Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Fuhs v. Gilbertson (06/13/2008) sp-6271

Fuhs v. Gilbertson (06/13/2008) sp-6271, 186 P3d 551

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


PAUL N. FUHS; and ALASKANS )
FOR MEDICAL CHOICE AND ) Supreme Court No. S- 12258
COMPETITION, )
) Superior Court Nos. 3AN-04-1596 CI,
Appellants, ) 3AN-04-13594 CI
)
v. ) O P I N I O N
)
JOEL GILBERTSON, in his official ) No. 6271 June 13, 2008
capacity as COMMISSIONER, )
DEPARTMENT OF HEALTH AND )
SOCIAL SERVICES, STATE OF )
ALASKA; and SISTERS OF )
PROVIDENCE IN WASHINGTON, )
CORP., )
)
Appellees. )
)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sharon Gleason, Judge.

          Appearances:  Robert J. Gunther,  Law  Office
          of  Robert J. Gunther, Anchorage, and Mark S.
          Bledsoe,  Law  Offices of  Mark  S.  Bledsoe,
          Anchorage, for Appellants.  Stacie L.  Kraly,
          Assistant  Attorney  General,  and  Craig  J.
          Tillery, Acting Attorney General, Juneau, for
          Appellees   State   of   Alaska   and    Joel
          Gilbertson.   Peter  J.  Maassen,  Ingaldson,
          Maassen  &  Fitzgerald, P.C., Anchorage,  and
          Peter   Gruenstein,  Gruenstein   &   Hickey,
          Anchorage,  for  Appellee  Providence  Alaska
          Medical Center.
          Before:     Fabe,  Chief  Justice,  Matthews,
          Eastaugh,  Justices.  [Bryner and  Carpeneti,
          Justices, not participating.]

          EASTAUGH, Justice.
I.   INTRODUCTION
          Providence Alaska Medical Center applied to the  Alaska
Department of Health and Social Services (DHSS) for a certificate
of  need  (CON)  to  build an open-bore MRI facility,  and  then-
Commissioner Joel Gilbertson granted the certificate.  Paul  Fuhs
filed an accusation requesting a hearing before DHSS to challenge
issuance of the CON.  When Gilbertson denied the request based on
his  conclusion  that  Fuhs  lacked standing  under  Alaskas  CON
statute,   Fuhs   filed  two  superior  court   proceedings:   an
administrative appeal challenging the denial of his request for a
hearing,  and  a  civil  action  seeking  an  injunction  against
construction  of  the facility.  The superior court  consolidated
the  cases  and  dismissed  them, determining  that  Fuhs  lacked
standing both to challenge the CON administratively and  to  seek
an injunction.  It then awarded attorneys fees to both Providence
and  Gilbertson, rejecting Fuhss assertion that he was  a  public
interest  litigant.  Because Fuhs was not substantially  affected
by  the  CON  and because the public interest litigant  exemption
from Alaska Civil Rule 82 attorneys fees no longer applies to non-
constitutional causes of action, we affirm.
II.  FACTS AND PROCEEDINGS
          Alaskas certificate of need (CON) statute requires that
entities seeking to construct health care facilities at a cost of
$1,000,000  or  more obtain a CON from the Alaska  Department  of
Health  and  Social Services (DHSS).1  In April  2004  Providence
Alaska  Medical Center applied to DHSS for a CON to construct  an
open-bore  MRI  facility.  On September 2 Paul  Fuhs  sent  then-
Commissioner  Joel  Gilbertson a letter expressing  his  concerns
with  the  CON  system generally and Providences CON  application
specifically.   Two  weeks later Gilbertson granted  the  CON  to
Providence  for construction of its open-bore MRI facility.   The
following  week,  Fuhs  filed  an  accusation  under  the  Alaska
Administrative Procedure Act and requested a hearing before  DHSS
regarding the CONs issuance.
          By  letter  dated November 25 Gilbertson  denied  Fuhss
request.   Gilbertson concluded that Fuhs lacked  standing  under
the  applicable statute, AS 18.07.081(a), which confers  standing
to  initiate  a hearing upon a person substantially  affected  by
activities authorized by the certificate.  Gilbertson noted  that
the  applicable  regulation, 7 Alaska Administrative  Code  (AAC)
07.080,   grants  standing  to  any  person.   But  because   the
regulation  expressed a more liberal standard for  standing  than
the  statute,  Gilbertson  determined  that  the  regulation  was
invalid.  Although Gilbertson denied Fuhss request for a hearing,
he noted that he agreed with many of Fuhss concerns about the CON
process  and stated that he would implement a moratorium  on  CON
applications until such time as these regulatory shortcomings can
be addressed.  The moratorium did not apply to Providence because
Gilbertson had already granted its CON.
          In  December 2004 Fuhs filed two superior court  cases:
an   administrative  appeal,  3AN-04-13594  CI,   of  Gilbertsons
decision denying Fuhs standing to challenge the CON and  a  civil
case,  3AN-04-13596 CI, against Gilbertson and Providence seeking
declaratory  and injunctive relief.  Alaskans for Medical  Choice
and  Competition (AMC2), a nonprofit corporation incorporated  by
Fuhs  to  represent the legal and political interest  of  Alaskas
health care consumers, joined Fuhs in the civil case.2
          In  August 2005 the superior court consolidated the two
cases.  In November the court granted Providences and Gilbertsons
motions  to  dismiss the civil case.  First, the court determined
that  Fuhs lacked standing to request injunctive relief under  AS
18.07.091(a)  because he had not shown he would be  substantially
and  adversely  affected by construction  of  the  open-bore  MRI
facility.  Second, the court determined that Fuhs had standing to
challenge Gilbertsons decision that 7 AAC 07.080(b) was  invalid,
but  nonetheless agreed with Gilbertson that the  regulation  was
invalid.  Third, the court decided that it could not consider the
civil   action   as   an   administrative  appeal   because   the
administrative  appeal  had  been  consolidated  with  the  civil
action.   Despite dismissing the three causes of action in  Fuhss
original  civil  complaint, the court granted  Fuhss  request  to
submit additional briefing on the administrative appeal component
of the case.
          In  the meantime, Providence had begun constructing the
facility; construction began in January 2005 and was completed by
the  end  of  July 2005.  The facility began serving patients  in
September 2005.
          In   March  2006  the  superior  court  dismissed   the
administrative appeal, concluding that Fuhs did not have standing
under  AS  18.07.081(a) to maintain an administrative  accusation
with respect to the Providence CON.
          Providence  moved  for Alaska Civil Rule  82  attorneys
fees.  The court awarded Providence $12,897.40, twenty percent of
its  incurred fees, rejecting Providences argument that the  fees
should  be adjusted upwards and Fuhss argument that he should  be
exempt as a public interest litigant.  When Gilbertson moved  for
Rule  82  fees,  the  court granted his motion  and  awarded  him
$2,261, twenty percent of his incurred fees.
          Fuhs  appeals  the  dismissals and the  attorneys  fees
awards.  AMC2 appeals the grant of attorneys fees to Gilbertson.
III. DISCUSSION
     A.   Standard of Review
          We  review  issues  of standing using  our  independent
judgment.3   We review decisions regarding motions to dismiss  de
novo, deeming all facts in the complaint true and provable.4   We
review decisions regarding public interest litigant status  under
Rule 82 for abuse of discretion.5
     B.   Whether Fuhs Has Standing To Administratively Challenge
          the  Providence  CON Under AS 18.07.081(a)  or  Request
          Injunctive Relief Under AS 18.07.091(a)
          
          Alaska  Statute 18.07.081(a) permits a  person  who  is
substantially affected by the activities authorized by a  CON  to
          initiate a hearing by filing an accusation with DHSS.6  Alaska
Statute  18.07.091(a) allows a person substantially and adversely
affected to file suit for injunctive relief.7
          When Fuhs initially challenged the Providence CON under
AS 18.07.081(a), the pertinent regulation granted standing to any
person  requesting a hearing if good cause [were]  demonstrated.8
In  his civil complaint Fuhs sought a judgment declaring that the
regulation was valid and that it granted Fuhs standing  under  AS
18.07.081(a).   But DHSS argued that the regulation  was  invalid
because  it  was  inconsistent with  the  substantially  affected
language of the statute.9  The superior court likewise held  that
7   AAC  07.080(b)s  standing  requirement  conflicted  with   AS
18.07.081(a)s requirement that a person be substantially affected
to  challenge  a  CON.  The  superior court  concluded  that  the
regulation  was invalid and that Fuhs therefore could  not  claim
standing under the regulation.
          After  hearing oral argument, we asked the  parties  to
submit  supplemental  briefs  on  the  issue  of  standing.    We
specifically  asked  the  parties to  address  whether  the  more
liberal  standing  requirement in the regulation  violate[s]  the
statute  [AS 18.07.081(a)], given that the statute does  not,  at
least  explicitly,  apply to hearings concerning  a  decision  to
grant  a  certificate of need.  Fuhs did not address the question
in  his  supplemental brief and instead argued that: (1) he  does
not  claim  standing under the regulation; (2) the statute,  like
the  regulation, applies to decisions to grant a CON; and (3) the
issue  is  moot because Fuhs does not appeal the superior  courts
invalidation  of the regulation.  Fuhs has therefore  waived  any
argument  he may have had under the regulation, and we look  only
to  the  CON  statutes to determine whether Fuhs has standing  to
challenge the Providence CON under either AS 18.07.081 or .091.
          Fuhs  argues that he is substantially affected  by  the
issuance  of the Providence CON and therefore has standing  under
AS  18.07.081(a)  to  administratively  challenge  the  CON.   He
further  argues  that he is substantially and adversely  affected
and therefore has standing to request injunctive relief under  AS
18.07.091(a).
          In  his administrative accusation Fuhs asserted that he
has standing because he is a citizen of the State of Alaska and a
self-paying  consumer of medical services within the  State.   In
his  civil complaint Fuhs added that he is a retired Alaska state
employee.  He asserted that his retirement is threatened  by  the
rising  costs of medical care and that as a self-pay  patient  he
must  pay  higher prices to subsidize hospital services  that  he
does not use.
          In  response,  Providence argues that  the  legislature
purposely limited standing in the context of challenges to  CONs.
Citing the superior court order, Providence points out that  Fuhs
did  not even allege that he has, or ever intends to receive  MRI
services,  either open or closed bore.   In addition  to  arguing
that  Fuhs  cannot have standing merely as a consumer of  medical
services, Providence also argues that Fuhs has failed to  produce
any  evidence showing that the Providence CON will actually  harm
consumers.  Gilbertson adds that if the legislature had  intended
          for all members of the public to have standing to challenge the
issuance  of a CON, it would not have included a heightened  test
for standing in the statute.
          We have previously addressed standing to challenge CONs
in   two  decisions.10   In  South  Central  Health  Planning   &
Development,   Inc.   v.  Commissioner  of  the   Department   of
Administration, we considered whether South Central had  standing
under  AS 18.07.091(a) to challenge the construction of a skilled
nursing  addition to the Anchorage Pioneers Home.11   Determining
that  South Central was a health systems agency under  42  U.S.C.
300l,  we  held  that  it had standing, in  part  because  Alaska
regulations included health systems agencies in the definition of
person directly affected by the approval or denial of a CON.12
          But  South  Central  does not support  Fuhss  argument.
Fuhs  argues  that,  like South Central, he fits  the  regulatory
definition of a person directly affected. When South Central  was
issued,  and when Fuhs filed his civil case below, the regulatory
definition  of person directly affected included members  of  the
public  to  be served by the activity for which a certificate  of
need is required.13  But this definition is of a term that is not
found  in  either  statute.  There is  no  reason  to  think  the
department  intended  the  definition to  define  standing  under
either of the pertinent statutes.  Furthermore, the subsection of
the  regulation on which Fuhs relies is on its face  inconsistent
with  both  statutory  subsections.   The  regulation  seems   to
contemplate  a very low threshold that does not require  anything
more than being in the class of people who might be served by the
activity; indeed, it even implies that a person benignly impacted
would have standing.
          In  South  Central, we noted that South Central  was  a
person  directly  affected but we further determined  that  South
Central  would  also be substantially and adversely  affected  if
health  care  facilities were constructed  in  its  area  without
conforming to its plan, for this could disrupt the plan, undercut
the   agencys  statutorily  delegated  planning  activities,  and
subvert  the purposes of health systems planning.14   Because  it
appeared  South  Central  would be  substantially  and  adversely
affected,   we   concluded  that  it  had   standing   under   AS
18.07.091(a).15
          Fuhss  brief seems to imply that because there  are  no
longer  health  systems planning agencies, private citizens  must
monitor the issuance of CONs.  He avers that the issuance of CONs
at  a  time Alaska does not have a current health plan subvert[s]
the  purpose  of health system planning.  Assuming  for  sake  of
discussion Fuhs is correct that issuing CONs without  a  plan  is
antithetical  to  the  purpose of health  system  planning,  this
circumstance would be irrelevant to whether Fuhs has standing  to
raise the issue.  Neither the holding of South Central nor any of
its  language  supports a reading of AS 18.07.091(a)  that  would
grant Fuhs standing.
          In   Sisters  of  Providence  in  Washington,  Inc.  v.
Department  of Health & Social Services, we held that  Providence
had  standing to challenge a DHSS decision regarding a  competing
hospital.16  But Sisters of Providence involved a determination of
          standing under general standing requirements, rather than the
heightened requirements of AS 18.07.081(a) and .091(a).17  General
standing  requirements  are  liberally  construed  in  Alaska;  a
litigant  must  merely show a sufficient personal  stake  in  the
outcome  of the controversy.18  Under this liberal test, we  held
that Providence had standing because it demonstrated a threat  of
future economic harm if DHSSs decision were upheld.19
          Because  AS  18.07.081(a) and  .091(a)  are  permissive
statutes  that  expressly grant standing and only impliedly  deny
it,  they do not necessarily foreclose the possibility that  Fuhs
has  standing  under  general standing  requirements.   But  Fuhs
cannot  satisfy  even the generalized test for standing.   Unlike
Providence in Sisters of Providence, Fuhs does not claim he is  a
direct competitor of the permitted facility, nor has he shown any
other individual direct injury.
          Furthermore,  the  plain words of AS  18.07.081(a)  and
.091(a) do not confer standing upon Fuhs.  Substantially affected
is  a  stricter test than sufficient personal stake.   When  Fuhs
initially   challenged  the  CON,  the  statute  and   applicable
regulations did not define substantially affected.20  We therefore
give the term its ordinary meaning.21  Substantially affected  is
not  defined,  but  substantial is  variously  defined  as  real,
strong,  considerable, and important.22  The parties assume  that
the  substantially  and  adversely  affected  requirement  in  AS
18.07.091(a)   is   stricter  than  the  substantially   affected
requirement in AS 18.07.081(a).  For sake of discussion here,  we
assume without deciding that standing under AS 18.07.091(a) is no
less rigorous than under AS 18.07.081(a).23
          As  the superior court noted, Fuhs does not allege that
he  plans  to  get  an MRI scan.  At most, Fuhs  has  alleged  an
indirect  connection  between  his  health  care  costs  and  the
issuance  of CONs.  This connection is too tenuous to  give  Fuhs
standing  under  either AS 18.07.081(a) or  .091(a).   Fuhs  also
refers  to  the  fact that he used to direct  the  South  Central
Health  Planning Agency and sit on the board of Alaskas Statewide
Health Coordinating Council.  Although his former positions might
make  Fuhs substantially interested in the issuance of CONs, they
do  not  cause him to be substantially affected by the activities
authorized  by the Providence CON.  We therefore hold  that  Fuhs
lacks  standing to challenge the Providence CON under  either  AS
18.07.081(a) or .091(a).24
     C.   Whether  Fuhs  Is  Exempt from Rule 82  Attorneys  Fees
          Awards
          Fuhs  argues that he is a public interest litigant  and
that  the superior court therefore erred in awarding Alaska Civil
Rule 82 attorneys fees to Providence and Gilbertson against Fuhs.25
In Matanuska Electric Assn v. Rewire the Board, we explained that
a  party  is  a  public interest litigant if: (1)  the  case  was
designed  to  effectuate  strong public  policies;  (2)  numerous
people  would  benefit  if the litigant  succeeded;  (3)  only  a
private  party could be expected to bring the suit; and  (4)  the
litigant lacked sufficient economic incentive to bring suit.26
          In 2003 the legislature amended AS 09.60.010 to abolish
the  public  interest exception to Rule 82 for non-constitutional
          causes of action.27  The superior court, noting that the amendment
had  been  held  unconstitutional by two superior  court  judges,
declined to rely on the amendment in denying Fuhs public interest
status.   It  instead conducted the traditional  public  interest
inquiry and held that Fuhs was not a public interest litigant.
          After  we  heard oral argument in this case, we  upheld
the  constitutionality of the 2003 amendment to AS  09.60.010  in
State  v.  Native Village of Nunapitchuk.28  We then invited  the
parties  in  this  case to submit supplemental briefs  addressing
whether,  assuming Fuhs is a public interest litigant,  the  2003
amendment has any application to this case.

          All  parties agree that the 2003 amendment applies  and
bars   the   public   interest  litigant   exception   for   non-
constitutional causes of action.  Fuhs now argues  that  although
the  2003 amendment abolished the public interest exception,  our
decision in Nunapitchuk retains the superior courts power to vary
a  Rule  82(b) fee award when a given fee award may be so onerous
to  the  non-prevailing  party  that  it  would  deter  similarly
situated  litigants from the voluntary use of the courts.29   But
when Providence moved for an award of fees, Fuhs only opposed  an
award  on grounds of his alleged public interest litigant status;
he  did not argue alternatively, or on reconsideration after  the
superior  court ruled against him, that he was shielded  by  Rule
82(b)(3)(I)  from an award of fees.  He made no showing  how  any
award  would chill suits by similarly situated litigants. On  the
other  hand,  his superior court affidavit asserted  that  he  is
president  of  AMC2, which has an independent board of  directors
and  currently has about 60 members, including consumers, doctors
and  other  medical  providers, and small  businesses.   We  have
received  funding from a variety of businesses including  [Alaska
Open  Imaging  Center],  who  is  not  a  member.   Although  the
affidavit  asserts that no member of AMC2 would reap  substantial
economic  benefit  if  Fuhs had prevailed,  it  also  permits  no
inference that the prospect of an award of partial attorneys fees
would  discourage  similarly situated  potential  litigants  from
filing  suit.  Accordingly, Fuhss failure to raise this  argument
in the superior court forecloses him from raising it here.30
          Fuhs  additionally appeals the award of attorneys  fees
to Gilbertson on the ground the superior court did not adequately
explain the basis for its decision.  But the court order awarding
Providence attorneys fees rejected Fuhss argument that  he  is  a
public interest litigant; the court was not required to reiterate
its  ruling  with  regards to Gilbertson.  We therefore  find  no
reason  to  remand  for a reconsideration of attorneys  fees  and
accordingly  affirm the superior courts awards of attorneys  fees
to Providence and Gilbertson.
IV.  CONCLUSION
          Because  he  was  not  substantially  affected  by  the
Providence  CON,  Fuhs does not have standing  to  challenge  the
issuance  of  the  CON  under AS 18.07.081(a)  or  .091(a).   And
because Fuhs waived his argument that he should be shielded  from
attorneys fees awards under Rule 82(b)(3)(I), the superior  court
did  not  err  in  awarding  attorneys  fees  to  Providence  and
          Gilbertson.  We therefore AFFIRM the dismissals of both of Fuhss
superior court cases and AFFIRM both attorneys fees awards.
_______________________________
     1      See  AS  18.07.031.   Beginning  July  1,  2005,  the
threshold  cost  amount increases annually by  $50,000.   See  AS
18.07.035(d).   When Providence applied for a CON, the  threshold
amount was still $1,000,000.

     2     We  refer to Fuhs and AMC2 collectively as Fuhs unless
context requires otherwise.

     3     Shook v. Alyeska Pipeline Serv. Co., 51 P.3d 935,  937
(Alaska 2002).

     4    Catholic Bishop of N. Alaska v. Does 1-6, 141 P.3d 719,
722 (Alaska 2006).

     5     Fairbanks N. Star Borough v. Interior Cabaret,  Hotel,
Rest. & Retailers Assn, 137 P.3d 289, 291 (Alaska 2006).

     6    AS 18.07.081(a) provides in pertinent part:

          [A] member of the public who is substantially
          affected  by  activities  authorized  by  the
          .  .  .  certificate of need may  initiate  a
          hearing  to  obtain modification, suspension,
          or  revocation of an existing certificate  of
          need   by  filing  an  accusation  with   the
          commissioner   as   prescribed    under    AS
          44.62.360.
          
(Emphasis added.)

     7    AS 18.07.091(a) provides in pertinent part:

          Injunctive relief against violations of  this
          chapter  or  regulations adopted  under  this
          chapter  may  be  obtained from  a  court  of
          competent  jurisdiction at  the  instance  of
          .  . . any member of the public substantially
          and adversely affected by the violation.
          
(Emphasis added.)

     8    Former 7 AAC 07.080(b) (2004) provided that:

          Any  person other than the applicant  who  is
          dissatisfied   with   a   decision   of   the
          commissioner  to  grant, deny,  or  modify  a
          certificate of need may request a hearing  by
          making a written request which is received by
          the  commissioner  . . . .  The  commissioner
          will  grant the request for a hearing if good
          cause is demonstrated.
          
     9     DHSS  amended  the  regulation in  August  2005.   The
current DHSS regulation provides:

          An   applicant   or  a  person  substantially
          affected  by  activities  authorized   by   a
          certificate of need, who is dissatisfied with
          a  decision  of the department to  require  a
          certificate  of  need or a  decision  of  the
          commissioner  to  grant, deny,  or  modify  a
          certificate of need, is entitled to a hearing
          if  the  request  for a hearing  is  made  in
          writing  and  received by the  department  no
          later   than  30  days  after  the  applicant
          receives the decision.
          
7 AAC 07.080(a) (am. 8/14/2005).

     10     See  Sisters of Providence in Wash., Inc. v. Dept  of
Health & Soc. Servs., 648 P.2d 970 (Alaska 1982); S. Cent. Health
Planning  & Dev., Inc. v. Commr of Dept of Admin., 628  P.2d  551
(Alaska 1981).

     11    S. Cent. Health Planning & Dev., Inc. v. Commr of Dept
of Admin., 628 P.2d 551, 552 (Alaska 1981).

     12    Id.

     13    Former 7 AAC 07.130(11)(C) (2004).

     14    S. Cent. Health Planning & Dev., Inc., 628 P.2d at 552.

     15    Id.

     16    Sisters of Providence in Wash., Inc. v. Dept of Health
& Soc. Servs., 648 P.2d 970, 974-75 (Alaska 1982).

     17    Id. at 974.

     18    Id.

     19    Id. at 974-75.

     20      The   current   DHSS   regulation   defines   person
substantially affected as:

          (A)  the department;
          (B)  the commissioner;
          (C)  a health care facility or provider that
               (i)   is located in the proposed service
          area  and  that provides services similar  to
          the proposed activity, or alternatives to the
          proposed activity; or
               (ii) has indicated to the department, by
          submitting a letter of intent in response  to
          a public notice issued under 7 AAC 07.042, or
          a  competing application under 7 AAC  07.040,
          an intent to engage in the activity for which
          the certificate of need is sought; and
          (D)   an  agency  that sets or regulates  the
          rates  charged by a health care  facility  or
          the   services  provided  by  a  health  care
          facility[.]
          
7 AAC 07.900(15) (2006).

     21     AS 01.10.040(a) (Words and phrases shall be construed
according  to the rules of grammar and according to their  common
and approved usage.).

     22     Websters  II  New  World College Dictionary  at  1099
(1995).

     23    See Mech. Contractors of Alaska, Inc. v. State, Dept of
Pub.  Safety, 91 P.3d 240, 248 (Alaska 2004) (When we  engage  in
statutory  construction  we  will presume  that  the  legislature
intended every word, sentence, or provision of a statute to  have
some  purpose, force, and effect, and that no words or provisions
are superfluous.).

     24     Providence  additionally argues that  we  can  affirm
dismissal  of  Fuhss  complaint on  the  alternative  grounds  of
mootness  or laches because the Providence open-bore MRI facility
has  been operating since September 2005.  Because we affirm  the
dismissal on the ground that Fuhs lacks standing, we do not  need
to address Providences alternative argument.

     25     See  Fairbanks  N. Star Borough v. Interior  Cabaret,
Hotel,  Rest.  &  Retailers Assn, 137 P.3d 289, 291  n.2  (Alaska
2006)  (  [I]t is an abuse of discretion to award attorneys  fees
against a losing party who has in good faith raised a question of
genuine  public  interest before the courts.  )  (citing  Koyukuk
River  Tribal  Task Force on Moose Mgmt. v. Rue,  63  P.3d  1019,
1020 (Alaska 2003)).

     26     Matanuska Elec. Assn v. Rewire the Bd., 36 P.3d  685,
696 (Alaska 2001).

     27     See  ch. 86,  2(b), SLA 2003.  The amendment mandates
that  a court in this state may not discriminate in the award  of
attorney  fees and costs to or against a party in a civil  action
or appeal based on the nature of the policy or interest advocated
by the party. AS 09.60.010(b).

     28    State v. Native Vill. of Nunapitchuk, 156 P.3d 389, 405-
06 (Alaska 2007).

     29     Id.  at 406; see Alaska R. Civ. P. 82(b)(3)(I) ([T]he
extent  to  which  a  given fee award may be so  onerous  to  the
non-prevailing  party  that  it would  deter  similarly  situated
litigants from the voluntary use of the courts.).

     30    Brandon v. Corr. Corp. of Am., 28 P.3d 269, 280 (Alaska
2001) (arguments first raised on appeal are waived).  Because  we
determine that Fuhs waived his Rule 82(b)(3)(I) argument and that
Fuhss  status as a public interest litigant would not affect  the
attorneys fee award, we do not need to decide whether Fuhs  is  a
public interest litigant.

This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com
Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC