska Bar R. 35]). Ch. 86, SLA 2003,
overruled Thomas in part by abrogating the public interest
litigant doctrine, but the discussion in Thomas relating to
calculating full reasonable attorneys fees remains valid in the
context of fee awards for constitutional claims.
47 Gentile, 922 P.2d at 264-65; State, Dept Health & Soc.
Servs. v. Okuley, 214 P.3d 247, 250 n.10 (Alaska 2009); see also
ERA Aviation, Inc. v. Lindfors, 17 P.3d 40, 51 (Alaska 2000)
(This court has affirmed lodestar or risk-enhanced fees only in
exceptional circumstances, when there was a strong public
interest involved, or the attorneys stood to receive no
compensation other than the fees granted by the court.) (citing
Gentile, 922 P.2d at 265 (consideration of risk-enhanced fees in
class action); Wise Mech. Contractors v. Bignell, 718 P.2d 971,
975 (Alaska 1986) (affirming fee award greater than product of
hours and reasonable rate when justified by complexity and
novelty of case, benefit to plaintiff, and contingent nature of
counsels right to compensation); and Thomas, 611 P.2d at 539, 541-
43 (denying risk-enhanced fees)).
48 Gentile, 922 P.2d at 265-66; Okuley, 214 P.3d at 250
n.10.
49 Okuley, 214 P.3d at 251 n.13 (noting factors, generally
encompassed by Alaska Bar Rule 35, that may be considered). See
also Froines III, 217 P.3d at 833 n.17 (noting Rule 82(b)(3)
factors may be helpful in assessing reasonableness).
50 AS 09.60.010(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.
51 Nunapitchuk, 156 P.3d at 389.
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