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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Lance Pruitt v. State of Alaska, Division of Elections, and Lt. Gov. Kevin Meyer and Director Gail Fenumiai, in their Official Capacities and Elizabeth Hodges Snyder, Intervenor (3/24/2023) sp-7644

Lance Pruitt v. State of Alaska, Division of Elections, and Lt. Gov. Kevin Meyer and Director Gail Fenumiai, in their Official Capacities and Elizabeth Hodges Snyder, Intervenor (3/24/2023) sp-7644

         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@akcourts.gov.  



                    THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



LANCE  PRUITT,                                                 )  

                                                               )   Supreme Court No. S-18191  

                                                                                                  

                             Appellant,                        )  

                                                               )   Superior Court No. 3AN-20-09661 CI  

                                                                                                                        

          v.                                                   )  

                                                                                      

                                                               )   O P I N I O N  

                                                      

STATE OF ALASKA, OFFICE OF LT.                                 )  

                                                                                                     

                                                            

GOVERNOR, and KEVIN MEYER, in                                  )   No. 7644 - March 24, 2023  

                                                

an official capacity, DIVISION OF                              )  

                                                          

ELECTIONS, and GAIL FENUMIAI, in                               )  

                 

an official capacity,                                          )  

                                                               )  

                             Appellees,                        )  

                                                               )  

                                          

ELIZABETH A. HODGES SNYDER,                                    )  

                                                               )  

                             Intervenor-Appellee.              )  

                                                               )  



                                                                                                   

                   Appeal from the Superior Court of the State of Alaska, Third  

                                                                                   

                   Judicial District, Anchorage, Josie Garton, Judge.  



                                                                                               

                   Appearances:  Stacey C. Stone, Holmes Weddle & Barcott,  

                                                                                                        

                   P.C., Anchorage, for Appellant.  Holly C. Wells, Jennifer C.  

                                                                                                       

                   Alexander,  and  Zoe  A.  Danner,  Birch  Horton  Bittner  &  

                                                                                                       

                   Cherot,  Anchorage,  for  Intervenor-Appellee.                          Notice  of  

                                                                                             

                   nonparticipation  filed  by  Laura  Fox,  Assistant  Attorney  

                                                                                              

                   General, Anchorage, and Treg R. Taylor, Attorney General,  

                                     

                   Juneau, for Appellees.  



                                                                                             

                   Before:           Winfree,        Chief      Justice,      Maassen,         Carney,  

                                                             

                   Borghesan, and Henderson, Justices.  


----------------------- Page 2-----------------------

                                  

                  CARNEY, Justice.  



I.       INTRODUCTION  



                  After narrowly losing an election  a candidate brought  an election contest  



alleging  that  the  Division  of  Elections  had  behaved  improperly  and  allowed  some  voters  



to  cast  ballots  without  meeting  constitutional  and  statutory  residency  requirements.   The  



superior   court   affirmed   the   Division's   certification   of   the   election   in   favor   of   the  



opposing  candidate  and  dismissed  his  suit.  



                  The winning  candidate moved for  attorney's fees and costs, alleging that  



certain  claims  made  in  the  election  contest  were  frivolous  or  in  bad  faith.   The  superior  



court   agreed   and   awarded   the   winning   candidate   full  attorney's   fees   and   costs   in  



connection with  those claims.  The losing candidate appeals,  claiming  protection  from  



an adverse   attorney's   fees   award   as   a   constitutional   claimant  per  AS   09.60.010,   and  



arguing  that  the  superior  court  failed  to  follow  proper  procedure  for  imposing  fees  and  



costs  as  sanctions.  



                  We  conclude  that  the  unsuccessful  candidate's  constitutional  claims  were  



not  frivolous  or  in  bad  faith.   But  -  to  the  extent  the  superior  court's  award  of  attorney's  



fees  and costs  was  intended  as  a  sanction  for  violating  court  rules  -  the unsuccessful  



candidate   is   not   exempt   from   the   imposition   of   such   sanctions   after   notice   and   an  



opportunity  to  be  heard.   We  therefore  reverse  the  award  of  attorney's  fees  and  costs  and  



remand   for   further   proceedings   addressing   whether   sanctions   could   be   awarded   for  



violations  of  court  rules.  



II.      FACTS  AND  PROCEEDINGS  



                  A.      Election  Contest  



                  Elizabeth    Snyder   narrowly   defeated   incumbent   Lance   Pruitt   in   the  



November  2020  general  election  in  House  District  27.   After  the  results  were  confirmed  



                                                       -2-                                                  7644
  


----------------------- Page 3-----------------------

                                                                                                                   1  

in  a  recount,  Pruitt  brought  an  election  contest  under  AS  15.20.540  and  15.20.550.   He  



alleged  that  the  Division  had  failed  to  fulfill  its  responsibility  to  ensure  a  fair  election  in  



a  number   of  ways,   including  by  permitting   at   least   one   individual   to   vote   twice   and  



allowing   individuals  to  vote  who   did  not  meet   constitutional and statutory  residency  



requirements.   Snyder  intervened  in  Pruitt's  action  against  the  Division.  



                   Trial was scheduled for December 22 and 23, 2020.   On December 17 Pruitt  



withdrew  the  double-voting  allegation.   On  the  same  day  Pruitt  requested  that  the  court  



take judicial  notice of certain residency-related documents  regarding 21 voters he alleged  



                                                                                                                 2  

voted   in   House   District   27   but   were   not   residents   during   the   relevant  time.     On  



December   18  Snyder  served  interrogatories a   nd  requests f  or  production  regarding  the  



motion for judicial notice and Pruitt's underlying allegation.   On December 21  - the day  



before  trial  -  Pruitt   objected  to  most   of   Snyder's   discovery  requests   on  the  basis   of  



attorney-client  privilege   and   attorney   work   product,   and   he   refused   to   provide   any  



discovery  beyond  that  previously  provided.   



                   Snyder opposed the motion for judicial notice.   She argued first that judicial  



notice   could   not   be   taken   of   disputed   issues.     Specifically,   she   argued   that   home  



ownership  records  were  not  indisputable  proof  of  residency  because  they  did  not  reflect  

                                   3 - for example, they would not indicate whether the voter had  

a  voter's  residency  intent                                                                                         



          1        See  Pruitt  v.  State,   Off. of  Lieutenant   Governor  (Pruitt  I),  498  P.3d   591  



(Alaska  2021)  for  a  detailed  factual b          ackground.   Here  we  describe  only those  details  

relevant  to  resolving  the  attorney's  fee  dispute.  



         2         The documents were  certified copies of residence records  and property  

                                                                                                               

deeds obtained from the Municipality of Anchorage, the Matanuska-Susitna Borough,  

and  the  Recorder's  Office  at  the  Department  of  Public  Resources.  



         3         See  AS   15.05.020   (explaining  that   absence   from   a  place  will  not   defeat  



residency  so  long  as  person  has  intention  to  return).   



                                                           -3-                                                     7644
  


----------------------- Page 4-----------------------

                                                                                                                       

 only temporarily left that district.  She argued that a voter's registration record provided  



                                                                                                                   

the presumptive place of residence for voter residency purposes.   Snyder argued that  



                                                                                                                             

voter residence therefore "is not a fact appropriate for judicial  notice," but is a legal  



                                                                                                                         

conclusion to be  drawn  from factual evidence.   Second, Snyder argued that  Pruitt's  



                                                                                                                               

allegations were "factually incorrect or reasonably  disputed."  Of the 21 people that  



                                                                                                                                

Pruitt alleged had voted improperly, Snyder claimed that 13 had not actually voted in the  



                                                                                                                                

district, 2 had moved within the same district and thus voted properly; and whether the  



                                                                                                                                

remaining 6 had lost their voter residency was unclear.  Snyder also urged the court not  



                                                                                                                           

to consider Pruitt's residency challenge, asserting that it should have been raised during  



                                                                                                                        

the voting or recount process  and that considering it now would  disrupt the election  



result.  



                                                                                                                           

                     On the same day Snyder filed her opposition, Pruitt withdrew the voting  



                                                                                                                             

allegations against all but the six voters whose votes had been counted but whose voter  



                        

residency was unclear.  



                                                                                                                             

                     Snyder  moved  to  dismiss  Pruitt's  suit  pursuant  to  Alaska  Civil  Rule  



                                                                                                                     

 12(b)(6) for failure to state a claim; the superior court granted her motion on December  



                                                                                                                 

22.  The court had dismissed the motion for judicial notice on December 21 given that  



                                                                                                                                  

"[v]oter residency is not  a fact subject to judicial  notice."   On December 23, after it  



                                                                                                                                

dismissed the election contest, it also dismissed as moot Pruitt's updated motion  for  



                                                                                                                              

judicial notice that had withdrawn some of the voters.  The superior court issued a final  



                                                                                                                               

judgment declaring Snyder the winner, and Pruitt appealed the dismissal of his claim that  



                                                                                                                                 

the Division had committed malconduct.  We concluded the superior court had erred by  



                                                                                                                               

dismissing  the  case  on  the  ground  that  Pruitt  had  failed  to  state  a  claim,  but  we  



                                                                -4-                                                         7644
  


----------------------- Page 5-----------------------

                                                                                                                         4  

nonetheless  affirmed  dismissal  because  Pruitt's  claims  could  not  succeed  on  the  merits.   

We  also  affirmed  the  superior  court's  judgment  pronouncing  Snyder  the  winner.5  



         B.        Motion  For  Attorney's  Fees  



                   Snyder  moved  for  attorney's  fees and costs  as  the  prevailing  party.    She  



sought   enhanced   fees   as   provided   by   Alaska   Civil   Rule   82(b)(3)   only   for   work  



addressing  the  "frivolous  pleadings  or  claims"  raised  by  Pruitt  that  she  alleged  were  "at  



best,  unreasonable,  and  at  worst,  brought  in  bad  faith."   She  sought  "all  or  substantially  



all"  attorney's  fees  incurred  responding  to  Pruitt's  double-voting  allegation,  responding  



to   his   motion   for   judicial   notice,  and   preparing   discovery   requests   related   to   the  



residency   allegations.    Snyder   stated   that her   actual   reasonable   attorney's   fees   were  



$122,548.67 and she requested $20,782.50.   Snyder calculated that the requested amount  



was  less than 17% of the total fees incurred  in the action, rather  than the full 20% that  

she  could  have  sought  by  statute.6  



                   Pruitt  opposed  Snyder's  motion  for  attorney's  fees  and  costs,  asserting  he  

was  a  constitutional  claimant  protected  by  AS  09.60.010  from  an  adverse  fee  award.7  

                                                                                                                            



         4         Pruitt  I,  498  P.3d  at  595.  



         5         Id.  at  595,  608.  



         6         See  Alaska  R.  Civ.  P.  82(b)(2).  



         7         AS  09.60.010(c)(2)  provides  that  



                   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  .  .  .  may  not  order  a  claimant  to  pay  the  attorney  fees  of  

                   the     opposing        party      devoted        to    claims       concerning  

                   constitutional   rights   if   the   claimant   . . . did   not   prevail   in  

                   asserting  the  right,  the  action  or  appeal  asserting  the  right  was  

                                                                                                       (continued...)  



                                                           -5-                                                     7644
  


----------------------- Page 6-----------------------

Pruitt  contended  that because he  made  a  nonfrivolous constitutional  claim and did not  



have   an   economic   incentive   to  bring   the   election   contest,   he   met   the   statute's  



requirements  to  be  exempt  from  an  award  of  attorney's  fees.  



                    Snyder   disputed   that   Pruitt   met   the   requirements   for   a   constitutional  



claimant.     She   claimed   that   the   action   was   frivolous,   pointing   to  Pruitt's failure   to  



provide  evidence  that  the  Division's  actions  prevented  voters  from  voting,  his  filing  the  



complaint "with total disregard" for the legal grounds required for an election contest,  



and  the  superior  court's  ultimate  dismissal  of  the  case  for  failure  to  state  a  claim.   Snyder  



also  claimed  that  Pruitt  had  an  economic  incentive  to  bring  his  action  because,  as  the  



incumbent,   he   stood   to   lose   his   salary,   per   diem,   and   reimbursement   of   business  



expenses.   



                    The superior court partially granted  Snyder's  motion for  attorney's fees and  



costs.   The  court  recognized  that  "the  strong  public  interest  in  fair  and  honest  elections  



justifies  according  public  interest  litigant  status  to  officeholders  or  candidates  pursuing  

                                             8  It therefore concluded that Pruitt "may not be ordered  

a  claim  of  error  in  an  election."                                                                             



to pay attorney's fees unless the action was frivolous." Relying on Alaska Building, Inc.  

                                                                                                                         



(...continued)  

                    not  frivolous,  and  the  claimant  did  not  have  sufficient  

                                                                                             

                    economic incentive to bring the action or appeal regardless of  

                                                                                                         

                    the constitutional claims involved.  

                                                         



          8         See alsoMun. ofAnchorage v. Citizensfor Representative Governance, 880  

                                                                                                                          

P.2d  1058,  1062-63 (Alaska  1994) (citing  strong  public  interest  in  fair  and  honest  

                                                                                                                     

elections when concluding that normal compensation of elected office is not sufficient  

                                                                                               

economic incentive to defeat political candidate's status as public interest litigant).  The  

                                                                                                                          

superior court recognized that amendments to AS 09.60.010 abrogated the common law  

                                                                                                                          

public interest exception to Rule 82 in 2003, but the economic incentive prong and case  

                                                                                                                         

law interpreting it remained applicable.  See Alaska Conservation Found. v. Pebble Ltd.  

                                                                                                                         

P'ship, 350 P.3d 273, 280-81 (Alaska 2015).  

                                                                    



                                                             -6-                                                       7644
  


----------------------- Page 7-----------------------

                                             9  

v.   Legislative  Affairs  Agency ,   the   court   noted   that   claims   are   not   frivolous   merely  



because  they  have  "little  reasonable  likelihood  of  success"  or  seek  to  modify  or  establish  



new law.   Rather,  a  claim  can only  be  considered  frivolous  "where  a  party  exhibits  an  



improper  or  abusive  purpose,  or  acts  in  bad  faith."   And  the  court  recognized  that  it  must  



be  cautious  when  finding  frivolousness  to  distinguish  an  "abuse  of  the  judicial  process"  



                                       10  

from  "creative  advocacy."                



                    The   court   focused   on   the   three   grounds   upon   which   Snyder   based her  



attorney's   fees  request.   After   apparently   agreeing  with  Pruitt  that  "generally   .   .   .  his  



lawsuit  was  non-frivolous,"  the   court  noted   that   Pruitt   "d[id]  not   address   [Snyder's]  



claim  that  he  failed  to  respond  adequately  to  her  discovery  requests."   It  then  considered  



the  expedited  schedule  of  election  contests  and  the  important  public  interests  at  stake  and  



found  that,  by  waiting  until  the  day  before  trial  to  respond  to  Snyder's  discovery  requests  



and   failing  to   argue  that  he   actually   "met  his discovery   obligations   or   acted   in   good  



faith,"  Pruitt  had  acted  in  bad faith.  The  court  concluded  that  by  acting  in  bad  faith,  



Pruitt  had  brought  a  frivolous  action  and  was  not  entitled  to  protection  from  attorney's  

                                                                                   11   The court awarded Snyder  

fees  as  a  constitutional  claimant  under  AS  09.60.010(c).                                                      



"actual attorney's fees for preparation of her interrogatories and requests for production."  

                                                                                                                                 



                    The superior court also found that Pruitt's "argument that the court should  

                                                                                                                      



take judicial notice of voter[s]' non-residency was unsupported by existing law or any  

                                                                                                                           



argument, however creative or unlikely to succeed, that the law should be modified."  It  

                                                                                                                              



          9         403  P.3d   1132  (Alaska  2017).   



          10        Citing  id.  at   1139.  



          11        The   court,   citing  Alaska  Building,  Inc.   v.  Legis.  Affs.  Agency ,  403   P.3d  



1132, 1147 (Alaska  2017), concluded that  "where  a  party  .  .  .  acts  in  bad  faith,  a  claim  

may  be  deemed  frivolous."   



                                                             -7-                                                        7644
  


----------------------- Page 8-----------------------

                                                                                                                                  

observed that Pruitt had not cited any law governing voter residency or why it should be  



                                                                                                           

modified, or explained how the court could use property transaction records as a basis  



                                                                                                                                

for taking judicial notice of voter residency.  The court found that Pruitt's argument was  



                                                                                                                 

not "creative advocacy" but rather "an abuse of the judicial process" and, consequently,  



                                                                                                                            

frivolous.  It awarded Snyder "fees for her legal and factual research and drafting efforts  



                                                                                                                                 

to oppose and respond to  [Pruitt's] motions  for judicial  notice and for review of the  



                                                                        

deeds, foreclosure records, and tax records of voters."  



                                                                                                                           

                     The court denied Snyder's request for fees related to responding to Pruitt's  



                                                                                                                             

double-voting  allegation.                 It  found  that  Snyder  had  not  established  that  the  claim  



                                                          

amounted to an abuse of the judicial process.  



                                                                                                                              

                    Pruitt moved for reconsideration.  He argued that because the action itself  



                                                                                                                 

was not frivolous, the court could not award fees under AS 09.06.010(c).  Alternatively,  



                                                                                                             

Pruitt argued, even if the court could separately consider claims made within the same  



                                                                                                                                 

suit to determine which were protected as constitutional claims, it erred by finding he had  



                                                                                                                                 

failed to respond to discovery or  Snyder's allegations of bad  faith in her motion  for  



                                                                                                                                   

attorney's  fees.            Pruitt  contended  he  had  responded  by  asserting  that  he  was  a  



                                                                                                                           

constitutional claimant who acted in good faith.  Additionally, Pruitt noted that Snyder  



                                                                                                                                

never filed a motion to compel discovery, so to the extent the court's award of fees and  



                                                                                             

costs could be considered discovery "sanctions," they were inappropriate.  



                                                                                                                       

                    After granting reconsideration, the superior court issued a final judgment  



                                                                                                                                  

granting Snyder partial attorney's fees of $17,465.00 and actual costs of $3,751.31.  



                                                                                                                                 

                     Pruitt appeals. He argues that the superior court erred by awarding fees and  



                                                                                                                                 

costs to Snyder because he is a constitutional claimant and, that if the court imposed the  



                                                                                                                                

fees and costs as sanctions, the court erred by failing to follow proper procedures.  We  



                                                                                                                        

agree that Snyder was not entitled to Rule 82 attorney's fees and costs for work opposing  



                                                                                                                                       

Pruitt's nonfrivolous constitutional claim; we therefore vacate the attorney's fees award.  



                                                                -8-                                                          7644
  


----------------------- Page 9-----------------------

And  we  remand  for  appropriate  application  of  the  sanctions  rules  and  procedures.  



III.	     STANDARDS  OF  REVIEW  



                    "Interpretation  of  the  constitutional  litigant  exception  to  attorney's  fees  is  



                                                                                                         12  

a  question  of  law,  which  we  review  using  our  independent  judgment."                                "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  intent  of  the  drafters.'  "13  



IV.	      DISCUSSION  



                                                                                                                    

          A.	       Alaska Statute 09.60.010 Protects Constitutional Claimants Asserting  

                                                                                                                           

                    Nonfrivolous  Constitutional  Claims From  Rule  82 Attorney's  Fees  

                    Awards.  



                                                                                                                    

                    Rule 82 generally governs the award of attorney's fees, entitling prevailing  



                                                                                                                                14  

                                                                                                     

parties to a certain percentage of their fees "[e]xcept as otherwise provided by law."                                              



                                                                                                                    

Rule  82(b)(3) allows the  court to  vary an award  based  on  certain  factors  including  



                                                                                                                                15  

                                                                                                                                    

"vexatious  or  bad  faith  conduct"  and  "other  equitable  factors  deemed  relevant." 



                                                                                                                              

Vexatious or bad faith conduct can be determined directly or through inference and can  



                                                                                    16  

                                                                              

serve as a basis for a court to award full attorney's fees. 



                    Alaska   Statute   09.60.010   establishes   certain   exceptions   to   Rule   82.    In  



          12        Manning  v.  State,  Dep't  of  Fish  &   Game   (Manning  III),  420  P.3d   1270,   



1278  (Alaska  2018)  (citing  Alaska  Conservation  Found.  v.  Pebble  Ltd.  P'ship,  350  P.3d  

273,  279  (Alaska  2015)).  



          13        Oakly Enters.,  LLC  v. NPI,  LLC,  354 P.3d  1073, 1078 (Alaska  2015)  

                                                                                                                         

(quoting Native  Vill. of Elim v. State, 990 P.2d 1, 5 (Alaska 1999)).  

                                                                                           



          14        Alaska R. Civ. P. 82(a).  

                                                



          15        Alaska R. Civ. P. 82(b)(3).  

                                                



          16        Johnson v. Johnson, 239 P.3d 393, 400-01 (Alaska 2010) (explaining that  

                                                                                                                                    

claim might be "legally or factually so deficient as to reasonably permit an inference of  

                                                                                                                                

vexatious or bad faith litigation conduct").  

                                                 



                                                               -9-	                                                       7644
  


----------------------- Page 10-----------------------

particular,  AS  09.60.010(c)  provides  that   



                    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  

                            

                      . . . .  



                                                                                                            

                     (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.  



                                                                                                                                 

                    Thus, a party who has raised nonfrivolous constitutional claims cannot be  



                                                                                                                                      

required to pay the attorney's fees and costs of opposing those constitutional claims.  



                                                                                                                     

That party, however, may be ordered to pay attorney's fees and costs for a prevailing  



                                                                                                          17  

                                                                                                   

opponent's work on other, nonconstitutional claims in the same case. 



                     To determine if a claim is frivolous, the court must apply an "objective  

                                                                                                                    



standard of reasonableness," taking care to avoid stifling "creative advocacy" or the  

                                                                                                                                

pursuit of novel legal theories.18  "In most cases, . . . a claim should not be considered  

                                                                                                                    



frivolous unless the litigant has 'abused the judicial process' or 'exhibited an improper  

                                                                                                                       

or abusive purpose.' "19  

                                 



          17        See  Manning  v.  State,  Dep't  of  Fish  &  Game  (Manning  II),  355  P.3d  530,  



539-40  (Alaska  2015).  



          18        Manning  III,  420  P.3d  1270,  1283-84  (Alaska  2018)  (citing  Alaska  Bldg.,  



Inc.  v.  Legis.  Affs.  Agency ,  403  P.3d   1132,   1136-39  (Alaska  2017)).  



          19        Id. (quoting Alaska Bldg., Inc., 403 P.3d 1137) (explaining frivolousness  

                                                                                                                

analysis is akin to that for imposing Rule 11 sanctions).  

                                                                     



                                                               -10-                                                         7644
  


----------------------- Page 11-----------------------

                   Pruitt  argues  that  he  is  protected  as  a  constitutional  claimant  based  on  the  



overall purpose of  his "action or appeal."   But AS 09.60.010(c)  "requires individually  



determining   whether   each   claim   in   [the   plaintiff's]   initial   complaint  and   proposed  



amended  complaint"  was  a  constitutional  claim  and  if  it  "was  frivolous[,]  and  awarding  

fees  only for  the  work  that  was  attributable to  any  frivolous claim(s)."20  The  superior  



court  correctly  determined  that  it  should  analyze  each  of  Pruitt's  claims  separately  to  



establish  which  were  constitutional  claims  and  which,  if  any,  were  frivolous.  



                   To  determine  whether  a  claim  is  constitutional,  we  have  explained  that  one  



must  look  not  at  the  "source  of  the  rule  of  law,"  but  instead at the "source  of  the  right  



              21  

asserted."        For  instance,  while  voter  residency  requirements  are  defined  by  statute,  the  

right  to  vote  itself  is  a constitutional right.22  Thus, in a case where voters asserted that  

                                                                                                                         



a voter residency statute deprived them of the right to vote, we determined that the claims  

                                                                                                                      

were properly classified as constitutional claims.23  

                                                              



                   The  superior  court  determined  Pruitt's  claim regarding  voter  residency  was  



a  constitutional  claim.   We  agree  because  the  source  of  his  claim  that  only  those  eligible  



to  vote  should  be  permitted to cast a     ballot i  s i  n  a  right  guaranteed  by  a  constitutional  



provision.   Pruitt  claimed  that  AS  15.05.010(3),  a  statute  requiring  voters  to  reside  in  the  



district   for   at   least   30  days   before   the   election,   had   been   violated.     That   statutory  



requirement  echoes  article  5,  section   1  of  the  Alaska  Constitution:   "A  voter  shall  have  



          20       Id.  at 1283 (outlining claim-by-claim frivolousness  analysis);  see also  Lake  



& Peninsula  Borough  Assembly  v.  Oberlatz,  329  P.3d  214,  227  (Alaska  2014)  (applying  

claim-by-claim  analysis  to  determine  which  claims  were  constitutional).  



          21        Oberlatz, 329 P.3d at 226.  

                                                    



          22       Id.  



          23       Id. at 227.  

                             



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----------------------- Page 12-----------------------

been,  immediately  preceding  the  election,  a  thirty  day  resident  of  the  election  district  in  



which  he  seeks  to  vote  .  .  .  ."   The  superior  court  correctly  found  that  Pruitt's  claim  seeks  



                                                                                                     24  

to  enforce  a  constitutional  requirement  and  is  a  constitutional  claim.                          



                    But  it  was   error  to   characterize  Pruitt's  motion  practice   and  response  to  



discovery  related  to  the  voter  residency  claim  as  "claims"  in  themselves.   The  statute  



requires  a  court  to  determine  whether  a  claim  is  constitutional,  expressly  referring  to  "the  

attorney  fees  of  the  opposing  party  devoted  to  claims  concerning  constitutional  rights."25  

                                                                                                                                  



The  court's  next  step  is  to  determine  whether  the  claim  is  frivolous.   If  the  constitutional  



claim  is  not  frivolous,  the  constitutional  claimant  is  protected  from  an  adverse  award  of  



attorney's  fees.   Once  a  party  has  raised  a  nonfrivolous  constitutional  claim,  Rule   82  



attorney's   fees   can   be   awarded   only   for   "work   defending    solely   against   non- 



constitutional   claims,"   not   for   "work   on   procedural   issues involving   the   merits   of   a  

                                26   Pruitt's  motion  practice  and response  to  discovery were  in  

constitutional   claim."                                                                                                     



furtherance of his constitutional claim that nonresidents had voted in the election district.  

                                                                                                                                  



Because that claim was based on a right whose source is in the constitution and is not a  

                                                                                                                               



frivolous claim, AS 09.60.010(c) prohibits the award of attorney's fees under Rule 82  

                                                                                                            



          24        See  AS  09.60.010(c)  (defining  a  constitutional  claim  as  "concerning  the  



establishment,  protection,  or  enforcement  of  a  right  under  the  United  States  Constitution  

or   the   Constitution   of   the   State   of   Alaska");   see   also   Oberlatz,  329  P.3d   at   226  

(explaining  AS  09.60.010(c)'s  language).   



          25        AS 09.60.010(c)(2).  

                          



          26        Manning II, 355 P.3d 530, 540 (Alaska 2015).  As a further measure of  

                                                                                                                              

protection  afforded to constitutional claims, the party  asserting such a claim benefits  

                                                                                                                     

from  a  presumption  that  the  opposing  party's  procedural  work  was  related  to  the  

                                                                                                                            

constitutional claims.  To overcome the presumption, the party seeking the attorney's  

                                                                                                                  

fees award must provide "sufficiently detailed documentation" identifying what work  

                                                                                                                         

was done for constitutional and nonconstitutional claims in order to enable a superior  

                                                                                                                     

court to make correct determinations of the allowable awards.  Id.  

                                                                                              



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----------------------- Page 13-----------------------

to  Snyder  for  fees  and  costs  incurred  in  relation  to  that  claim.27  



          B.        Sanctions  May  Be  Imposed  On  Constitutional  Claimants.  



                    Yet   a   constitutional   claimant   is   not   immune   from   the   rules   that   govern  



proceedings.    A   claimant   that   may   have   otherwise   been   protected   from   Rule   82  



attorney's  fees  by  AS  09.60.010(c)  can  be  sanctioned  by  the  court  when  the  claimant  has  



engaged   in   sanctionable   conduct   in   litigation;   the   court   may   order the   party   to   pay  



attorney's   fees  and   costs   as   sanctions   pursuant   to   civil   rules.     The   purpose   behind  



AS 09.60.010(c)  is to  prevent  "chilling"  constitutional  litigation, but the requirement that  



the  claim  be  "not  frivolous"  is  intended  to  protect  against  situations  where  a  "litigant  has  



                                                                                                                  28  

 'abused  the  judicial  process'  or  'exhibited  an  improper  or  abusive  purpose.'  "                            When  



the  court  determines  that  a  litigant,  including  a  constitutional  claimant,  "has  'abused  the  



judicial  process'  or  'exhibited  an  improper  or  abusive  purpose,'  "  the  court  is  authorized  



          27        See  Alaska  Conservation  Found.  v.  Pebble  Ltd.  P'ship,  350  P.3d  273,  280- 



 81  (Alaska  2015)  (holding  that  AS  09.60.010  controls  attorney's  fees  for  constitutional  

claims);  Meyer   v.   Stand  for   Salmon,   450   P.3d   689,   693   (Alaska   2019)   (Winfree,   J.,  

concurring)  ("[P]revailing  defendants  should  not  be  entitled  to  an  award  of non-statutory  

fees   against  claimants   for   any   work   devoted   in   any   reasonably   connected   way   to  

claimants'  constitutional  claims."  (Emphasis  added));  see  also  In  re  Vernon  H.,  332  P.3d  

565,   576   (Alaska   2014)   ("[A]s   a   general   proposition[,]   .   .   .   '[i]f   a   specific   statutory  

scheme  for  attorney's  fees  exists,  Civil  Rule  82  does  not  apply'  because  fees  would  thus  

be   'otherwise   provided   by   law'   within   the   meaning of   Civil   Rule   82(a).")   (quoting  

Enders  v.  Parker,  66  P.3d   11,   17  (Alaska  2003)).  



          28        Manning III, 420 P.3d at 1284 (internal citation omitted); see also Alaska  

                                                                                                                      

Bldg., Inc. v. Legis. Affs. Agency, 403 P.3d 1132, 1138 (Alaska 2017) (explaining that  

                                                                                                         

Rule 11 sanctions are "designed to deter parties from abusing judicial resources, not from  

                                                                                                                         

filing  [claims]" (alteration  in  original)).   Rule  82 in part  seeks to  effectuate  similar  

                                                                                                                     

purposes.        See  Keenan  v. Meyer,  424  P.3d  351,  362-63  (Alaska  2018)  ("We  have  

                                                                                                                        

explained that full fee awards against bad faith litigants are unlikely to deter good faith  

                                                                                                                         

claims, and an enhanced award for bad faith conduct helps compensate the prevailing  

                                                                                                                 

party for effort and expense that may have been avoidable had the other party acted in  

                                                                                                            

good faith.").  

          



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----------------------- Page 14-----------------------

                             29  

to  impose  sanctions.            



                   Court  proceedings  are  governed  by  rules  that  apply  to  all  litigants  and  give  



direction  to  judicial  officers.   Alaska  Civil  Rule  11  requires  those  making  representations  



to  the  court  to  meet  certain  standards  and  provides:  



                   By presenting to the court a  . . . motion, . . . an attorney . .  .  

                   certifies    that    to    the    best    of    the    person's    knowledge,  

                   information,  and  belief,  formed  after  an  inquiry  reasonable  

                   under  the  circumstances:  



                   (1) it  is not being presented for any improper purpose,  such  

                   as  to  harass,  cause  unnecessary  delay,  or  needlessly  increase  

                   the  cost  of  litigation;  



                   (2)   the   claims,   defenses,   and   other  legal   contentions   are  

                   warranted  by  existing  law  or  by  a  nonfrivolous  argument  for  

                   extending,   modifying,   or   reversing   existing  law   or   for  

                   establishing  new  law;  [and]  



                   (3)   the   factual   contentions   have   evidentiary   support   or,   if  

                   specifically  so  identified,  will  likely  have  evidentiary  support  

                   after   a   reasonable   opportunity   for   further   investigation   or  

                   discovery  .  .  .  .[30]  



                   Alaska Civil Rule 95 permits the court to impose sanctions for violation of  

                                                                                                                           



Rule 11.  A court may "withhold or assess costs or attorney's fees" against "offending  

                                                                                                              



attorneys  or  parties,"  "after  providing  reasonable  notice  and  an  opportunity  to  be  

                                                                                                                          



          29       Nothing  in  AS  09.60.010  is  intended  to  exempt  litigants  from  the  rules  and  



reasonable  limits  of  the  judicial  process.    Cf.   Thomas v. Croft,  614  P.2d  795,  798-99  

(Alaska   1980)  (affirming  equitable  power  of  superior  court  to  award  prevailing  party  

attorney's  fees  against  co-prevailing  state  party,  even  in  absence  of  court  rule  or  statute  

authorizing   such   award,   because   lawsuit   would  not  have   happened   but   for   state  

malconduct  in  elections).   



          30       Alaska R. Civ. P. 11(b).  

                                              



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----------------------- Page 15-----------------------

           31  

heard."          The  rule   also   allows   for   a   fine,  not  to   exceed   $50,000,   against   an   attorney  



                            32  

violating  the  rules.           



                    Alaska   Civil   Rule   37   authorizes   sanctions   for   failure   to   cooperate   in  



discovery.    It   provides   that   a   court may sanction   "[a]   party   that   without   substantial  

justification fails to  disclose information  required by [the  discovery  rules],"33 but only  



"on  motion and after affording  an  opportunity  to  be  heard."34  

                                                                                               One  of  the  enumerated  

sanctions is attorney's fees.35  Rule 37 also provides that a court can require a party or  



attorney   to   pay   "the   reasonable   expenses,   including   attorney's   fees,"   caused   by  



"unreasonable,   groundless,   abusive,  or   obstructionist   conduct   during   the   course   of  

discovery,"  without  requiring  a  motion  but  still  requiring  "opportunity  for  hearing."36  



                    The superior court's order granting attorney's fees implies it determined  

                                                                                                                  



that Pruitt's motion  and conduct in connection with  discovery merited  sanctions for  

                                                                                                                              



failure to comply with Rule 11's requirements for representations to the court and Rule  

                                                                                                                            



37's discovery obligations.  The superior court granted Snyder attorney's fees and costs  

                                                                                                                           



for Pruitt's failure to comply with discovery (after concluding it was done in bad faith)  

                                                                                                                           



and for his request to take judicial notice (because it was unsupported by existing law or  

                                                                                                                                



argument, the court found his motion for judicial notice to be an abuse of judicial process  

                                                                                                                        



          31        Alaska  R.  Civ.  P.  95(a).   



          32        Alaska  R.  Civ.  P.  95(b).  



          33        The   relevant   rules   are   Rule   26(a)   (governing   required   disclosures)   and  



Rule  26(e)(1)  (governing  supplementation  of  disclosures  and  responses).   Alaska  R.  Civ.  

P.  37(c)(1).  



          34        Alaska R. Civ. P. 37(c)(1).  

                                                              



          35        Id.  



          36        Alaska R. Civ. P. 37(g).  

                                                          



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----------------------- Page 16-----------------------

and  therefore  frivolous).   To  support  its  conclusion  that  he  acted  in  bad  faith,  the  court  



noted  Pruitt  failed  to  explain  how  the  court  could  use  property  transaction  records  as  a  



basis  for  taking  judicial  notice  of  voter  residency  and  made  no  argument  "supported  by  



existing   law   or   any   argument,   however   creative   or   unlikely   to   succeed,   that   the   law  



should  be  modified."   The  court  found  that  Pruitt  publicly  accused  at  least   15  voters  of  



improperly  voting  in  the  election  "without  any  basis."   The  superior  court  found  that  the  



motion  to  take  judicial  notice  of  voter  residency  was  "an  abuse  of  the  judicial  process."   



But  rather  than   scheduling   a  hearing,   as  required by Rule   95   and   Rule   11,  the   court  



awarded  Snyder  Rule  82  attorney's  fees  for  Pruitt's  actions.   This  was  error.  



                   The superior  court also found that Pruitt acted in bad  faith by refusing to  



respond  "adequately"  to  Snyder's  discovery  requests  and  thus  violated  discovery  rules.   



It n  oted  that  Pruitt  had  "not  argue[d]  that  he  met  his  discovery  obligations or acted  in  



good   faith  in  responding  to   [Snyder's]  discovery requests."   The  court's   finding  that  



Pruitt  failed  to  comply  with  his  discovery  obligations  is  precisely  the  behavior  that  can  

                                                    37  But instead of proceeding to a sanctions hearing  

be  sanctioned  under  Rule  37(c)  or  (g).                                                                     



pursuant to Rule 37, the court instead awarded Snyder Rule 82 attorney's fees. This, too,  

                                                                                                                      



was error.  

        



                   As Pruitt argues, the  court must  follow the procedures  specified by the  

                                                                                                                      

applicable rules  before  it imposes  sanctions.38                    Chief  among the  requirements  is  an  

                                                                                                                       



          37       We  note  that  the  superior  court  cited  both  Rule  82(b)(3)(G)  and  Rule  37(c)  



in  a  footnote  to  its  order  awarding  attorney's  fees  and  cited  Rule  26  in  another  footnote.   



          38       See  Fox  v.  Grace, 435 P.3d  883,  887  n.15  (Alaska  2018)  ("We  also  take  



this  opportunity  to  remind  courts  that  they  must  follow  the  mandates  of  Alaska  Civil  

Rule  95  before  issuing  a  sanctions  order  pursuant  to  Rule  11,  including  issuing  an  order  

to  show  cause  and  providing  for  the  opportunity  to  be  heard  at  a  hearing.");  Luedtke  v.  

Nabors  Alaska  Drilling,  Inc.,  834  P.2d  1220,  1227-28  (Alaska  1992)  (requiring  superior  

                                                                                                       (continued...)  



                                                          -16-                                                     7644
  


----------------------- Page 17-----------------------

                                   39  

opportunity  to  be  heard.             In  addition,  Rule  37(c)  requires  a  motion  for  sanctions.   The  



failure  to   comply  with  the   governing  rules  requires  us  to  reverse  the   order   awarding  



attorney's fees and to remand to the  superior court for further proceedings if the court  



                                                                 40  

intends   to   impose   sanctions   against   Pruitt.                   The   superior   court   may   receive   such  



evidence  and  argument  on  remand  as  it  deems  appropriate.   



V.        CONCLUSION  



                    We REVERSE the award of attorney's fees and costs against Pruitt and  

                                                                                                                           



REMAND for further proceedings consistent with this opinion.  

                                                                                   



          38        (...continued)  



court  to  clearly  state reasons for  imposing sanctions and  to  provide  opportunity  to  contest  

sanctions  at  a  hearing).  



          39        See Alaska R. Civ. P. 37(c)(1) (authorizing sanctions for failure to follow  

                                                                                                                                  

discovery rules, but requiring motion and opportunity to be heard); Alaska R. Civ. P.  

                                                                                                                              

37(g)  (allowing  sanctions  for  "unreasonable,  groundless,  abusive,  or  obstructionist  

                                                                                                            

conduct" in discovery but requiring opportunity for hearing); Alaska R. Civ. P. 95(a)  

                                                                                                             

(permitting sanctions for Rule 11 violations "after providing reasonable notice and an  

                                                                                                                             

opportunity to be heard").  

                            



          40        See Luedtke,  834 P.2d  at  1227 (Alaska  1992) (explaining we  typically  

                                                                                                                    

remand for entry of findings after opportunity to be heard, though we may reverse where  

                                                                                                                        

no evidence in record supports sanctions); see also Wilson v. Mun. of Anchorage, 977  

                                                                      

P.2d 713, 727 (Alaska  1999) (remanding for proper findings regarding imposition of  

                                                                                                                              

sanction against counsel, where court improperly cited Rule 82 for assessment of fees  

                                                                                                                           

against counsel when Rule does not provide for them).  

                                                                        



                                                             -17-                                                        7644
  

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