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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Trask v. Ketchikan Gateway Borough (6/17/2011) sp-6569
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, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
LETA TRASK, )
) Supreme Court No. S-13590
Appellant, )
) Superior Court No. 1KE-07-00437 CI
v. )
) O P I N I O N
KETCHIKAN GATEWAY )
BOROUGH, )
) No. 6569 - June 17, 2011
Appellee. )
Appeal from the Superior Court of the State of Alaska, First
Judicial District, Ketchikan, Trevor N. Stephens, Judge.
Appearances: Amanda M. Schulz, Schulz & Skiles,
Ketchikan, for Appellant. Scott A. Brandt-Erichsen, Borough
Attorney, Ketchikan Gateway Borough, Ketchikan, for
Appellee.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen,
and Stowers, Justices.
STOWERS, Justice.
I. INTRODUCTION
Leta Trask painted a religious message on her roof. Ketchikan Gateway
Borough filed a complaint seeking to enjoin Trask from displaying the message, arguing
that the message violated a borough ordinance prohibiting roof signs. Trask
counterclaimed for relief under 42 U.S.C. § 1983, arguing that the Borough's
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enforcement of the ordinance violated her right to free speech. The superior court
concluded that Trask did not have to remove the message because it was not a "sign" for
the purposes of the ordinance, dismissed Trask's § 1983 claim for lack of standing, and
awarded Trask attorney's fees under the schedule provided in Alaska Civil Rule 82.
Trask appeals the dismissal of her § 1983 claim and the failure to award her enhanced
attorney's fees. We hold that Trask has standing to assert a § 1983 claim and that her
counterclaim states a claim for relief under § 1983. We therefore reverse and remand for
further proceedings.
II. FACTS AND PROCEEDINGS
Leta Trask owns a house in the Ketchikan Gateway Borough. On
August 10, 2005, Trask wrote a letter to the Borough stating that she planned to refresh
and modify a painted Biblical message on her roof and asking whether her intended
message would require a permit.1 The Borough had recently updated its ordinance
relating to signs on roofs to provide that "[r]oof-mounted signs, including any signs
painted on the roof surface, but excepting those mounted on a marquee or canopy, are
prohibited."2
The Borough responded by informing Trask in a letter that she would not
need a permit because the message as she described it was not a "sign" under the
definition included in the Ketchikan Gateway Borough (KGB) Code.3 Trask
1 The history of Trask's original Biblical roof message is described in
Lybrand v. Trask, 31 P.3d 801 (Alaska 2001). See infra note 24 for a summary of this
history.
2 Ketchikan Gateway Borough Code § 60.10.090(A)(8).
3 KGB Code § 60.10.140 defines sign as "[a]ny words . . . [or] figures . . . by
which anything is made known, such as are used to designate an individual, a firm, an
association, a corporation, a profession, a business or a commodity or product, which are
(continued...)
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subsequently painted a message on her roof that read: "DO UNTO OTHERS . . . : BY
YOUR DEEDS YOU'RE KNOWN: LOVE YOUR NEIGHBOR: YOU'RE
WELCOME." The roof also displayed a cross and two hearts. The message was painted
on Trask's relatively flat roof. As a result, it was mainly visible only to her uphill
neighbors.
After some of Trask's neighbors complained to the Borough about the
message, the Borough sent Trask several letters informing her that the message violated
the KGB Code and instructing her to remove it. In one letter, the Borough threatened
that citations might be issued if Trask did not remove the message.
Trask did not remove the message, so the Borough filed a superior court
complaint to enjoin Trask from displaying the message and seeking the imposition of a
$200 fine. The Borough alleged that the message violated KGB Code § 60.10.090(A)(8).
Trask filed a counterclaim alleging, among other things, that the Borough singled her out
for enforcement based on the content of her message and that as applied to her the
ordinance violated the First and Fourteenth Amendments of the United States
Constitution by restricting her freedom of speech. She sought relief under 42 U.S.C. §
1983, which provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
3 (...continued)
visible from any public area and used to attract attention."
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laws, shall be liable to the party injured in an action at law,
[ ]
suit in equity, or other proper proceeding for redress . . . . 4
The Borough moved to dismiss Trask's counterclaim to the extent it argued
civil rights violations based on her state constitutional right to free speech. This motion
was granted. Trask then moved for summary judgment on her First Amendment claim.
She argued that the ordinance violated her First Amendment rights, that it was not
content neutral, and that even if it had been, it was not a reasonable time, place and
manner restriction. In other words, she argued that the ordinance was not narrowly
tailored and that it could not withstand strict scrutiny. Following Trask's motion for
summary judgment, the superior court found that Trask's roof message was not a "sign"
as defined by KGB Code § 60.10.140. As a result, the court dismissed the Borough's
enforcement action. But the superior court also concluded that Trask lacked standing to
challenge the constitutionality of KGB Code § 60.10.090(A)(8). It did not address
whether Trask could receive relief under § 1983 because "the parties [had] not addressed
this issue." The Borough subsequently argued that the superior court's order dismissed
the entire case, but Trask argued that her § 1983 claim remained viable. The superior
court requested additional briefing on the § 1983 claim, and the Borough responded with
a motion to dismiss. The Borough argued that its enforcement action did not violate
Trask's constitutional rights.
Trask argued that she was entitled to relief under § 1983 because "the
actions of [the Borough] in using the ordinance to demand removal of the painting and
then file suit again[st] [her] was an overbroad and unconstitutional application of the
ordinance that had the effect of curtailing her speech." She argued that even though she
never removed the sign, "fear of further prosecution kept her from making any
modifications or performing any upkeep."
4 42 U.S.C. § 1983 (2006).
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The superior court dismissed Trask's § 1983 action because it concluded
there was no constitutional violation and Trask did not have standing to litigate the
constitutionality of the ordinance.
Trask requested enhanced attorney's fees pursuant to Alaska Civil
Rule 82(b)(3), arguing that she was the prevailing party because the court found that the
sign ordinance did not apply to her and dismissed the Borough's cause of action. Trask
argued that she should receive full reasonable fees because she minimized litigation
costs, the case concerned constitutional issues, and the Borough acted in bad faith.
The court found that Trask was the prevailing party and awarded her 20%
of her actual reasonable attorney's fees under Rule 82(b)(2). It chose not to award
enhanced fees because it determined the Borough did not act in bad faith and no other
enhancing factors applied.
Trask appeals the superior court's dismissal of her § 1983 claim and its
decision to not award enhanced attorney's fees under Rule 82.
III. DISCUSSION
A. Standard Of Review
We review a trial court's decision granting or denying a motion to dismiss
de novo.5 We also review issues of standing de novo.6
B. It Was Error To Dismiss Trask's § 1983 Claim.
Trask argues that the actions the Borough took in enforcing the ordinance
against her to have her remove her roof message violated her right to free speech.
5 Varilek v. City of Houston, 104 P.3d 849, 851 (Alaska 2004).
6 Neese v. Lithia Chrysler Jeep of Anchorage, Inc., 210 P.3d 1213, 1217
(Alaska 2009) (internal citations omitted).
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1. Trask has standing to bring her § 1983 claim.
The Borough argues that Trask lacks standing to challenge the sign
ordinance because the superior court correctly ruled that the message on her roof is not
a "sign" and because Trask's right of free expression was not infringed; she did not
remove the message.
Standing in Alaska generally is interpreted leniently.7 A litigant has
interest-injury standing when she has "an interest adversely affected by the conduct
complained of."8 We have said: "[W]e have long interpreted Alaska's standing
requirement leniently in order to facilitate access to the courts. The basic idea . . . is that
an identifiable trifle is enough for standing to fight out a question of principle."9
The Tenth Circuit Court of Appeals has addressed cases similar to the one
at hand. In Christensen v. Park City Municipal Corporation, the court held that
one way to establish a claim is to allege that enforcement of
an express policy made by lawmakers causes a constitutional
deprivation. "Local governing bodies . . . can be sued
directly under § 1983 . . . where . . . the action that is alleged
to be unconstitutional implements or executes [an] . . .
ordinance . . . officially adopted and promulgated by that
body's officers.[10]
InFaustin v. City of Denver, Colorado, the Tenth Circuit held that a woman had standing
to sue for damages, including nominal damages, based on any prosecution she had
7 State v. Planned Parenthood of Alaska, 35 P.3d 30, 34 (Alaska 2001).
8 Trustees for Alaska v. State, Dep't of Natural Res., 736 P.2d 324, 327
(Alaska 1987).
9 Planned Parenthood, 35 P.3d at 34 (internal citations and quotations
omitted).
10 554 F.3d 1271, 1279 (10th Cir. 2009) (quoting Monell v. Dep't of Soc.
Servs., 436 U.S. 658, 690 (1978)).
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already experienced before a city prosecutor determined that an ordinance under which
she had been prosecuted for displaying an anti-abortion banner on an overpass did not
apply to her.11 In two other cases, the Tenth Circuit found that a threat of arrest was
enough to confer standing to claim retrospective damages,12 and that litigants had
standing when they were forced to leave a jurisdiction to avoid prosecution under an
ordinance.13 In contrast, that court found that a litigant lacked standing when he was "not
cited, prosecuted, or even threatened with citation or prosecution"; the litigant's assertion
that he was fearful he would be prosecuted for violating a statute was insufficient to
provide standing.14
In a case similar to this one, the Eighth Circuit Court of Appeals ruled that
although a plaintiff did not have standing for injunctive relief, she had standing to claim
damages under § 1983 for an as-applied challenge even though she was not prosecuted
and the city declared the ordinance inapplicable to her.15
Here, Trask's alleged injuries are more than merely trifling.16 Her suit
pertains to a question of principle: She is arguing that her First Amendment rights were
actually and prospectively violated by the Borough because the Borough's enforcement
11 268 F.3d 942, 948 (10th Cir. 2001).
12 PETA v. Rasmussen, 298 F.3d 1198, 1203 (10th Cir. 2002).
13 Dias v. City of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009).
14 Winsness v. Yocom, 433 F.3d 727, 732 (10th Cir. 2006).
15 Harmon v. City of Kansas City, Mo., 197 F.3d 321 (8th Cir. 1999).
16 Trask had a history of expressing her Biblical messages on her roof. See
supra note 1. It is apparent that Trask wanted to express a new message (indeed, she did
so), and thus "refreshing or modifying" her message was her way of saying she wanted
to exercise her constitutional right to speak. This provides ample grounds for standing
and is certainly more than a "mere trifle."
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action was aimed directly at her. We agree. Although she was not prosecuted for
violating the Borough ordinance, the Borough ordered her to remove her message,
threatened her with citations for violating the ordinance, and filed a complaint against her
in which it requested injunctive relief prohibiting her from displaying the message, the
imposition of a $200 civil penalty, and attorney's fees and costs. As a result of the
enforcement actions, Trask alleges that she did not refresh or modify her roof paintings.
By alleging that the Borough infringed on her right to free speech through an
enforcement action that was aimed directly at her, she has articulated enough of an injury
to confer interest-injury standing. Because Trask alleged an injury that confers standing,
we must next address whether Trask can receive relief under § 1983.
2. Trask presented an actionable § 1983 claim.
Trask argues that she is entitled to relief under § 1983 as a result of the
Borough's actions. She stated in her counterclaim that the Borough sued her for
violating KGB Code § 60.10.090(A)(8), seeking injunctive relief and a monetary penalty.
Trask alleged that the KGB Code "violates the First and Fourteenth Amendments . . . as
applied because it creates an effective ban on constitutionally protected speech" and
because "it is not the least restrictive means of accomplishing any compelling
governmental purpose." She alleged that "[b]y enforcing KGB Code §§ 60.10.090 (A)
& (B), Ketchikan Gateway Borough, acting under the color of state law, deprived and is
depriving, Leta Trask of her rights guaranteed and protected by the United States
Constitution" and that the Borough "is liable for any such actions which violate Leta
Trask's constitutional rights." The counterclaim expressly stated that her claims were
in part based upon 42 U.S.C. § 1983.
The Borough argues that Trask's claim is not a proper § 1983 claim. The
Borough originally filed a motion to dismiss under Civil Rule 12(b)(6) for failure to state
a claim upon which relief can be granted. It is unclear whether the superior court
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dismissed the claim as a Civil Rule 12(b)(6) dismissal for failure to state a claim or as a
Civil Rule 56(c) dismissal on summary judgment. In context, it appears the superior
court dismissed Trask's claim under a Rule 12(b)(6) analysis, and we have analyzed the
court's order accordingly.17 To survive a motion to dismiss, a complaint need only allege
a set of facts consistent with and appropriate to some cause of action.18
In evaluating a § 1983 claim against a municipality, a court must consider:
"(1) whether plaintiff's harm was caused by a constitutional violation, and if so,
(2) whether the city is responsible for that violation."19
First, then, we must consider whether Trask alleged a set of facts consistent
with a constitutional violation. The regulated speech at issue here is a Biblical message
displayed on private property.20 When assessing whether a time, place, or manner
restriction on residential messages is constitutional, the court must first determine
17 Even if the superior court dismissed Trask's claim by summary judgment
pursuant to Civil Rule 56(c), Trask has alleged facts consistent with stating an actionable
§ 1983 claim and raised genuine issues of material fact sufficient to defeat a motion for
summary judgment.
18 Catholic Bishop of N. Alaska v. Does 1-6, 141 P.3d 719, 722 (Alaska 2006)
(internal quotations omitted).
19 Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992).
20 The U.S. Supreme Court emphasized the importance of signs located on
private property in City of Ladue v. Gilleo, 512 U.S. 43 (1994). It noted that "[a] special
respect for individual liberty in the home has long been part of our culture and our
law . . .; that principle has special resonance when the government seeks to constrain a
person's ability to speak there." Id. at 58. The Court discussed the uniqueness of signs:
"Displaying a sign from one's own residence often carries a message quite distinct from
placing the same sign someplace else, or conveying the same text or picture by other
means. Precisely because of their location, such signs provide information about the
identity of the 'speaker.' " Id. at 56. The Court also noted that "[r]esidential signs are
an unusually cheap and convenient form of communication . . . [that] may have no
practical substitute." Id. at 57.
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whether the restriction is content-neutral or content-based.21 The government may
impose content-neutral time, place, or manner restrictions on protected speech if the
restrictions "are narrowly tailored to serve a significant governmental interest, and [if]
they leave open ample alternative channels for communication of the information."22
Content-based restrictions are constitutional if the statute or ordinance is "tailored to
serve a compelling state interest and is narrowly drawn to achieve that end."23
Trask alleged that the actions of the Borough in applying the ordinance to
her were "an overbroad and unconstitutional application of the ordinance that had the
effect of curtailing her speech" and that "fear of further prosecution kept her from
making any modifications or performing any upkeep." Assuming that her allegations are
true, as we must when evaluating a Rule 12(b)(6) motion to dismiss, Trask alleged a set
of facts consistent with stating a claim that her speech - a message displayed on private
property - was protected.24
Trask also alleged facts consistent with a claim that the Borough's
application of the ordinance to her did not serve any significant governmental interest
given the Borough's initial position, confirmed by the superior court, that the ordinance
21 Crawford v. Lungren, 96 F.3d 380, 384 (9th Cir. 1996) (The "principal
inquiry" in determining whether a regulation is content-neutral or content-based "is
whether the government has adopted [the] regulation . . . because of [agreement or]
disagreement with the message it conveys. As a general rule, laws that by their terms
distinguish favored speech from disfavored speech on the basis of the ideas or views
expressed are content-based.") (citing Turner Broadcasting Sys., Inc. v. FCC, 512 U.S.
622, 642 (1994)).
22 Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (internal
quotations omitted).
23 Crawford, 96 F.3d at 384 (internal quotations omitted).
24 E.g., City of Ladue, 512 U.S. at 48 (explaining that "signs are a form of
expression protected by the Free Speech Clause").
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did not apply to Trask's sign at all. In a letter to the Borough dated August 10, 2005,
Trask requested written confirmation that she did not need a permit for the message on
her roof. The Borough responded in writing that Trask did not need a permit. Trask
painted the sign on her roof. Trask's neighbors, who lived uphill and adjacent to Trask's
property, complained to the Borough.25 After this complaint, the Borough changed its
position on whether Trask's message was a sign.
In addition, in determining that the ordinance did not apply to Trask's
message, the superior court found that the ordinance was meant to regulate only
commercial signs, not residential signs. The court also found that Trask's message
appeared to be "the only non-commercial 'sign' to have ever been an issue for the
[Borough]." Trask's factual allegationsare consistent with a constitutional violation and
sufficient to overcome the Borough's motion to dismiss.
Trask must also allege facts consistent with stating a claim that the Borough
is responsible for that violation. To show municipal liability, a litigant must
"demonstrate that, through its deliberate conduct, the municipality was the 'moving
force' behind the injury alleged."26 When a litigant claims that "a particular municipal
25 The contentious early history between Trask and her neighbors was
described in Lybrand v. Trask, 31 P.3d 801, 802 (Alaska 2001). After fire damaged the
Lybrand's home, uphill and adjacent to Trask's property, the Lybrands rebuilt their
home. Debris fell from their property onto Trask's property. The parties were unable
to resolve their dispute amicably. Trask painted the following Biblical passages in large
print on her roof: " 'DO UNTO OTHERS,' 'LUK 6:31 MAT 7:12 19:19,' 'LOVE THY
NEIGHBOR,' 'BY THIER [sic] (DEEDS) YE SHALL KNOW THEM,' 'MAT 7:20.' "
George Lybrand sought a superior court injunction ordering Trask to remove the
message. Elizabeth Lybrand sought damages for intentional infliction of emotional
distress, claiming Trask painted the message for vexatious and retaliatory purposes.
26 Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 404 (1997) (emphasis in
original).
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action itself violates federal law, . . . resolving these issues of fault and causation is
straightforward."27
Trask expressly alleged that the Borough's enforcement of the ordinance
against her violated her First Amendment right to free speech. This claim is clear and
straightforward. Taking Trask's allegation as true, she has successfully set forth facts
stating a claim that the Borough is responsible for the constitutional violation.28
3. Imbler v. Pachtman does not confer immunity on the Borough.
The Borough argues that it is entitled to absolute immunity from Trask's
claim under the holding in Imbler v. Pachtman.29 But Imbler does not apply to this case
because it provides that prosecutors, not municipalities, are absolutely immune, and
addresses a malicious prosecution claim, not a free speech claim.30 The Borough's
argument that "[t]he prosecution of a violation of an ordinance is not actionable under
§ 1983" is also inapplicable to this case. The Eighth Circuit case upon which the
Borough relies provides that "an action for malicious prosecution by itself is not
27 Id. (emphasis in original).
28 Christensen, 554 F.3d at 1279-80 (determining that plaintiff's arguments
that "[t]he challenged ordinances . . . are not narrowly tailored and violate the First
Amendment . . . [and that] ordinances as applied violate the constitutional rights of
plaintiff" to engage in protected activity were "sufficient to establish a claim of
municipal liability" because "[i]f a governmental entity makes and enforces a law that
is unconstitutional as applied it may be subject to liability under § 1983.") (citations
omitted).
29 Imbler v. Pachtman, 424 U.S. 409 (1976).
30 Id. at 422-23.
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punishable under § 1983 . . . ."31 But Trask is not claiming malicious prosecution; she
is claiming violation of the First Amendment, which is actionable under § 1983.32 The
Supreme Court has clearly stated that "municipalities have no immunity from damages
liability flowing from their constitutional violations . . . ."33
31 Pace v. City of Des Moines, 201 F.3d 1050, 1055 (8th Cir. 2000) (internal
alterations omitted) (emphasis added).
32 Federal Civil Rights Act, 42 U.S.C. § 1983 (1976) provides in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . subjects, or
causes to be subjected, any citizen of the United States . . . to
the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or other
proper proceeding for redress.
33 Owen v. City of Independence, Mo., 445 U.S. 622, 657 (1980).
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4. Trask alleges sufficient injury to sustain a § 1983 claim.
Trask has asserted an actionable § 1983 claim, and in order to obtain relief
under § 1983, she does not have to allege any specific damages or injury. A litigant may
recover nominal damages for a § 1983 claim for violation of First Amendment rights
"even without proof of actual injury."34 Especially at the pleading stage, a litigant need
not show a complete chilling of First Amendment rights; it is sufficient for a litigant to
allege facts showing that "an official's acts would chill or silence a person of ordinary
firmness from future First Amendment activities."35 The litigant does not have to show
that her speech was "actually inhibited or suppressed."36 Because Trask has alleged facts
sufficient to state a claim under § 1983, it was error to dismiss Trask's counterclaim.
Trask's § 1983 claim is remanded for further proceedings.
C. Attorney's Fees
The superior court awarded Trask attorney's fees under Civil Rule 82(b)(2),
which provides that "the prevailing party in a case resolved without trial [shall receive]
20 percent of its actual attorney's fees which were necessarily incurred." She argues it
was error to not award her full reasonable fees under Civil Rule 82(b)(3).
Because we are reversing the superior court's dismissal of Trask's § 1983
claim and remanding to the superior court for further proceedings consistent with this
opinion, we vacate the award of Civil Rule 82 attorney's fees. Because we vacate the
award, we need not decide whether it was error to deny Trask's claim for enhanced Civil
Rule 82(b)(3) attorney's fees. In light of the foregoing analysis, we note that if Trask
34 Yniguez v. Arizonans for Official English, 42 F.3d 1217, 1243 (9th
Cir. 1994).
35 Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th Cir.
1999) (internal citations omitted).
36 Id. (internal citations omitted).
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prevails on her § 1983 action, she may be entitled to attorney's fees under 42 U.S.C. §
37
1988(b).
IV. CONCLUSION
We REVERSE the superior court's dismissal of Trask's § 1983 claim
because Trask had standing to assert a § 1983 claim and she alleged a set of facts stating
a claim that the Borough violated her right to free speech. We also VACATE the
attorney's fees award and REMAND to the superior court for further proceedings
consistent with this opinion.
37 42 U.S.C. § 1988(b) (2000) provides: "In any action or proceeding to
enforce a provision of section[] . . . 1983 . . . of this title . . . the court, in its discretion,
may allow the prevailing party . . . a reasonable attorney's fee as part of the costs . . . ."
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