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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Vote Yes for Alaska's Fair Share v. Resource Development Council for Alaska, Inc., Alaska Trucking Association, Inc., Alaska Miners Association, Inc., Associated General Contractors of Alaska, Alaska Chamber, and Alaska Support Industry Alliance (12/1/2023) sp-7674
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
VOTE YES FOR ALASKA'S FAIR )
SHARE, ) Supreme Court Nos. S-18044/18063
)
Appellant and ) Superior Court No. 3AN-20-05901 CI
Cross-Appellee, )
) O P I N I O N
v. )
) No. 7674 - December 1, 2023
RESOURCE DEVELOPMENT )
COUNCIL FOR ALASKA, INC., )
ALASKA TRUCKING ASSOCIATION, )
INC., ALASKA MINERS )
ASSOCIATION, INC., ASSOCIATED )
GENERAL CONTRACTORS OF )
ALASKA, ALASKA CHAMBER, and )
ALASKA SUPPORT INDUSTRY )
ALLIANCE, )
)
Appellees and )
Cross-Appellants. )
)
and. )
)
KEVIN MEYER, in his official capacity )
as Lt. Governor of the State of Alaska; )
GAIL FENUMIAI, in her official capacity )
of Director of the Alaska Divisions of )
Elections; and STATE OF ALASKA, )
DIVISION OF ELECTIONS, )
)
Appellees. )
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Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Thomas A. Matthews, Judge.
Appearances: Robin O. Brena and Jon S. Wakeland, Brena
Bell & Walker, P.C., Anchorage, for Appellant. Matthew
Singer and Peter A Scully, Schwabe, Williamson & Wyatt,
P.C., Anchorage, for Appellees Resource Development
Council for Alaska, Inc., et al. Notice of nonparticipation
filed by Katherine Demarest, Assistant Attorney General,
Anchorage, and Treg R. Taylor, Attorney General, Juneau,
for Appellees Lieutenant Governor of the State of Alaska,
Director of the State of Alaska Division of Elections, and the
State of Alaska Division of Elections.
Before: Winfree, Chief Justice, Maassen, Carney, and
Henderson, Justices. [Borghesan, Justice, not participating.]
HENDERSON, Justice.
WINFREE, Chief Justice, with whom CARNEY, Justice,
joins, concurring in part.
INTRODUCTION
A group of trade associations sued the State and a ballot initiative group
seeking to invalidate the State's approval of a ballot initiative petition. The litigation
focused primarily on the constitutionality of a statute limiting the compensation that
may be paid for obtaining signatures on ballot initiative petitions. The superior court
ruled that the statute was unconstitutional and dismissed the trade associations ' claims
that a large number of petition signatures should be invalidated because the statutory
1
compensation limits had been exceeded.
The ballot initiative group then moved for an attorney's fees award against
the trade associations. The ballot initiative group contended that it was a qualified
1 We affirmed the superior court's decision in an earlier appeal. Res. Dev.
Council for Alaska v. Vote Yes for Alaska's Fair Share, 494 P.3d 541, 543-53 (Alaska
2021).
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prevailing constitutional claimant entitled to an award of full reasonable attorney's fees
2
under AS 09.60.010, or at least an award of partial attorney's fees under
3
Alaska Civil Rule 82. The trade associations responded that the ballot initiative group
could not be a constitutional claimant because it was not a "plaintiff, counterclaimant,
cross claimant, or third-party plaintiff," and argued that if the ballot initiative group was
a constitutional claimant, then they were qualified non-prevailing constitutional
4
claimants entitled to protection from an attorney's fees award. The ballot initiative
group responded that the trade associations could not be constitutional claimants
because they had sufficient economic incentive to bring their claim regardless of its
constitutional nature.
The superior court concluded that the ballot initiative group was a
constitutional claimant because its claim was effectively a counterclaim. But the court
also concluded that the trade associations did not have sufficient economic incentive to
bring their claim regardless of its constitutional nature, and they therefore were
constitutional claimants protected from an award of full attorney's fees under
2 AS 09.60.010(c)(1) and (d)(1)-(2) provide that a prevailing party - "as
plaintiff, counterclaimant, cross claimant, or third-party plaintiff in the action" - may
obtain an award of full reasonable attorney's fees devoted to constitutional claims upon
which the party prevailed so long as the party did not have sufficient economic incentive
to bring the claims regardless of their constitutional nature.
3 See Alaska R. Civ. P. 82(a) ("Except as otherwise provided by law or
agreed to by the parties, the prevailing party in a civil case shall be awarded attorney's
fees calculated under this rule.").
4 AS 09.60.010(c)(2) provides that a party - "as a plaintiff,
counterclaimant, cross claimant, or third-party plaintiff in the action" - who brings but
does not prevail on a constitutional claim may be protected from an adverse award of
attorney's fees so long as the constitutional claim was not frivolous and the party did
not have sufficient economic incentive to bring the claim regardless of its constitutional
nature.
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AS 09.60.010. The court nonetheless awarded the ballot initiative group partial
attorney's fees under Rule 82.
The ballot initiative group appeals, effectively limiting its argument to
whether the superior court correctly determined that the trade associations were
qualified constitutional claimants because they did not have a sufficient economic
incentive to bring their claim regardless of its constitutional nature. The trade
associations also appeal, arguing that if they are qualified constitutional claimants, then
the Rule 82 attorney's fees must be vacated.
We affirm the superior court's determination that the trade associations
did not have a sufficient economic incentive to bring their claims. Therefore, in light
of the way the parties litigated the matter, the trade associations are qualified, non-
prevailing constitutional claimants and the Rule 82 attorney's fees award must be
vacated.
FACTS AND PROCEEDINGS
A. Facts
We outlined many of the facts relevant to this appeal in our previous
decision, Resource Development Council for Alaska v. Vote Yes for Alaska's Fair
5
Share. That decision addressed whether the lieutenant governor properly certified a
ballot initiative from Vote Yes for Alaska's Fair Share (Fair Share) regarding changes
to an oil and gas production tax for certain fields.
As we outlined in that decision, the lieutenant governor approved Fair
6
Share's petition for its ballot initiative to appear on the 2020 statewide ballot, and the
Division of Elections printed petition booklets for circulation so Fair Share could gain
5 494 P.3d at 544-45. The State parties had participated in this previous
case, but took no position regarding the attorney's fees issue in this appeal and cross-
appeal and filed a notice of non-participation.
6 Id. at 544.
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7
the required signatures of qualified voters. Fair Share hired a professional signature-
gathering company that sent signature-gatherers (called circulators) to circulate the
8
petition booklets. These circulators ultimately provided 544 of the 786 signed petition
9
booklets Fair Share submitted. In March 2020, the lieutenant governor confirmed that
Fair Share's initiative had been "properly filed" and would be placed on the 2020
general ballot.10
B. Proceedings
1. Decisions on the merits
A group of trade associations - Resource Development Council for
Alaska, Inc.; Alaska Trucking Association, Inc.; Alaska Miners Association, Inc.;
Associated General Contractors of Alaska, Inc.; Alaska Chamber; and Alaska Support
Industry Alliance (collectively the "Trade Associations") - challenged the Fair Share
ballot initiative as invalid.11 The Trade Associations argued that the ballot initiative
was improperly certified because the compensation for ballot circulators exceeded the
statutory threshold of $1 per signature.12
The Trade Associations filed suit against the State and Fair Share,
claiming that Fair Share's petition was improperly certified.13 They requested
7 Id. For the petition to appear on the ballot, Fair Share had to obtain voter
signatures " 'equal in number to 10 percent of those who voted in the preceding general
election,' representing 'at least three-fourths of the house districts of the state,' with
each of those house districts providing signatures 'equal in number to at least seven
percent of those who voted in the preceding general election in the house district. ' "
Id. at 543 (quoting AS 15.45.140(a)).
8 Id. at 543-44.
9 Id . at 544.
10 Id.
11 Id.
12 Id.
13 Id.
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declaratory relief that "petition booklets that are supported by false circulator affidavits
have not been properly certified under AS 15.45.130 and that the signatures in those
booklets may not be counted," and also sought injunctive relief ordering the lieutenant
governor to invalidate the booklets and associated voter signatures.14 The State and
Fair Share both moved to dismiss, and after limited discovery the Trade Associations
cross-moved for partial summary judgment.15
Initially, the Trade Associations' complaint had focused on Alaska
statutes, particularly the statutory cap on circulator compensation. But as the superior
court noted, the constitutionality of the statute quickly became and remained a central
issue throughout the litigation. Both the State and Fair Share highlighted the protection
of constitutional free speech rights and challenged the circulator compensation statute
as unconstitutional under the Alaska and United States Constitutions.
The superior court dismissed the Trade Associations' action on
constitutional grounds. The court noted that constitutional claims were at issue for both
parties, and explained that "[t]he Alaska Constitution enshrines the right of the people
to propose and enact laws by initiative, and to approve or reject acts of the legislature
by referendum. Also implicated are fundamental First Amendment rights to engage in
core political speech." The court also provided an in-depth explanation of Alaska's
initiative process. It explained that "[p]etition circulation is 'core political speech' "
that "is protected by the First Amendment." But it noted that "there must also be
regulation of elections to ensure they have qualities of fairness and honesty . . . to ensure
that there is some order, rather than chaos, to accompany the democratic process."
Ultimately, the superior court agreed with the Trade Associations'
interpretation of the signature payment statute, but held the statute unconstitutional. It
14 Id.
15 Id. at 544-45.
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explained that the statute was unconstitutional because "the prohibition on payment
greater than $1 per signature under AS 15.45.110(c) is an unconstitutional restriction
on free speech protected by the First Amendment to the United States Constitution."
The court also noted that the Trade Associations' proposed remedy of disregarding
39,000 valid signatures on the petition was constitutionally flawed and would result in
disenfranchisement of thousands of Alaska voters.
The Trade Associations appealed the superior court's dismissal, and we
affirmed, holding that AS 15.45.110(c)'s limitation on circulator compensation was
unconstitutional and concluding that the petition was properly certified.16 We agreed
that the statute provided a hard cap on all forms of circulator compensation, and that
Fair Share's circulators' monthly compensation exceeded the statutory $1 per-signature
cap.17 But we also agreed that nevertheless, the petitions were properly certified
because "the $1 a signature limit, as a hard cap, is an unconstitutional restriction on core
political speech," thus eliminating the statutory basis for the Trade Associations'
challenge to the petition certification.18
2. Decisions on attorney's fees
After the superior court's decision on the merits, Fair Share moved for full
reasonable attorney's fees as a "constitutional claimant," arguing that it met the
statutory definition because it was the prevailing party on constitutional claims and
lacked sufficient economic incentive to otherwise bring suit. It urged that the "case
involved fundamental rights to the initiative and political speech under the Alaska
Constitution, as well as political speech under the U.S. Constitution."
Fair Share stated that it "successfully defended the constitutional rights of
Alaskans" and "itself against [the Trade Associations'] efforts to impair the
16 Id. at 549-54.
17 Id. at 545-46.
18 Id.
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constitutional rights to initiative and political speech." It argued that we had "found no
sufficient economic incentive or interest in similar circumstances" and that it should
thus receive full reasonable fees. Fair Share contended that the "Court need look only
to AS 09.60.010 to determine its fees . . . as a prevailing constitutional claimant." In
the alternative, it requested that the court award it enhanced attorney 's fees pursuant to
Rule 82(b)(3).19
The Trade Associations opposed the motion for attorney's fees,
contending that Fair Share was not a "constitutional claimant" because it was not a
"plaintiff, counterclaimant, cross claimant, or third-party plaintiff" that affirmatively
brought a constitutional claim. They also argued that "[i]f Fair Share is a constitutional
claimant merely because it raised constitutional arguments in its motions practice, then
by that logic [the Trade Associations] are also immune" from fee liability under the
same statute. The Trade Associations cited Alaska Miners Association v. Holman,
where we ruled that a non-prevailing constitutional litigant was immune from attorney's
fees under AS 09.60.010(c)(2). 20
The superior court held that Fair Share was a constitutional claimant
because it "successfully defended itself against Plaintiffs' efforts to impair the
constitutional rights to initiative and political speech." The court also held that the
Trade Associations were non-prevailing constitutional claimants "because they
19 Rule 82(b)(3) grants a court discretion to vary an attorney's fees award
from the standard fee awards, based on consideration of several factors including the
complexity of litigation, length of trial, vexatious or bad faith conduct, and other
equitable factors that the court deems relevant.
20 397 P.3d 312, 317 (Alaska 2017). Like the Trade Associations here, the
Alaska Miners Association had sued the Division of Elections and several sponsors of
a ballot initiative that would have required large-scale mining operations to undergo
additional legislative approval. Id. at 313. But unlike the Trade Associations'
statutorily based complaint, the initial complaint in Holman asserted constitutional
arguments. Id at 313-14.
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assert[ed] constitutional arguments in their summary judgment pleadings" and "did not
prevail in this suit." Examining the evidence of whether the Trade Associations had
sufficient economic incentive to otherwise bring suit, it concluded that "Fair Share has
failed to establish that [the Trade Associations] have a direct economic incentive to
bring this action ." It noted that "the case was brought by various trade associations that
represent a multitude of interests. While each Plaintiff may have varying reasons for
participating in this suit, Fair Share has not demonstrated what direct benefits Plaintiffs
derive from filing this suit." (Emphasis in original.) In reaching this conclusion, the
court examined the nature and composition of the trade associations and their members,
the nature of relief sought, and the variety of interests represented in the lawsuit. The
court considered Fair Share's assertion that the Trade Associations were "acting as
proxies for the major oil companies that were funding the [OneAlaska - Vote No on
One] campaign against the ballot initiative, as well as the litigation in this case." But
the court noted that "the OneAlaska - Vote No on One campaign did not bring this
suit." Noting the lack of evidence of direct economic incentive such that "successful
litigation would only confer indirect or attenuated economic benefits to [the Trade
Associations]," the court concluded that the litigation was "not primarily motivated by
economic interests as required by the statute." It therefore determined that the Trade
Associations were protected from attorney's fees as non-prevailing constitutional
claimants.
Despite deeming the Trade Associations "constitutional claimants" and
therefore protected from attorney's fees, the court then turned to Rule 82 and its
provisions for awarding fees. The court found that Fair Share had not sufficiently
supported its request for an "upward variance" in Rule 82 fees, but awarded Fair Share
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the standard 20% of actual attorney 's fees reasonably and necessarily incurred.21 It
deducted or reduced some contested billing entries, and ultimately awarded Fair Share
$13,100 in Rule 82 attorney's fees.
STANDARD OF REVIEW
Interpreting AS 09.60.010 is a question of law that we review de novo.22
"We apply our independent judgment to questions of law, adopting the 'rule of law that
23
is most persuasive in light of precedent, reason, and policy. ' " When a question of
statutory interpretation is involved, we will independently evaluate the trial court 's
interpretation.24
DISCUSSION
The main issue before us is who, if anyone, is a constitutional claimant,
and what attorney's fees, if any, attach as a result.25 We agree with the superior court
21 Rule 82(b)(2) establishes that in cases involving no money judgment that
are resolved without trial, the prevailing party shall be awarded 20% of its "actual
attorney's fees which were necessarily incurred."
22 Alaska Conservation Found. v. Pebble Ltd. P'ship , 350 P.3d 273, 279
(Alaska 2015). We have contemplated whether constitutional claimant status also
"could be a discretionary determination by the superior court or a mixed question of
fact and law." Id. at 284 n.60. But interpreting a statute is a question of law we review
de novo, and the constitutional claimant analysis is "generally made on indisputable
facts." See Dep't of Health & Soc. Servs. v. Planned Parenthood of the Great Nw., 448
P.3d 261, 262 (Alaska 2019) (Winfree, J., concurring). We therefore review
constitutional claimant status de novo as a question of law.
23 DeVilbiss v. Matanuska-Susitna Borough, 356 P.3d 290, 294 (Alaska
2015) (quoting Young v. Embley, 143 P.3d 936, 939 (Alaska 2006)).
24 Id.
25 In this instance, because the Trade Associations are plaintiffs whose
arguments focused on constitutional claims, we consider them constitutional claimants.
We do not, however, decide the issue whether a private party may violate another
private party's constitutional rights such that either party could qualify as a
"constitutional litigant" for purposes of attorney's fees, as neither party raised or briefed
that issue.
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that the Trade Associations are constitutional claimants. The court therefore erred in
awarding Rule 82 attorney's fees to Fair Share. That determination is dispositive, so
we do not reach the question whether Fair Share is a constitutional claimant.
A. Statutory Overview
Rule 82 generally entitles a prevailing party in a civil matter to an
attorney's fees award.26 Beginning in 1974 we recognized a "public interest exception"
to Rule 82 that protects litigants raising important public interest matters from the
disincentive of attorney's fees.27 In Anchorage v. McCabe we reasoned that the public
interest exception encouraged good faith public interest claims and that in fee-shifting
jurisdictions like Alaska, the public interest litigant serves as a "private attorney
general" vindicating a significant legislative policy.28 We adopted a three-prong test to
determine whether an action qualified for the public interest exception, considering :
first, whether the action effectuated strong public policy; second, whether numerous
people would benefit from successful litigation; and third, whether "only a private party
could have been expected to bring th[e] action."29 In 1982 we added a fourth prong
requiring that parties claiming the public interest exception demonstrate a lack of
economic incentive to bring the litigation.30
In 2003 the Alaska Legislature abrogated and replaced the public interest
exception to Rule 82.31 The legislature intended that a new statute, AS 09.60.010,
26 See Alaska R. Civ. P. 82(a); Gilbert v. State, 526 P.2d 1131, 1136 (Alaska
1974), superseded by statute, AS 09.60.010. See also Alaska Conservation Found., 350
P.3d 273, 279-80 (Alaska 2015) (outlining history of public interest exception).
27 Alaska Conservation Found. , 350 P.3d at 279-80.
28 568 P.2d 986, 990 (Alaska 1977), superseded by statute, AS 09.60.010.
29 Id. at 991 (quoting La Raza Unida v. Volpe , 57 F.R.D. 94, 101 (N.D. Cal.
1972)).
30 Kenai Lumber Co., v. LeResche, 646 P.2d 215, 223 (Alaska 1982).
31 Ch. 86, §§ 1-2, SLA 2003 (codified at AS 09.60.010(b)-(e)).
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would, much like Rule 82's public interest exception, encourage private parties to speak
up for constitutional rights while mitigating the risks of loss and the costs of pursuing
a suit, particularly one that might not result in damages.32 Relevant to this appeal, the
"constitutional claimant" provision operates as both a sword and a shield.33 Prevailing
qualified constitutional claimants must be awarded attorney's fees associated with their
constitutional claims.34 Non-prevailing qualified constitutional claimants must be
protected from paying the attorney's fees of their opponents provided the claims are not
frivolous or motivated by direct economic incentive.35
B. The Trade Associations Are Non-Prevailing Constitutional Claimants
Under AS 09.60.010.
The primary issue on appeal related to the Trade Associations'
constitutional claimant status is whether they had sufficient economic incentive to bring
the suit regardless of the constitutional claims. We hold that the Trade Associations are
non-prevailing constitutional claimants because they lacked sufficient direct economic
incentives to otherwise bring their challenge.
We determine whether a litigant is a constitutional claimant by focusing
"on primary purpose: A litigant has sufficient economic incentive to bring a claim when
it is brought primarily to advance the litigant's direct economic interest, regardless of
the nature of the claim."36 To determine "primary purpose" we generally examine two
32 See Alaska Conservation Found., 350 P.3d at 280-81 (outlining legislative
history).
33 See AS 09.60.010(c)(1)-(2).
34 AS 09.60.010(c)(1).
35 AS 09.60.010(c)(2). Section (d) of the statute further refines the fees and
associated costs available to prevailing parties, stating that the award must include only
the portion of the prevailing party's claims concerning constitutional rights and must
be awarded only if the prevailing party "did not have sufficient economic incentive to
bring the suit." AS 09.60.010(d)(1)-(2).
36 Alaska Conservation Found. , 350 P.3d at 281-82.
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factors: first, the nature of the claim and the relief sought; and second, the direct
economic interest at stake.37 As to the first factor, the nature of the claim and the relief
sought, we "look to statements made in the pleadings and proceedings about the
rationale for the lawsuit, to whether the relief requested was equitable or legal, and to
the amount of money in controversy, to determine whether the litigant had sufficient
economic incentive to bring the claim."38 The facts of the case, including arguments
the parties make throughout the litigation, inform our determination of the primary
purpose.39 That a litigant seeks injunctive and declaratory relief alone is informative
but not dispositive in determining whether a litigant had sufficient economic incentive
to bring a claim.40 Here, the Trade Associations devoted much of their briefing,
including their summary judgment arguments, to demonstrating that the United States
Constitution did not bar the state from regulating the initiative process. As the superior
court found, neither the constitutional arguments nor the statutory arguments were
frivolous. The Trade Associations sought only declaratory and injunctive relief, not
monetary relief, meaning that the decision of the lawsuit in itself would not result in
direct financial gain. Thus the first factor favors the Trade Associations being
constitutional claimants.
37 Id. at 282-83.
38 Id. at 282.
39 Id.
40 Id. (noting that "the type of relief sought" is not conclusive: " 'Economic
interest need not take the form of damages,' and requesting injunctive relief does not
guarantee a lack of economic motivation" (quoting Matanuska-Susitna Borough Sch.
Dist. v. State , 931 P.2d 391, 403 (Alaska 1997))); see also Eyak Traditional Elders
Council v. Sherstone, Inc., 904 P.2d 420, 426 (Alaska 1995) (concluding that
"economic incentives were simply not at the heart of the [qualified public interest
litigant's] motive to litigate" though its suit sought money damages along with
injunctive relief).
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As to the second factor, the direct economic interest at stake, we have
noted that "we have never required that parties seeking constitutional-claimant
status . . . be completely disinterested in the case."41 As we have emphasized in suits
involving elections and the ballot-initiative process, "possible or speculated impact" is
not direct economic benefit.42 We have repeatedly limited the proper inquiry to
examining whether there are "direct economic benefits [that] will flow to the claimant
as a result of successful litigation" and not "when it would confer only indirect or
attenuated economic benefits."43 We have held that superior courts err where they look
to "future possibilities and contingencies well outside the contours of the litigation to
conclude that [the] case was not merely about" the constitutional issue at hand.44 We
have also recognized that third-party funding of constitutional litigation with direct
economic benefit to that party can be relevant to the constitutional claimant analysis.45
But regardless of the funding source, any economic benefit must still be direct in order
to defeat constitutional claimant status : "Focusing on the funding of constitutional
litigation rather than on the litigation itself to determine primary purpose . . . can lead
easily to the wrong result."46
41 Alaska Miners Ass 'n v. Holman, 397 P.3d 312, 317 (Alaska 2017).
42 Id.
43 Alaska Conservation Found ., 350 P.3d at 283; see also Kodiak Seafood
Processors Ass 'n v. State, 900 P.2d 1191, 1198-99 (Alaska 1995) (rejecting possible
economic effect of litigation outcome on crab fishing industry as too speculative to
support direct "economic benefit" and finding for crab fishers); Ninilchik Traditional
Council v. Noah, 928 P.2d 1206, 1218- 19 (Alaska 1996) (same in commercial fishing
industry).
44 Alaska Conservation Found ., 350 P.3d at 284 (emphasis added).
45 Id. at 285.
46 Id.
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Fair Share urges that the Trade Associations have direct economic
incentive "by proxy." Fair Share characterizes the Trade Associations as merely
"nominal Plaintiffs" who are acting on behalf of the "major oil producers." Fair Share
requests that we reverse the superior court and hold that the Trade Associations had
sufficient economic incentive based on the "additional $1 billion per year in production
taxes" that the major oil producers would have to pay if Fair Share's ballot measure
succeeded. Alternatively, Fair Share asks us to remand for "discovery into the funding
and control of this litigation."
But we already rejected such an approach in Alaska Conservation
Foundation , even after the superior court there had permitted discovery analogous to
what Fair Share seeks here.47 In that case, we recognized that "commercial . . . interests
may fund litigation by others . . . but this does not automatically transform otherwise
indirect economic benefit into direct economic benefit."48 As in Alaska Conservation
Foundation , here "the underlying litigation was limited" to constitutional requirements,
and did not directly affect the economic interests of any non-party interested in the
result.49
We reiterated this principle in Alaska Miners Association v. Holman ,
which involved a constitutional challenge to the ballot-initiative process as related to a
ballot measure that would require additional legislative approval for large-scale mining
operations.50 Similar to Fair Share's arguments here, the litigants in Holman argued
that a group of trade associations, funded in part by Pebble Limited Partnership
(Pebble), had a direct economic incentive to bring a suit because the ballot measure
47 See id. at 275-78 (describing discovery process).
48 Id. at 285.
49 See id.; Alaska Miners Ass 'n v. Holman, 397 P.3d 312, 316-17 (Alaska
2017).
50 Holman , 397 P.3d at 313-17.
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"inject[ed] uncertainty" as to whether Pebble Mine development could proceed and
therefore could "have an immediate impact in the form of lowering the stock prices of
companies associated with the Project."51
We rejected this argument, stating that "[w]e reiterate and
emphasize - again - that direct economic benefit is needed" to show sufficient
economic incentive.52 Even with no dispute that Pebble partially funded the ballot
measure litigation,53 we concluded that the trade associations in that case lacked direct
economic incentive to bring suit. And because "the primary purpose of the litigation
was to bring constitutional challenges to a ballot initiative," we held that the trade
associations were protected from attorney's fees as constitutional claimants "regardless
of the real party in interest and regardless of the economic interests of [the trade
associations'] typical members."54 We noted that "we have never required that parties
seeking constitutional-claimant status . . . be completely disinterested in the case" and
instructed that "[p]ossible or speculated [economic] impact is not enough."55
Following Holman , we consider the Trade Associations' real or
speculative connections to "major oil producers" insufficient to establish direct
economic impact in this context. Fair Share asserts that the Trade Associations'
economic impacts are more direct than those in Holman because the Trade Associations
are "acting as proxies for the major oil companies . . . and the oil companies had
sufficient economic incentive to file suit because the Fair Share Act will directly impact
51 Id.
52 Id. at 317 (emphasis in original.).
53 The superior court found that Pebble financed at least part of the litigation,
and at oral argument the plaintiffs conceded that Pebble both partially financed the suit
and agreed to indemnify all named plaintiffs in the event of an adverse attorney's fees
ruling. Id. at 313-15.
54 Id. at 317.
55 Id.
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the production taxes they must pay." It urges that "direct ties to the entities that would
have paid the increased production taxes under the Fair Share Act directly affect the
incentives of the [Trade Associations] in which they have membership."
Fair Share points to two cases in which we determined that an
organization's membership's interests established sufficient economic incentive to
defeat constitutional claimant status. But both cases involved Rule 82 public interest
litigants rather than constitutional claimants, and both are distinguishable on the facts.
In Fairbanks North Star Borough v. Interior Cabaret Hotel, Restaurant, & Retailers
Association (ICHRRA),56 an alcohol beverage industry nonprofit group sued the
borough to prevent an alcohol tax referendum from being placed on the ballot, explicitly
acknowledging that it sued " 'because its members would be directly and adversely
affected' by adoption of the tax ordinance."57 ICHRRA's members were all for-profit
businesses licensed to sell alcohol.58 We concluded that the public interest litigant
exception did not apply because ICHRRA's members' economic interest in avoiding
the tax provided sufficient economic incentive to file suit.59 But as the Trade
Associations point out, that case involved a tax that would be applied directly to all of
ICHRRA's members, so it was "undisputed that all of ICHRRA's members ha[d] some
sort of direct financial interest."60 Here, the ballot initiative sought to increase
production taxes on oil from three major fields: Prudhoe Bay, Kuparuk, and Colville.
And unlike ICHRRA's relatively uniform membership, the Trade Associations '
memberships "consist of a broad constituency of individuals, organizations, and
companies, the vast majority of which would not be directly impacted by a tax on oil
56 137 P.3d 289 (Alaska 2006).
57 Id. at 291.
58 Id. at 290.
59 Id. at 292-94.
60 Id. at 292.
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production."61 The economic interests of an organization's members and directors are
relevant to assessing the primary motivation of litigation.62 But here, the economic
interest asserted is that some of the Trade Associations' members are oil and gas
producers who would be subject to higher taxes if the Fair Share Act reached the ballot
and if it were ultimately passed by Alaska's voters. We view the possibility that some
members of the Trade Associations could avoid a potential future production tax, still
subject to voter approval, as both indirect and attenuated.63 Thus we conclude that the
Trade Associations' interests here are too diffuse to constitute direct economic impact.
Further, we decline to reverse and remand for discovery into the funding
sources of the litigation. We have rejected an approach that focuses on litigation
funding sources. And we have specifically noted that seeking evidence beyond that
which has already been developed in the course of the litigation is a misplaced and
potentially misleading inquiry .64 Fair Share repeatedly asserts facts suggesting
61 The Trade Associations note the variety of organizational structures and
interests among their members. For example, the "Resource Development Council for
Alaska, Inc. is a statewide business association comprised of individuals and companies
from Alaska's oil and gas, mining, forest products, tourism, and fisheries industries,
including Alaska Native Corporations, local Alaska communities, organized labor, and
industry support firms." Some, like the Alaska Trucking Association and Alaska
Mining Association, represent specific industries and the companies that support those
industries. Others are significantly broader across industries and interests, like the
Alaska Chamber, which "is an Alaskan member-based group that has been the voice of
the Alaska business community whose membership includes individual Alaskans,
Alaska Native Corporations, oil and gas companies, trucking companies, banks, mining
entities, and tourism companies."
62 See, e.g., Kachemak Bay Watch, Inc. v. Noah , 935 P.2d 816, 827-28
(Alaska 1997) (holding nonprofit had economic incentive because evidence presented
at trial showed that three nonprofit directors would be directly economically impacted
by litigation outcome).
63 See Alaska Conservation Found. v. Pebble Ltd. P'ship , 350 P.3d 273, 281-
83 (Alaska 2015).
64 See id. at 285.
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connections between the "major oil producers" and the campaign against the success of
the ballot measure.65 These facts may have influenced the ultimate success of the Vote
No campaign at the ballot box,66 but they are well beyond the contours of the underlying
litigation in this case. Even if, as in Holman , there was evidence that third-party
resource developers funded the litigation because they were interested in blocking the
ballot measure, any financial benefit to the Trade Associations ' various individual
members would have been both speculative and attenuated by the ballot initiative
process and the will of the voters.
While affirming the superior court's determination that the Trade
Associations are constitutional claimants, we note that it was error to state that Fair
Share had the burden to prove the Trade Associations' economic incentive. As Fair
Share notes, the superior court indicated twice in its decision that Fair Share had the
burden to prove the Trade Associations' direct economic interest. This is incorrect.
The burden is on the Trade Associations to prove their lack of direct economic interest.
But the error is harmless in this context.67 Regardless of whether the
superior court proceeded as if Fair Share had the burden, the record supports the court's
ultimate conclusion. The superior court "must 'look to the facts of the case to determine
the litigant's primary motivation for filing the suit ' " because those facts "inform the
65 At the superior court, Fair Share cited quarterly reports showing that the
counter-initiative campaign against the ballot measure (called OneAlaska - Vote No
on One, or "Vote No") received most of its funding from BP Exploration Alaska,
ExxonMobil, ConocoPhillips Alaska, and Hilcorp Energy. It also noted that both the
Vote No campaign and the oil companies paid the law firms that employed the Trade
Associations' counsel.
66 See Elwood Brehmer, Oil Tax Increase Defeated, but Revenue Issue
Remains, ALASKA J. COMMERCE. (Nov. 18, 2020, 9:02 AM), https://www.alaska
journal.com/2020 -11-18/oil-tax-increase-defeated-revenue-issue-remains.
67 Pedersen v. Blythe, 292 P.3d 182, 184 (Alaska 2012) ("[W]e must
disregard harmless errors that have no substantial effect on the rights of parties or on
the outcome of the case.").
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determination of primary purpose."68 Here, the superior court's overall analysis reflects
a thoughtful examination of the required factors to determine the primary purpose of
the litigation: (1) "the nature of the claim and relief sought," and (2) "the direct
economic interest at stake."69 The court considered statements made by the Trade
Associations throughout the litigation, the nature of the relief sought, and what, if any,
direct economic impact the litigation would have. It also expressly considered Fair
Share's assertions that the Trade Associations were "acting as proxies" for the major
oil companies. This included consideration of our discussion of third-party economic
interests in Alaska Conservation Foundation .70 Based on these considerations the court
reasoned that any increase in oil production taxes occurring "if the initiative was added
to the ballot and it passed" was too "indirect or attenuated" to be the Trade Associations'
primary motivation for bringing suit. Reviewing the record and recognizing the burden
on the Trade Associations to prove their lack of direct economic incentive, we affirm
the superior court 's determination that the Trade Associations were constitutional
claimants.
C. It Was Error To Award Rule 82 Fees Against The Trade Associations.
We have recognized that the statutory language protecting qualifying
constitutional claimants is "couched . . . in seemingly mandatory terms" as
"AS 09.60.010(c)(2) states that a court 'may not order' a qualifying unsuccessful
claimant to pay attorney's fees."71 And we have consistently recognized that the statute
protecting constitutional claimants is an "exception to Rule 82."72 "A qualified
68 Alaska Conservation Found. , 350 P.3d at 282 (quoting O'Callaghan v.
State, 920 P.2d 1387, 1390 (Alaska 1996)).
69 Id. at 281-82.
70 Id. at 285.
71 Id. at 284 n.60 (quoting AS 09.60.010(c)(2)).
72 Id. at 280.
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constitutional claimant is entitled to protection under AS 09.60.010(c)(2) against an
attorney's fees award under Rule 82."73 Fees should not be awarded against a
constitutional claimant who brings claims that are neither frivolous nor primarily
economically motivated.74
The Trade Associations argue that the superior court erred by concluding
that the constitutional claimant statute "does not protect constitutional claimants from
adverse fee awards under Rule 82" and awarding Rule 82 fees against them. Fair Share
concedes that if the Trade Associations are deemed constitutional claimants, "they are
not subject to any award of fees." We agree. As discussed above, the Trade
Associations are constitutional claimants and the case involves only constitutional
claims. The Trade Associations are therefore shielded from an attorney's fee award. It
was error for the superior court to conduct a Rule 82 analysis. We thus vacate the
superior court's attorney's fees award to Fair Share.
CONCLUSION
We AFFIRM the superior court's determination that the Trade
Associations are constitutional claimants, and we VACATE the superior court's
attorney's fees award to Fair Share.
73 Taylor v. Alaska Legis. Affs. Agency , 529 P.3d 1146, 1160 (Alaska 2023).
74 We note that the statute only protects constitutional claimants against
attorney's fee awards for those fees "devoted to claims concerning" constitutional
rights. AS 09.60.010(d)(1). We have clarified that "Rule 82 attorney fees may be
awarded only for work that would not have been necessary but for a non-constitutional
claim." Lake & Peninsula Borough Assembly v. Oberlatz , 329 P.3d 214, 228 (Alaska
2014). In other words, if the suit includes separate, non-constitutional claims, fees
could be awarded based on work on those claims. Here, however, Fair Share does not
argue that any portion of the litigation between the parties was unnecessary to
constitutional claims.
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WINFREE, Chief Justice, with whom CARNEY, Justice, joins concurring in part.
I agree with today's decision because it correctly resolves the parties'
attorney's fees dispute as litigated in the superior court and argued to us in this appeal.
But there has long been an elephant in the courtroom when one private party seeks to
obtain or avoid attorney's fees vis à vis another private party, rather than a government
1
entity, under AS 09.60.010's "constitutional claimant" attorney's fees framework. If
it is true that vindication of a private party's constitutional rights is sought against the
government because only the government can violate a private party's constitutional
2
rights, how is it that a private party can be a "constitutional claimant" against another
private party and invoke the benefit or protection of AS 09.60.010?
1 We summarized the effect of AS 09.60.010 in Alaska Conservation
Found. v. Pebble Ltd. P'ship , 350 P.3d 273, 274 (Alaska 2015):
The statute both encourages and protects those challenging
governmental action as a violation of federal or state
constitutional rights. First, the statute provides that a
successful claimant generally is entitled to an award of full
reasonable attorney's fees and costs incurred in connection
with a constitutional claim, unless the claimant had
''sufficient economic incentive'' to bring the claim
regardless of its constitutional nature. Second, the statute
protects an unsuccessful claimant from an adverse attorney's
fees award if the constitutional claim was not frivolous and
the claimant did not have ''sufficient economic incentive''
to bring the claim regardless of its constitutional nature.
2 See, e.g., Belluomini v. Fred Meyer of Alaska, Inc. , 993 P.2d 1009, 1015
(Alaska 1999) (describing "long-standing legal principle" that "state and federal courts
have historically recognized that the constitution protects individuals from state action
but not from similar deprivations by private actors"); Baker v. City of Fairbanks , 471
P.2d 386, 394 (Alaska 1970) ("The American constitutional theory is that constitutions
are a restraining force against the abuse of governmental power, not that individual
rights are a matter of governmental sufferance.") ; see also State v. Alaska State Emps.
Ass'n/Am. Fed'n of State, Cnty. & Mun. Emps., 529 P.3d 547, 557 (Alaska 2023)
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Our case law has developed considerably since we recognized in State v.
Native Village of Nunapitchuk that the legislature had exercised its constitutional
authority to abrogate our common law "public interest litigation" attorney's fees
framework and replace it with the narrower constitutional litigation framework of
3
AS 09.60.010. We soon thereafter stated that for the party prevailing against the State
on a constitutional claim, AS 09.60.010 controlled the award of attorney's fees to the
4 5
exclusion of Alaska Civil Rule 82 and the former public interest litigation doctrine.
In two later cases we established parameters for determining whether, to qualify as a
(explaining that no First Amendment violation occurs unless claimant shows that state
or federal government was entity curtailing right to speak or associate); Anderson v.
Alaska Hous. Fin. Corp., 462 P.3d 19, 25 (Alaska 2020) (explaining that Alaska
Constitution's due process clause requires claimant to prove existence of "state action
and the deprivation of an individual interest of sufficient importance to warrant
constitutional protection"); Miller v. Safeway, Inc. , 102 P.3d 282, 288 (Alaska 2004)
(explaining that Alaska Constitution's right to privacy applies to "unwarranted
intrusions by the government" and not by private parties); State v. Planned Parenthood
of Alaska, 35 P.3d 30, 38 (Alaska 2001) (explaining that Alaska Constitution's art. 1,
§ 3's equal protection provision restrains only state action).
3 134 P.3d 389, 391-92, 395, 402-06 (Alaska 2007) (discussing history of
public interest litigation framework and legislative enactment abrogating and replacing
it with AS 09.60.010); see also Krone v. State, Dep't of Health & Soc. Servs., 222 P.3d
250, 253-54, 255-57 (Alaska 2009) (discussing legislature's abrogation of public
interest litigation framework and its replacement with AS 09.60.010); Alaska
Conservation Found., 350 P.3d at 274 (noting that AS 09.60.010 was "enacted to
abrogate our previous common law public interest litigation attorney's fees framework
and replace it with a narrower constitutional litigation framework").
4 See Alaska R. Civ. P. 82(a) ("Except as otherwise provided by law or
agreed to by the parties, the prevailing party in a civil case shall be awarded attorney's
fees calculated under this rule.").
5 Krone, 222 P.3d at 257.
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----------------------- Page 24-----------------------
constitutional claimant under AS 09.60.010, a party lacked "sufficient economic
6
incentive" to bring a constitutional claim regardless of its constitutional nature.
In Alaska Conservation Foundation a number of individuals and a non-
profit entity sued the State for allegedly issuing constitutionally defective land and
water use permits to Pebble Limited Partnership in connection with the proposed Pebble
7
Mine. The Pebble Limited Partnership intervened as a party-defendant aligned with
8
the State. The State and the Pebble Limited Partnership prevailed on the constitutional
9
claim and attorney's fees litigation under AS 09.60.010 ensued. The Pebble Limited
Partnership sought wide-ranging discovery from the plaintiffs and certain non-parties
about the plaintiffs' economic interests and obtained superior court orders compelling
the discovery.10 We granted a petition for review and an original application for relief
on the superior court's discovery rulings and consolidated them for decision.11
We issued two related opinions the same day, one reversing the superior
court's merits-decision rejecting the plaintiffs' constitutional claim12 and the other
reversing the superior court's discovery rulings.13 We recognized that, because our first
decision resulted in the plaintiffs being prevailing constitutional claimants, the award
of attorney's fees had to be reversed and the plaintiffs then would be entitled to seek
6 Alaska Conservation Found., 350 P.3d at 281-86; Alaska Miners Ass'n v.
Holman , 397 P.3d 312, 316-17 (Alaska 2017).
7 350 P.3d at 275.
8 Id.
9 Id.
10 Id. at 275-78.
11 Id. at 274.
12 Nunamta Aulukestai v. State, Dep't Nat. Res., 351 P.3d 1041, 1064
(Alaska 2015).
13 Alaska Conservation Found. , 350 P.3d at 286.
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----------------------- Page 25-----------------------
attorney's fees in the superior court.14 Concluding that the attorney's fees litigation still
would require a decision on the discovery disputes, and specifically the correct analysis
for analyzing sufficient economic incentive to bring constitutional claims, we reached
those issues.15
We reversed the discovery order and concluded that the case was about
potential constitutional limitations on State-issued land and water use permits for which
there was not sufficient economic incentive to bring the action absent the constitutional
issue.16 Along the way we rejected the arguments that the plaintiffs were merely
stalking horses for fisheries and tourism interests opposed to the Pebble Mine and that
those interests had sufficient economic incentive to bring the lawsuit, focusing instead
on whether the ultimate decision on the constitutional issue could have a direct
economic impact on anyone.17 Answering that question "no," we remanded for
proceedings in which the plaintiffs, as qualified prevailing constitutional claimants,
could seek an AS 09.60.010(c)(1) attorney's fees award.18 Whether the Pebble Limited
Partnership or the plaintiffs could rely on AS 09.60.010 to seek or avo id an attorney's
fees award vis à vis the other was not an issue before us.19
In Holman a number of parties (Alaska Miners) aligned with the Pebble
Limited Partnership sued the State to challenge, on state constitutional grounds, the
certification of a ballot initiative that would require final legislative approval for large-
scale mining operations located within certain watersheds, such as the proposed Pebble
14 Id. at 274-75.
15 Id.
16 Id. at 286.
17 Id.
18 Id. at 286.
19 Cf. id. at 274 (stating that AS 09.60.010 "encourages and protects those
challenging governmental action as a violation of federal or state constitutional rights").
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----------------------- Page 26-----------------------
Mine.20 The ballot initiative sponsors collectively (Holman) intervened as a party-
defendant aligned with the State to defend the ballot initiative.21 The State and Holman
prevailed on the constitutional issue and we later affirmed that decision on appeal.22
Holman then sought AS 09.60.010 attorney's fees against the Alaska Miners as a
prevailing constitutional litigant.23 The Alaska Miners countered that they were non-
prevailing constitutional claimants entitled to protection against an attorney's fees
award, and that Holman, as an intervenor-defendant, could not meet the statutory
requirement that a constitutional claimant be a plaintiff, counterclaimant, cross-
claimant, or third-party plaintiff.24 The superior court awarded full reasonable
attorney's fees to Holman, first concluding that Holman was effectively a "claimant"
despite being an intervenor-defendant and then concluding that because the Pebble
Limited Partnership had agreed to indemnify the Alaska Miners and the Pebble Limited
Partnership had a sufficient economic interest in bringing the claim regardless of its
constitutional nature, the Alaska Miners were not protected by AS 09.60.010(c)(2).25
We reversed the superior court's decision. Noting that the case was the
"mirror image" of Alaska Conservation Foundation ,26 we rejected the superior court's
20 Alaska Miners Ass'n v. Holman , 397 P.3d at 313 (Alaska 2017).
21 Id.
22 Id. (citing Hughes v. Treadwell, 341 P.3d 1121, 1134 (Alaska 2015)).
23 Id. at 314.
24 Id.; cf. AS 09.60.010(c)(2) (providing qualified non-prevailing
constitutional claimant protection against an attorney's fee award); AS 09.60.010(c)(1)
(referring to constitutional claimant as "plaintiff, counterclaimant, crossclaimant, or
third-party plaintiff" in action concerning constitutional rights). The Alaska Miners
couched its latter superior court argument to be that the statute was intended to protect
persons who raised constitutional claims against the State but not to protect intervenor-
defendants against private parties. 397 P.3d at 314.
25 Holman , 397 P.3d at 315.
26 Id. at 316.
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----------------------- Page 27-----------------------
real-party-in-interest analysis and concluded that the case was about constitutional
limitations on Alaska's ballot initiative process and not about direct economic
interests.27 Because the only issue before us was whether the Alaska Miners had
"sufficient economic incentive" to bring its suit against the State,28 we reversed the
award of AS 09.60.010 attorney's fees against the Alaska Miners and in favor of
Holman.29 Whether the two private parties could rely on AS 09.60.010 to obtain or
avoid attorney's fees awards vis à vis each other - and how the statutory language
about a claimant being a plaintiff asserting a constitutional claim rather than being a
defendant defending a constitutional claim might play in the analysis - was not
resolved in our decision.30
In the case before us now, the AS 09.60.010 attorney's fees dispute again
is between private parties and does not involve the State. The plaintiff trade
27 Id. at 317.
28 Id. at 316.
29 Id. at 318.
30 The statutory definition of a claimant was an issue in more recent superior
court litigation, although it was not an issue in the subsequent appeal. In Taylor v.
Alaska Legis. Affs. Agency the attorney general sued a legislative agency for declaratory
judgment on a constitutional question about the effective date of budget appropriations.
529 P.3d 1146, 1148-51 (Alaska 2023). The superior court ruled in favor of the
legislative agency, which then sought AS 09.60.010(c)(1) attorney's fees. Id. at 1160.
The superior court agreed with the attorney general that the agency did not qualify as a
constitutional claimant because it was a defendant in the action, not a plaintiff, but it
did award attorney's fees to the agency under Civil Rule 82. Id. at 1152. The attorney
general appealed the merits of the constitutional ruling and the attorney's fees award.
Id. The agency did not appeal the ruling that it was not entitled to an award of attorney's
fees under AS 09.60.010(c)(1). Id. at 1159. We affirmed the superior court's decision
on the constitutional issue but vacated the attorney's fees award because the court had
not resolved the attorney general's contention that he was entitled to protection against
the fees award under AS 09.60.010(c)(2). Id. at 1160 (noting we took no position on
whether the attorney general, or any state agency, could be a qualified constitutional
claimant under the statute).
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----------------------- Page 28-----------------------
associations (Trade Associations) sued the State and the ballot initiative sponsor (Fair
Share), contending that the collection and certification of signatures violated
AS 15.45.130 and AS 15.45.110(c). But the constitutionality of AS 15.45.110(c)
became a central issue in the litigation, and the State and Fair Share prevailed on that
constitutional issue. Fair Share sought AS 09.60.010(c)(1) attorney's fees against the
Trade Associations as a successful constitutional claimant, arguing that it had
successfully defended "against [the Trade Associations'] efforts to impair the
constitutional rights to initiative and political speech." The Trade Associations
responded that Fair Share had not been a "plaintiff, counterclaimant, cross claimant, or
third-party plaintiff" in the action, had not raised a constitutional claim in its pleadings,
and therefore could not be a constitutional claimant under the statute. They
alternatively argued that they were qualified non-prevailing constitutional claimants
and protected against an attorney's fees award under AS 09.60.010(c)(2). Like the
superior court in Holman but unlike the superior court in Taylor, the superior court
accepted Fair Share's argument and concluded that Fair Share was a constitutional
claimant despite not being a plaintiff-like party, entitling it to attorney's fees under
AS 09.60.010(c)(1) if otherwise qualified. But the court went on to conclude that the
Trade Associations were qualified non-prevailing constitutional claimants protected by
AS 09.60.010(c)(2), thus precluding an award of attorney's fees.
Today's decision correctly affirms the superior court's ruling that the
Trade Associations are qualified non-prevailing constitutional claimants entitled to the
protection of AS 09.60.010(c)(2) with respect to its constitutional claim. As litigated
in the superior court and argued to us by Fair Share on appeal, that resolves the narrow
dispute before us. But our narrow ruling begs the elephantine question: Can
AS 09.60.010 be interpreted to provide a private party with the right to obtain or avoid
an attorney's fees award vis à vis another private party who did not and could not violate
another private party's constitutional rights? The language of the statute, when
delineating who can be a claimant, suggests the statute is limited to someone suing the
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----------------------- Page 29-----------------------
government on a constitutional question, which seems consistent with the statute's
intent.31 This then suggests that as to a dispute between private parties about
constitutional interpretation, Civil Rule 82 and not AS 09.60.010 applies. There also
remains the related question whether a private or government entity defendant can
potentially qualify as a constitutional claimant entitled to protection under
AS 09.60.010(c)(2) merely by opposing a constitutional claim with a competing
constitutional analysis, thus eviscerating the legislature's intent to encourage citizens to
bring actions to protect their constitutional rights.32 But, because these issues are not
before us, we have no analysis of the statutory language, no presentation about
legislative history and intent, and no adversarial arguments on how the statute should
be read in this context. At some point these issues need to be presented and resolved.
31 See supra note 1.
32 Cf. supra notes 1 and 30 (and related text).
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