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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Braun v. Denali Borough (09/12/2008) sp-6305

Braun v. Denali Borough (09/12/2008) sp-6305, 193 P3d 719

      Notice:   This opinion is subject to correction before  pub
lication 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

DAVID P. BRAUN, )
) Supreme Court No. S- 12050
Appellant, )
) Superior Court No. 4FA-04-02616 CI
v. )
) O P I N I O N
DENALI BOROUGH, )
) No. 6305 September 12, 2008
Appellee. )
)
)
DAVID P. BRAUN,               )
                              )    Supreme Court No. S-12359
             Appellant,            )
                              )     Superior  Court  No.  4FA-02-
02156 CI
     v.                       )
                              )
DENALI BOROUGH,               )
                              )
             Appellee.             )
                              )




          Appeal  in File No. S-12050 from the Superior
          Court of the State of Alaska, Fourth Judicial
          District,  Fairbanks,  Charles  R.  Pengilly,
          Judge.   Appeal in File No. S-12359 from  the
          Superior Court of the State of Alaska, Fourth
          Judicial District, Fairbanks, Randy M. Olsen,
          Judge.

          Appearances: David P. Braun, pro  se,  Healy,
          Appellant.   James M. Gorski,  Hughes  Bauman
          Pfiffner  Gorski  & Seedorf, LLC,  Anchorage,
          for Appellee.
          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Carpeneti, and Winfree, Justices.

          FABE, Chief Justice.

I.   INTRODUCTION
          David  Braun  filed  four lawsuits against  the  Denali
Borough,  challenging  the  2002 and 2004  reapportionment  plans
adopted  by  Denali  Borough voters.  Two  of  these  suits  have
resulted in appeals that we have consolidated for decision.
          Brauns  appeals challenge three issues in the decisions
of  two superior courts: (1) Judge Charles R. Pengillys grant  of
summary judgment to the Denali Borough on the ground that  Brauns
November  2004 lawsuit was an unsuccessful election challenge  to
the  2004  vote on the Denali Borough reapportionment  plan;  (2)
Judge  Randy  M.  Olsens decision that the  2004  Denali  Borough
reapportionment  plan was constitutional; and  (3)  Judge  Olsens
denial  of attorneys fees to Braun for his challenge to the  2002
reapportionment plan.
          We  conclude  that Braun is entitled to attorneys  fees
for  his  challenge to the 2002 reapportionment  plan  under  the
catalyst  theory.  But because the lawsuit before Judge  Pengilly
was  indeed  an unsuccessful election challenge, and because  the
2004  Denali  Borough reapportionment plan does not  violate  the
equal protection clauses of the Alaska Constitution or the United
States Constitution, we affirm those decisions.
II.  FACTS AND PROCEEDINGS
          The  Denali Borough Charter, adopted in 1989,  provides
for  a  nine-seat  elected assembly and calls for reapportionment
[a]s  the need arises.  Assembly apportionment is governed by  AS
29.20.060.120.  On August 12, 2001, after the release of the 2000
census  results,  the  Denali Borough  Assembly  declared  itself
malapportioned.   The  Assembly  then  developed  a   by-district
reapportionment  proposal  and  presented  it,  along   with   an
alternative  at-large proposal submitted by a  group  of  Borough
voters,  to  the public in a special election.  On  February  19,
2002,  the  voters  approved  the Boroughs  proposed  by-district
reapportionment  plan  and rejected the at-large  proposal.   The
total  variance  of  the 2002 approved reapportionment  plan  was
11.9%.1
          Braun  and  at least fifty other Denali Borough  voters
submitted a petition to the Department of Community and  Economic
Development   requesting  review of the reapportionment  plan  to
determine  if  it  met  the  equal  representation  standards  of
AS 29.20.060.  The petition was received in the Department office
on  March 26, 2002, and after a thorough[] review of the plan and
the  process  used to adopt it, the Commissioner determined  that
the plan was constitutional and issued a written decision to that
effect on May 9, 2002.
          Approximately one month later, Braun filed a  complaint
with  the  State of Alaska Ombudsman.  He charged that  the  2002
reapportionment plans variance improperly exceeded 10%, that  the
plan purposefully disenfranchised Healy area voters, and that the
Commissioner   erred   in   determining   that   the   plan   was
          constitutional.  Beth Liebowitz, counsel for the office of the
Ombudsman,  agreed  with  the  Commissioner  that  the  plan  was
constitutional and explained her reasoning to Braun in a detailed
letter dated August 6, 2002.  But two days later, Liebowitz wrote
a  letter to the Department director stating that several aspects
of  [the  Departments] review disturbed [her]  and  attempted  to
explain  what  [she] found so that [the Department] may  consider
these  issues  in  future decisions. Despite  characterizing  the
matter as a close case in many ways, Liebowitz could not say that
the  Commissioners decision was clearly wrong and concluded  that
Brauns   complaints,  though  serious,  d[id]   not   necessarily
establish a constitutional violation.
          After  Liebowitz issued her letter approving the  plan,
Braun  appealed the Commissioners decision to the superior  court
in  his  first complaint.2  Then, in November 2003,  the  Borough
held a regularly scheduled election using the district boundaries
adopted in the 2002 reapportionment plan.  Braun filed a separate
lawsuit challenging this election.3
          Then,  in  May 2004, the parties reached a  settlement.
Under   its  terms,  Braun  and  the  Borough  agreed  to  submit
presumptively   constitutional  apportionment   plans   (with   a
population variance of less than 10%) to the voters, who would  .
.  .  choose an apportionment plan in the general election to  be
held  the  following November.  Braun I would be  stayed  pending
voter decision of assembly apportionment in accordance with these
terms   and  then  dismissed  [u]pon  approval  .  .   .   of   a
constitutionally acceptable apportionment plan.  Judge Wood  also
dismissed Braun II based on this settlement.
          Braun  and  the  Borough  set  about  developing  their
reapportionment  plans.   Michael  Walleri,  counsel  for  Braun,
attended  an  Assembly meeting and urged the  Assembly  to  build
their  plan  around  census  blocks.   He  also  highlighted  the
importance  of  community representation and strongly  urged  the
Borough   to   stick  to  those  community  bases  in   its   new
reapportionment  plan.   The  Borough  complied  and  drafted   a
proposal  reapportioning its four election districts to  coincide
with  the  2000 U.S. Census block boundaries.  The  2004  Borough
proposal achieved a variance of 9%.  The citizen-generated  plan,
which  was  developed  by Braun, featured  five  districts,  also
following  census boundaries, and at-large voting.  Its  variance
was 8.7%.
          About  one  month  before  the  election  on  the   new
reapportionment  plan,  Braun filed  a  third  suit  against  the
Borough,  alleging  that the proposal it intended  to  submit  to
voters was unconstitutional and therefore violated the settlement
agreement.4   On  November 2, 2004, the  voters  considered  both
reapportionment plans;  they ultimately rejected Brauns  proposal
and adopted the Boroughs plan.  On November 10, 2004, Braun filed
a    fourth   suit   against   the   Borough,   challenging   the
constitutionality  of  the  election  and  the  plan.5    Shortly
thereafter,  Braun and other voters petitioned the Department  of
Commerce, Community and Economic Development6 to review the newly
adopted reapportionment plan for compliance with AS 29.20.060.
          In  early  December 2004 the Borough filed a Notice  of
          Compliance with Settlement Agreement in Braun I based on the 2004
vote.   The  Borough  urged the court  to  decide  the  issue  of
attorneys fees and costs so that the case could be closed.  Three
days  later, Braun emailed the Commissioner of the Department  of
Commerce,  Community and Economic Development  and  outlined  his
theory   on   why   the   Boroughs   reapportionment   plan   was
unconstitutional.  Nonetheless, in a  letter  dated  January  10,
2005, the Commissioner upheld the adopted plan.
          On  February 18, 2005, the parties met with Judge Olsen
for  a status conference.  They agreed that the constitutionality
issues  related  to the 2004 reapportionment election  should  be
adjudicated by either Judge Savell or Judge Pengilly in Braun III
or  Braun  IV.   Judge  Olsen  consequently  considered  Braun  I
resolved  as  to  all issues but attorneys fees.  Coincidentally,
Judge Savell (of Braun III) ruled on the very same day that Judge
Olsens  case (Braun I) was the appropriate forum to consider  the
constitutionality of the 2004 plan.
          In  light  of the dismissal of all issues but attorneys
fees  in Braun I, Braun moved for attorneys fees in that case  on
March  21,  2005.  Braun argued that he was entitled to attorneys
fees  under the catalyst theory and that he was a public interest
litigant.  The Borough opposed the motion, contending that  Braun
was  not  the prevailing party, that he was not a public interest
litigant,   and   that  the  fees  and  costs  he   sought   were
inappropriate.
          Meanwhile,  Braun  moved  for a  partial  judgment  and
ruling in Braun IV that the plan and the process by which it  was
adopted  were unconstitutional.  The Borough opposed the  motion,
arguing  (1) that the settlement agreement precluded  Braun  from
filing  new reapportionment cases and (2) that Braun  IV  was  an
election  contest  demanding a high burden of proof  that  Brauns
complaint  could  not  meet.   In  March  2005  Braun   filed   a
supplemental  motion informing Judge Pengilly  that  Judge  Olsen
would  not  be  considering  the constitutionality  of  the  2004
reapportionment per stipulation of the parties in  Braun  I,  and
that Judge Olsen and the parties anticipated Judge Pengilly would
decide that issue in Braun IV.
          Judge  Pengilly heard oral argument on March 31,  2005.
Two  weeks  later, he determined that Braun IV  was  an  election
contest  in  which Braun had failed to meet the  high  burden  of
proof  required;  he  therefore granted the Boroughs  motion  for
summary  judgment.  He also decided that his court was the  wrong
forum   to   consider   the   constitutionality   of   the   2004
reapportionment and suggested three possible avenues to Braun for
consideration of that issue: (1) Braun could seek to enforce  the
settlement  agreement in [Braun I] before  Judge  Olsen;  (2)  he
could seek to have the agreement set aside on the ground that  it
was  unenforceable;  or  (3)  he could  file  an  appeal  of  the
Commissioners  decision that the apportionment  plan  adopted  in
2004 was constitutional.
          Approximately six weeks after Judge Pengillys decision,
the  parties  returned  to Judge Olsen for a  status  conference.
They informed him that Judge Pengilly had declined to rule on the
constitutionality of the 2004 plan and they requested that  Judge
Olsen  do  so  himself.  As Judge Olsen recognized,  the  parties
agreed  that  if  the 2004 apportionment plan  was  found  to  be
constitutional,  that will be the end of all  questions  in  this
case.  Judge Olsen agreed to review the constitutionality of  the
2004  plan  and,  with  the  input of the  parties,  developed  a
schedule for submission of evidence and briefing.
          Brauns  counsel, Walleri, withdrew from Braun I,  Braun
III,  and  Braun IV in early January 2006.  Braun then filed  two
motions  requesting direction from Judge Olsen on how to proceed.
Judge Olsen responded in an order of clarification dated February
16, 2006 that the case was now solely about the constitutionality
of  the 2004 reapportionment plan and applicable attorneys  fees.
Judge  Olsen stated that he would not entertain arguments on  any
other subject.
          In a brief filed about six weeks later, Braun contended
that   Judge   Olsen  had  no  jurisdiction   to   consider   the
constitutionality  of  the  2004  plan  but  nonetheless   argued
alternatively that the 2004 plan was unconstitutional because  it
purposefully  diluted  the  vote of Healy  area  residents.   The
Borough  filed  a brief supporting the constitutionality  of  the
plan on March 31, 2006, and Braun filed a reply brief reiterating
his  position that the court had no jurisdiction to consider  the
constitutionality of the 2004 plan.
          Judge  Olsen  heard oral argument on May 5,  2006.   He
issued a written decision on May 15 in which he agreed with Braun
that he did not have jurisdiction to consider the 2004 plan.   He
concluded  that Braun I remained dismissed and that  the  Borough
was  the  nominal  prevailing party.  He declined  to  award  the
Borough attorneys fees because he decided that Braun was a public
interest litigant.  Alternatively, Judge Olsen ruled that  if  he
did  have jurisdiction to consider the constitutionality  of  the
2004  plan,  the  plan was constitutional and  Braun  I  remained
dismissed.
          Braun  moved for reconsideration, arguing that  he  was
the   prevailing  party  because  his  challenge  to   the   2002
reapportionment plan was successful and that he was  entitled  to
attorneys fees.  Judge Olsen denied this motion.  Braun  filed  a
second request for reconsideration, which was also denied.  Judge
Olsen entered judgment in favor of the Borough on July 12, 2006.
          Of  the  four suits Braun filed in this line of  cases,
two  have resulted in appeals:  Braun I and Braun IV, in  S-12359
and S-12050.7  In December 2006 we consolidated these cases.
III. STANDARD OF REVIEW
          We review summary judgment decisions de novo, affirming
the  trial  courts  grant of summary judgment  if  there  are  no
genuine  issues of material fact and the moving party is entitled
to  judgment as a matter of law.8  In reviewing a superior courts
grant of summary judgment, we draw all factual inferences .  .  .
in favor of the party against whom summary judgment was entered.9
          We review a superior courts determination of prevailing
party  status  and attorneys fees for abuse of discretion.10   We
will  overturn  such determinations only if they  are  manifestly
unreasonable.11    With  respect  to  the  constitutionality   of
reapportionment plans, our review is limited in scope.12  We have
          explained that [t]hough we remain mindful of our obligation to
assure compliance with all constitutional guarantees, we will not
lightly interfere with the reapportionment process.13  We  accord
deference   to   the  legislature  in  this  inquiry,14   and   a
reapportionment  plan  will  be  upheld  if  reasonable  and  not
arbitrary.15
          Review   of   an  administrative  decision  calls   for
deference  to  the  administrative agency when  the  issue  is  a
question  of  law requiring agency expertise16 or a  question  of
fact.17
IV.  DISCUSSION
     A.   Braun  Is Entitled to Attorneys Fees and Costs for  His
          Challenge  of the 2002 Reapportionment Plan  Under  the
          Catalyst Theory.
          
          In  Braun I, Braun challenged the constitutionality  of
the  2002  reapportionment  plan.   The  case  was  conditionally
resolved through a settlement agreement negotiated by the parties
in  May  2004.18  The settlement agreement provided  that  Denali
Borough   voters  would  be  presented  with  two   presumptively
constitutional  apportionment  plans19   one  submitted  by   the
Borough,  the other submitted by a citizen  in the next election.
Braun submitted the citizen-generated reapportionment plan, which
was  presented  to Denali Borough voters alongside  the  Boroughs
plan  in  the  following  election.  The  voters  opted  for  the
Boroughs plan rather than Brauns.
          Braun moved for attorneys fees in Braun I on March  21,
2005.   The  Borough opposed.  Judge Olsen denied the  motion  as
premature but later ruled on the issue in May 2006, declining  to
award Braun attorneys fees because [Brauns] challenge to the 2002
apportionment scheme ha[d] not been successful and because  [t]he
small  modification in the 2004 scheme[20] would not change  this
conclusion.
          Braun  argues  that  his lawsuit  led  the  Borough  to
withdraw  the 2002 plan, which had a variance over the 10%  prima
facie constitutional limit, and to develop the 2004 plan that was
prima  facie  constitutional.  He contends that this  fact  alone
makes  him  the prevailing party.  He incorporates the  arguments
made  in  his  March 2005 motion for attorneys fees,  which  were
grounded in the catalyst theory.
          We  have held that the prevailing party is the one  who
succeeds on the main issue.21  A party need not prevail on  every
issue  to  enjoy prevailing party status,22 nor need  he  achieve
formal judicial relief.23  Under the catalyst theory, a plaintiff
who settles enjoys prevailing party status if he proves: (1) that
the  goal  of  his  litigation  was  achieved,  meaning  that  he
succeeded on a significant issue and achieved a benefit for which
the suit was brought, and (2) that his lawsuit was a catalyst  in
motivating  the defendant to settle.24  Once the plaintiff  makes
this  prima facie case, he is entitled to Rule 82(b)(2) attorneys
fees   unless  the  defendant  proves  that  his  lawsuit  lacked
colorable merit.25
          Here, both prongs of the test have been fulfilled.  The
first question is whether motivating the Borough to set aside the
          2002 plan and to develop a new one constitutes success for Braun
on  the main issue of his case  challenging the constitutionality
of   the  2002  reapportionment  plan.   Braun  argues  that  the
settlement agreement, particularly the replacement of an over-10%
variance plan with a prima facie constitutional, sub-10% variance
plan,  proves  that  his  suit was a  success.   Conversely,  the
Borough  maintains  that  its  participation  in  the  settlement
agreement does not constitute an admission that the 2002 plan was
unconstitutional,  but  rather evidences a  practical  desire  to
avoid  litigation.  But the Borough itself has  stated  that  the
settlement agreement gave [Braun] nearly everything he asked  for
in  his complaint.  Braun challenged the constitutionality of the
2002  reapportionment  plan, and as a result  of  his  suit,  the
Borough  withdrew that plan and replaced it with  a  prima  facie
constitutional  one.   As  to  the  second  prong,  the   Borough
developed the 2004 reapportionment plan and presented it  to  the
voters  in  furtherance of its settlement agreement  with  Braun.
Braun  is entitled to appropriate attorneys fees and costs  under
the catalyst theory.26
     B.   The  Superior  Court Did Not Err in Deciding  that  the
          2004   Denali   Borough   Reapportionment   Plan    Was
          Constitutional.
          
          Braun  argues that the reapportionment plan adopted  by
Denali  Borough  voters  in 2004 violates  the  equal  protection
guarantees  of  both the United States and Alaska  Constitutions.
The  2004  Denali Borough reapportionment plan provides for  four
voting  districts with borders defined by the U.S. census blocks.
Under  the plan, (1) 609 of the total 1,893 Denali Borough voters
are  in  the North District, meriting three of the nine  assembly
seats;  (2)  212 are in the East Central District,  meriting  one
assembly  seat; (3) 850 are counted in the West Central District,
meriting  four  assembly seats; and (4) 222 are  counted  in  the
South District, meriting one assembly seat.27  Braun contends that
these  district lines have been drawn to split Healy area voters,
who number 1,000 of the 1,893 total Borough voters, by improperly
combining some of them with other districts.  According to Braun,
this  arrangement provides fewer assembly seats  for  Healy  area
voters  than the majority they deserve, diluting their  vote  and
improperly  denying them majority control.  Braun also  complains
that  the  plan  provides Cantwell (in the  South  District)  and
Anderson  (in the North District) enough seats together to  block
an  attempted  override of the mayors veto by representatives  of
over  two  thirds  of  borough residents, which  he  believes  is
improper since Anderson and Cantwell number only 589 residents.
          The  Borough  maintains that the plan is  presumptively
constitutional  and moreover that it is constitutional  in  fact.
In  his  May  2006  opinion, Judge Olsen based his  dismissal  of
Brauns  constitutional  claims on two alternative  grounds:   (1)
that   he   did   not   have   jurisdiction   to   consider   the
constitutionality  of  the  2004 plan  or  (2)  if  he  did  have
jurisdiction,  that  the  2004 plan was  constitutional,  thereby
fulfilling the settlement agreement.
          1.   Judge  Olsen did not lack jurisdiction to consider
          the constitutionality   of  the  2004   reapportionment
               plan.
               
          As  he  contended below, Braun argues  on  appeal  that
Judge  Olsen  did  not  have jurisdiction to  consider  the  2004
reapportionment  plan.   We disagree.  At  the  May  2005  status
conference before Judge Olsen, the parties stipulated that  Judge
Olsens  case was the correct forum to decide this discrete issue,
and  Judge Olsen, Braun, and the Borough developed a schedule for
submission of evidence and briefing accordingly.  The case  moved
forward   in  that  court,  and  the  February  2006   order   of
clarification  reiterated that the only issue to be  decided  was
the  constitutionality of the 2004 reapportionment plan.  It  was
not   until  late  March  2006,  ten  months  after  the  parties
stipulated that the case belonged before Judge Olsen, that  Braun
changed  course  and  argued  that  Judge  Olsen  did  not   have
jurisdiction.
          Brauns  eleventh-hour argument that Judge Olsen  lacked
jurisdiction  to decide the issue is belied by two  factors:  (1)
the  constitutionality  of the 2004 plan  directly  affected  the
settlement  agreement in the case originally  assigned  to  Judge
Olsen  (Braun  I) and (2) the parties stipulated  that  the  case
before  Judge Olsen was an appropriate forum to decide the issue,
and  they  litigated  it  there to completion.   After  extensive
briefing  from both parties on the constitutionality of the  2004
plan,  Judge  Olsen  issued a decision  resolving  the  question.
Judge  Olsen had jurisdiction to decide the constitutionality  of
the plan.
          2.   The  superior  court did not err in affirming  the
               constitutionality  of  the  2004  Denali   Borough
               reapportionment plan.
               
          Braun  and  other voters petitioned the  Department  of
Commerce,  Community  and  Economic  Development  to  review  the
constitutionality   of  the  2004  reapportionment   plan.    The
Commissioner issued a written decision concluding that  the  plan
was  constitutional.  In his May 2006 opinion, Judge Olsen upheld
the Commissioners decision, stating that the deference granted to
the  voters who adopted the [2004 reapportionment] scheme in  the
first  place, and to the Commissioner who reviewed the scheme  in
the  second  place,  would prevent the court from  reversing  the
decision   of  the  Commissioner.   Under  our  precedent,   that
deference  was appropriate.  In Kentopp v. Anchorage, we  likened
the  deference due a municipal assembly in adopting  a  municipal
reapportionment  plan  to the deference the  Governor  enjoys  in
fashioning a state reapportionment plan.28  We explained that the
formulation  of  a reapportionment plan is a decidedly  political
process  in  which  we  would not lightly  interfere,  though  we
recognized   our  obligation  to  assure  compliance   with   all
constitutional  guarantees.29  We  characterized  our  review  of
reapportionment  plans as limited and stated  we  would  validate
them  as long as they were reasonable and not arbitrary.30   With
that in mind, we examine Brauns equal protection claims in turn.
               a.   The  2004 Denali Borough reapportionment plan
               does not  violate  the  federal  Equal  Protection
                    Clause.
                    
          Two  fundamental  principles  govern  our  analysis  of
Brauns  federal  Equal Protection Clause claim.  In  our  federal
equal   protection  analysis  in  Kenai  Peninsula  Borough,   we
recognized that
          in   the   context   of  voting   rights   in
          redistricting and reapportionment litigation,
          there  are  two  basic  principles  of  equal
          protection,  namely that of one  person,  one
          vote   the right to an equally weighted  vote
          and of fair and effective representation  the
          right  to  group effectiveness or an  equally
          powerful vote.[31]
          
We have held that an apportionment plan with a variance under 10%
falls   in   a  category  of  minor  deviations  and  meets   the
quantitative standard of one person, one vote.32  It is undisputed
that  the variance of the 2004 reapportionment plan is under 10%.
The  2004 reapportionment plan therefore meets the first  element
of the Kenai test.
          The  second element of the test requires that the  plan
provide  fair and effective representation to voters.   Examining
this  issue  in Kenai, we cited the United States Supreme  Courts
plurality decision in Davis v. Bandemer, which held that an equal
protection violation
          may  be found only where the electoral system
          substantially disadvantages certain voters in
          their  opportunity to influence the political
          process effectively.  In this context, such a
          finding   of  unconstitutionality   must   be
          supported    by    evidence   of    continued
          frustration of the will of a majority of  the
          voters  or effective denial to a minority  of
          voters  of  a  fair chance to  influence  the
          political process.[33]
          
As  we  discussed in Kenai, a successful constitutional claim  in
the  political  context  requires proof not  only  of  purposeful
discrimination  but also proof that a group of  voters  is  being
consistently  and  substantially  excluded  from  the   political
process  [and] denied political effectiveness over  a  period  of
more  than  one  election.34  In Kenai, we held a reapportionment
plan  did not violate the federal Equal Protection Clause because
it  had  not been proven that the Board attempted to consistently
and  substantially deny voters representation,  and  because  the
Reapportionment Boards goal was to create proportionality.35
          Here,  Braun  has  not met his burden of  proving  that
Denali  Borough  voters are being consistently and  substantially
excluded from the political process.  Braun argues that
          the  Denali  Borough has over many  elections
          impermissibly  discriminated against  borough
          residents   by  1)  providing  for   weighted
          voting,  2) not providing for majority  rule,
          3) not providing as nearly as practicable for
          relatively  integrated  socio-economic  areas
          and,   4)   unnecessarily   depriving   rural
          residents of representation.
          
But  these  arguments against the 2004 plan are unavailing.   The
variance  of  the 2004 plan is under 10%, which we have  held  is
prima  facie  constitutional and insufficient to  prove  weighted
voting.36   Braun  claims that the Healy area  population,  which
constitutes  a  majority of Denali Borough  residents,  is  being
improperly deprived of majority control in the Assembly.  But  as
we have explained before:
          Kenai  Peninsula  Borough  does  not  entitle
          political    subdivisions   to   control    a
          particular  number of seats based upon  their
          populations.  Kenai Peninsula Borough  simply
          held  that  the  board  cannot  intentionally
          discriminate against a borough or  any  other
          politically  salient  class  of   voters   by
          invidiously minimizing that classs  right  to
          an equally effective vote.[37]
          
Moreover, the Boroughs plan was adopted over Brauns by a majority
vote.   And his claim that rural residents are being deprived  of
representation does not find support in the record.
          Though  he  does  not cite it, the third  factor  Braun
lists, which concerns integrated socio-economic areas, refers  to
language  from  article VI, section 6 of the Alaska Constitution.
But  article VI governs legislative apportionment, not  municipal
apportionment.38  Municipal apportionment is governed by statute.39
Furthermore,   the   language  Braun   cites   is   specific   to
apportionment of house districts,40 and we have declined to extend
this language even to apportionment of senate districts,41 which,
unlike  municipal apportionments, are legislative in  nature  and
implicated  elsewhere in article VI.  To the extent  that  Brauns
argument  is not a reference to article VI but instead a  broader
attack  on  the  quality  of the 2004 plan  for  its  failure  to
provid[e]  as  nearly  as practicable for  relatively  integrated
socio-economic  areas, that contention calls  on  this  court  to
decide  whether the 2004 reapportionment plan is the  best  plan,
rather  than  whether  it  is  simply  constitutional.   We   are
authorized to consider only the latter.  As we noted in Kentopp:
          It cannot be said that what we may deem to be
          an  unwise choice of any particular provision
          of  a reapportionment plan from among several
          reasonable  and  constitutional  alternatives
          constitutes  error  which  would  invoke  the
          jurisdiction of the courts.[42]
          
          Nor   has  Braun  proven  the  purposefulness  of   the
exclusion  he  alleges,  as  Kenai  requires,43  beyond  his  own
conclusory  statements.  Even the Liebowitz letter  addressed  to
the  Department director, which refers to the 2002 plan, not  the
2004  plan, states only that Liebowitz found evidence  not proof,
but evidence  that the district lines were drawn for the specific
          purpose of preserving three assembly seats for the Anderson/Clear
district.
          Ultimately, as Braun has recognized, the basis  of  his
constitutional  claim is a very fact-intensive inquiry.   But  in
the  context of reapportionment plans, our review is deferential;
as  long  as  the  reapportionment plan  is  reasonable  and  not
arbitrary,44 we must uphold it.  In light of the Kenai standard to
prove  a  constitutional claim in reapportionment cases,  and  in
light  of  the  deference  accorded  to  the  Assembly  and   the
Commissioner  in this context,45 Brauns federal equal  protection
claim fails.
               b.   The  2004 Denali Borough reapportionment plan
                    does  not violate the Alaska equal protection
                    clause.
                    
          We   employ   a  three-part  test  to  evaluate   equal
protection challenges under the Alaska Constitution.46  We  first
consider  what  weight  is  afforded the constitutional  interest
impaired  by  the  challenged action.47   We  next  consider  the
purposes served by the challenged action, and we evaluate  lastly
the states interest in the particular means used to achieve those
purposes.48  In the context of reapportionment cases, the  Alaska
Constitutions  equal  protection standard is  stricter  than  its
federal counterpart.49
          In examining whether an apportionment plan violated the
equal  protection clause of the Alaska Constitution, we  held  in
Kenai  that a voters right to an equally geographically effective
or  powerful  vote is, while not a fundamental right,  .  .  .  a
significant constitutional interest.50  The right of  Healy  area
voters  to be grouped in one district and enjoy majority  control
in the Assembly is therefore significant, but not fundamental.
          Next, we must consider what purposes are served by  the
challenged  action. In Kenai, it was undisputed  that  the  Board
deliberately  fashioned  the  reapportionment  plan  to   prevent
another Anchorage seat.51  Once a discriminatory intent is proven,
redistricting will be held illegitimate unless that redistricting
effects  a greater proportionality of representation.52   Because
the  Boards  intent  in  Kenai was facially  discriminatory,  and
because  its effect was to create greater disproportion, we  held
that  the redistricting plan violated the equal protection clause
of the Alaska Constitution.53
          But   here,  Braun  has  not  proven  that   the   2004
reapportionment plan was developed to purposefully disenfranchise
Healy area voters.  Beyond his own conclusory statements and  the
qualified  concern Liebowitz expressed regarding the  2002  plan,
which she described as evidence  not proof, but evidence that the
district lines may have been drawn for a specific purpose,  there
is   nothing  in  the  record  proving  the  Boroughs  intent  to
disenfranchise Healy area voters in the 2004 plan.   Indeed,  the
Commissioner, to whose view we accord deference on  questions  of
law   requiring  agency  expertise  and  on  questions  of  fact,
explicitly determined that the district lines were not  drawn  to
achieve  any  particular  outcome.  As  discussed  above,  Brauns
constitutional  claim is a very fact-intensive  inquiry,  and  as
          long as the reapportionment plan is reasonable and not arbitrary,54
we  must  uphold it.  Braun has not established that the  Borough
intentionally   discriminated  against  Healy  area   voters   in
developing  the 2004 plan, and he has not overcome the  deference
we   accord   the   Assembly   and  the   Commissioner   in   the
reapportionment context.55  His equal protection claim under  the
Alaska Constitution fails.
     C.   The  Superior  Court  Did Not Err in  Determining  that
          Braun  IV  Was an Election Contest and in Granting  the
          Boroughs Motion for Summary Judgment.
          
          Judge  Pengilly granted the Boroughs motion for summary
judgment  in Braun IV because he concluded that the case  was  an
unsuccessful election challenge. Braun appeals that conclusion.
          The  purpose  of  an election contest is  to  ascertain
whether the alleged impropriety in fact establishes doubt  as  to
the validity of the election result.56  For this reason, [w]hether
a  cause of action should be deemed an election contest []  turns
on  the remedy sought.57  If the plaintiffs proposed remedy would
defeat  the  public  interest in the stability  and  finality  of
election  results, it is appropriate to deem the cause of  action
an election contest and to require compliance with the procedures
for  such contests.58  A cause of action is deemed not to  be  an
election  challenge  only  if  the remedy  will  not  affect  the
stability and finality of the election result.59
          Braun  asserts that his lawsuit is ultimately  a  claim
for  judicial review of [the Boroughs] plan of apportionment, and
that  it  does not challenge the validity of the election  result
approving  the  2004 apportionment.60  But the remedy  he  sought
before  Judge Pengilly was a judgment prohibiting the use of  the
reapportionment plan . . . approved by the voters on November  2,
2004  in  future elections.  And in his October 2007 reply  brief
for the consolidated case, Braun asked that we
          [e]nter   a  judgment  declaring   that   the
          apportionment plans approved by voters in the
          February  19, 2002 special election  and  the
          November  2,  2004 regular election  violated
          the state and federal constitutions and order
          the results of those elections void[.]
          
(Emphasis added.)  Applying this remedy would clearly defeat  the
public interest in the stability and finality of election results61
by  nullifying  the 2004 elections.  Moreover, the 2004  election
was  itself  held  pursuant to a settlement that invalidated  the
2002  election.  If the next reapportionment scheme is  also  put
before  the  electorate, it would be the third  election  on  the
subject   a  situation that, in itself, would seriously undermine
the  publics confidence in the finality of election results.  The
superior  court did not err in concluding that his  case  was  an
election challenge.
          We  next  consider, viewing the evidence in  the  light
most  favorable  to Braun, whether the superior  court  erred  in
concluding Brauns election challenge was unsuccessful as a matter
of  law.  Under AS 15.20.540, an election may be contested on the
          following grounds:  (1) malconduct, fraud, or corruption on the
part  of an election official sufficient to change the result  of
the  election;  (2)  when  the person  certified  as  elected  or
nominated  is  not  qualified as required by law;  [or]  (3)  any
corrupt  practice  as  defined by law sufficient  to  change  the
results  of the election.  We apply a higher standard  of  review
for  post-election challenges to ballot language than . . . [for]
pre-election challenges.62  In a post-election challenge such  as
the  one at bar, it is  insufficient to establish a lack of total
and  exact  compliance with the constitutionally and  statutorily
prescribed form of ballot.63  Rather, the challenging  party  has
the  dual  burden  of showing that there was both  a  significant
deviation from statutory direction, and that the deviation was of
a magnitude sufficient to change the result of the election. 64
          Here,  Braun  made clear both in oral  argument  before
Judge  Pengilly  and  in  his briefing  to  this  court  that  he
challenges  the  constitutionality of the 2004 elections  subject
matter,  not  the  fairness of its procedures.   Braun  does  not
claim,  and  nothing in the record indicates, that  the  November
2004  election was marred by malconduct, fraud, or corruption  on
the  part of an election official sufficient to change the result
of  the  election or by any corrupt practice as  defined  by  law
sufficient  to  change the results of the election.65   Nor  does
Braun  claim  that a person certified as elected or nominated  is
not  qualified  as required by law.66  Brauns election  challenge
does not adhere to the grounds outlined in AS 15.20.540, nor  has
he proven the significant deviation from statutory direction .  .
.  sufficient  to  change  the result of  the  election  that  is
required in a successful election challenge.67  Judge Pengilly did
not   err  in  concluding  that  Brauns  election  challenge  was
unsuccessful as a matter of law.
     D.   Brauns Other Claims in Braun IV Are Meritless.
          Braun  raises three additional claims in his appeal  of
Braun  IV: (1) that both Judge Pengillys decision directing Braun
to  seek  relief before Judge Olsen and the settlement  agreement
itself created a process that is contrary to established law; (2)
that the trial courts68 erred by not demanding discovery and [by]
allowing  the  opposing  attorneys and the  State  of  Alaska  to
withhold  evidence; and (3) that the superior  court  judges  who
have  adjudicated  his lawsuits are biased and  have  facilitated
efforts  to  avoid  discovery and cover up  evidence  of  illegal
actions by the State of Alaska and the Denali Borough.
          1.   Brauns  claims regarding the creation of a process
               that is contrary to established law fail.
               
          Braun claims that Judge Pengilly created a process that
is  contrary to established law by directing Braun to seek relief
in the case before Judge Olsen, and that there is no provision in
[the] Alaska Statutes for successive remedies to be challenged in
this  manner.   But  as discussed above, the  case  before  Judge
Pengilly  (Braun IV) was inextricably linked to the  case  before
Judge  Olsen (Braun I) because the settlement brokered to resolve
Braun   I   hinged   on  the  constitutionality   of   the   2004
reapportionment plan, a subject implicated in Braun IV.  For  the
          same reason that Judge Olsen had jurisdiction to consider the
constitutionality  of  the  2004 plan, Judge  Pengillys  decision
directing Braun to seek relief in the case before Judge Olsen did
not  create[]  a  process that is contrary  to  established  law.
Similarly, Brauns argument that the settlement agreement  created
a process contrary to law because it allow[ed] the Denali Borough
to  delay  fair  and effective representation .  .  .  in  Denali
Borough  by repeatedly putting forth illegal apportionment  plans
must   fail   as  we  have  already  concluded  that   the   2004
reapportionment plan is constitutional.
          2.   The trial courts did not err in their treatment of
               discovery as Braun alleges.
               
          Braun  argues  that  the trial courts  erred  in  their
treatment  of  discovery  by  not demanding  discovery  and  [by]
allowing  the  opposing  attorneys and the  State  of  Alaska  to
withhold evidence.  But Braun did not preserve this objection for
appeal because he did not request discovery in Braun IV, a  point
the  Borough makes and Braun does not contest.69  Moreover,  even
had  he done so, the issue would be moot.  Because Braun conceded
that  he  was  not contesting the procedures by  which  the  2004
election was held, no amount of evidence would transform Braun IV
into  a  valid  election challenge.  Nor has  Braun  preserved  a
discovery  objection  in Braun I, for as he  notes,  the  parties
chose   to  forgo  discovery  in  that  case  on  the  issue   of
constitutionality.70
          3.   Brauns claim of bias fails.
          Brauns  next claim is a general allegation of bias  and
judicial  misconduct on the part of the judges who have  presided
over his various lawsuits:
          The  record  indicates that  [t]rial  [c]ourt
          [j]udges   were  manifestly  erroneous,   not
          impartial,  and have facilitated  efforts  to
          avoid  discovery  and cover  up  evidence  of
          illegal  actions by the State of  Alaska  and
          the Denali Borough.  I argue that some in the
          Fairbanks  Court  are  aiding  the  State  of
          Alaska, the Denali Borough and Mr. Walleri in
          an  attempt  to quash my appeal  before  this
          court.
          
Braun   also   accuses  his  former  attorney   of   deliberately
withholding  crucial  evidence and  claims  that  permitting  the
attorney  to  withdraw  from  his  cases  without  appointing   a
replacement  was  an example of misconduct on  the  part  of  the
courts involved.71  The overall plan, Braun asserts, appears to be
to  narrow the focus and withhold evidence in [Judge Olsens case]
so that my prosecution of that case fails for lack of evidence.
          As  we  have noted, the Alaska Code of Judicial Conduct
requires  that [i]n the performance of judicial duties,  a  judge
shall act without bias and prejudice and shall not manifest [such
bias  or prejudice] by words or conduct.72  Where a judge  has  a
personal bias or prejudice concerning a party or a partys lawyer,
that judge should be disqualified.73  But the burden of proof  is
          on the party alleging bias,74 and the issuance of a ruling adverse
to  that  party is not, in and of itself, sufficient to meet  the
burden.75
          There is no evidence in the record to suggest that  any
of  the judges involved in Brauns cases were biased against  him.
Declining  to appoint counsel is not an indication of  bias  here
because Brauns claims do not fall within any of the categories of
civil cases for which appointment of counsel is required.76   And
we  have  already  concluded that the trial courts  treatment  of
discovery  was  not  error.  Furthermore,  despite  declining  to
decide  the issue, Judge Pengilly actually provided Braun a  list
of three possible methods of challenging the constitutionality of
the Denali Borough voting districts.  Brauns claim of bias fails.
     E.   Braun Is Not Entitled to Attorneys Fees in Braun IV.
          Finally, Braun seeks a judgment declaring him to  be  a
public interest litigant and awarding him his costs and attorneys
fees  in Braun IV.  Alaska Statute 09.60.010(c)(1) provides  that
[i]n   a  civil  action  .  .  .  concerning  the  establishment,
protection,  or  enforcement of a right under the  United  States
Constitution  or  the Constitution of the State  of  Alaska,  the
court  . . . shall award . . . full reasonable attorney fees  and
costs  to  a  claimant, who, as plaintiff . . . has prevailed  in
asserting  the right.  But because Braun did not prevail  on  the
claims  he  asserted in Braun IV, he is not entitled to attorneys
fees in that action.
V.   CONCLUSION
          Braun  is entitled to attorneys fees and costs for  his
challenge  to  the 2002 reapportionment plan under  the  catalyst
theory.   We  therefore  REVERSE Judge  Olsens  decision  to  the
contrary  and REMAND for consideration of the appropriate  award.
But    we   AFFIRM   Judge   Olsens   decision   upholding    the
constitutionality  of  the  2004 Denali  Borough  reapportionment
plan, and we AFFIRM Judge Pengillys grant of summary judgment  to
the  Borough  regarding Brauns challenge of  the  2004  election.
Brauns  remaining  claims  in Braun IV also  fail.   Accordingly,
Braun is not entitled to attorneys fees in that case.
_______________________________
     1     Under  the  one-person, one-vote doctrine,  population
among  the  districts should be equal so that  the  vote  of  any
citizen  is  approximately equal to that of any other citizen  in
the  Borough.  Hickel v. Se. Conference, 846 P.2d 38, 47  (Alaska
1992).   A  total variance indicates the percentage  by  which  a
given   apportionment  deviates  from  this  mathematical  ideal,
calculated  by  adding  the percentage  deviation  of  the  least
populated  district  and the percentage  deviation  of  the  most
populated district.  Kenai Peninsula Borough v. State,  743  P.2d
1352, 1356 n.1 (Alaska 1987); Kentopp v. Anchorage, 652 P.2d 453,
464 (Alaska 1982); Groh v. Egan, 526 P.2d 863, 874 (Alaska 1974).

     2     Braun  v.  Denali Borough (Braun I), Case No.  4FA-02-
02156 CI (2002).  Judge Olsen presided over this case.

     3     Braun  v. Denali Borough (Braun II), Case No.  4FA-03-
02607 CI (2003).  Superior Court Judge Mark I. Wood presided over
this case.

     4     Braun v. Denali Borough (Braun III), Case No. 4FA  04-
02428 CI (2004).  Superior Court Judge Richard D. Savell presided
over this case.

     5     Braun  v. Denali Borough (Braun IV), Case No. 4FA  04-
02616 CI (2004).  Judge Pengilly presided over this case.

     6     At this point, the title of the department had changed
from the Department of Community and Economic Development to  the
Department of Commerce, Community and Economic Development.

     7     Braun  II was dismissed after the negotiation  of  the
settlement agreement. The record indicates that as of  May  2006,
all  Braun  III claims but one, an Open Meetings Act  claim,  had
been dismissed.  We are unaware of any appeal in that case.

     8     Brannon  v. Contl Cas. Co., 137 P.3d 280, 284  (Alaska
2006).

     9    Id.

     10    Bromley v. Mitchell, 902 P.2d 797, 804 (Alaska 1995).

     11    Id.

     12    Kentopp v. Anchorage, 652 P.2d 453, 462 (Alaska 1982).

     13    Id.

     14    See id. (Deference similar to that owed the Governor in
fashioning  a  state reapportionment plan is  due  the  Anchorage
Assembly  in its decisions regarding the adoption of a  municipal
reapportionment plan.).

     15     Kenai Peninsula Borough v. State, 743 P.2d 1352, 1363
(Alaska 1987).

     16    Premera Blue Cross v. State, Dept of Commerce, Cmty. &
Econ.  Dev., Div. of Ins., 171 P.3d 1110, 1115 (Alaska 2007)  (In
questions of law involving an agencys expertise . . . a  rational
basis   standard  is  applied  and  we  defer   to   an   agencys
determination so long as it is reasonable.).

     17     Halter v. State, Dept of Commerce & Econ. Dev.,  Med.
Bd.,  990  P.2d 1035, 1037 (Alaska 1999) (stating that review  of
the  Boards  factual  findings is limited to  whether  there  was
substantial  evidence  in  the  record  to  support  the   Boards
findings); see also Ketchikan Gateway Borough v. Ketchikan Indian
Corp.,  75  P.3d  1042,  1045  (Alaska  2003)  (noting  that  the
substantial evidence test is deferential).

     18    The settlement agreement stayed the case pending voter
decision of assembly apportionment in accordance with the[] terms
outlined  in the agreement, and it conditioned dismissal  of  the
case   [u]pon  approval  by  the  voters  of  a  constitutionally
acceptable apportionment plan.

     19     Reapportionment plans with variances  under  10%  are
prima  facie  constitutional.   Kenai,  743  P.2d  1352,  1366-67
(Alaska  1987); see also Groh v. Egan, 526 P.2d 863, 877  (Alaska
1974).   Though the 1998 amendments to article VI of  the  Alaska
Constitution  may  affect  the  applicability  of  this  rule  to
legislative   apportionments,  as  discussed  in   In   re   2001
Redistricting Cases, 44 P.3d 141, 145-46 (Alaska 2002),  they  do
not   affect   the  applicability  of  the  rule   to   municipal
apportionments.   The  plain language of article  VI,  section  6
makes  clear  that the section applies only to house  and  senate
district  boundaries drawn by the Redistricting Board.  Municipal
apportionment  plans are governed instead  by  statute.   See  AS
29.20.060.120.

     20    In its 2004 reapportionment plan, the Borough achieved
a variance of 9%, versus the 11.9% variance of the previous plan.

     21    Halloran v. State, Div. of Elections, 115 P.3d 547, 553
(Alaska 2005).

     22    Id.

     23    DeSalvo v. Bryant, 42 P.3d 525, 530 (Alaska 2002).

     24    Id.

     25    Id.

     26    We note that the Borough has conceded that Braun is  a
public   interest   litigant   as   to   the   merits   of    his
constitutionality challenge, and in his May 2006 decision,  Judge
Olsen determined that Braun was a public interest litigant.

     27     The  trial court noted that [t]he Denali Borough,  at
12,000  square  miles, is larger than nine of the states  of  the
United States.  With only 1,893 residents, its average population
density is 0.1 person per square mile, and the majority of census
blocks  contain no or virtually no residents.  Braun agrees  that
the  Borough  does have a large area and a small population,  and
the  Borough  comments  that equaliz[ing] election  districts  in
lightly  populated  rural  boroughs is particularly  challenging.
Indeed, we have noted before that [r]edistricting in Alaska is  a
task  of Herculean proportions.  In re 2001 Redistricting  Cases,
44 P.3d 141, 147 (Alaska 2002).

     28    652 P.2d 453, 462 (Alaska 1982).

     29    Id.

     30     Id.;  see also Kenai Peninsula Borough v. State,  743
P.2d 1352, 1363 (Alaska 1987).

     31    743 P.2d at 1366.

     32    Id. at 1366-67.

     33     Id. at 1369 (quoting Davis v. Bandemer, 478 U.S. 109,
133 (1986)).

     34    Id.

     35    Id. at 1370, 1372.

     36    Id. at 1366-67.

     37     In  re  2001  Redistricting Cases, 44 P.3d  141,  144
(Alaska 2002) (quotations omitted).

     38    The plain language of article VI makes it clear that it
governs senate and house apportionment.  Alaska Const. art. VI.

     39    See AS 29.20.060.120.

     40     Each house district shall be formed of contiguous and
compact   territory  containing  as  nearly  as   practicable   a
relatively  integrated socio-economic area.  Alaska  Const.  art.
VI,  6.

     41    Kenai, 743 P.2d at 1365 ([W]e hold that the provisions
of   article   VI,  section  6  which  set  forth  socio-economic
integration,   compactness   and  contiguity   requirements   are
inapplicable  to  redistricting  and  reapportionment  of  senate
districts.).

     42    652 P.2d at 462.

     43     743  P.2d at 1369 (In summation, proof of  purposeful
discrimination alone is insufficient to state a cause  of  action
for  political  gerrymandering.  The plurality in Bandemer  would
require additional proof that the group has been consistently and
substantially excluded from the political process . . . in  order
to raise a constitutional claim.).

     44    Kentopp, 652 P.2d at 462; Kenai, 743 P.2d at 1363.

     45      The  Borough  characterizes  Brauns  attack  on  the
constitutionality  of the 2004 plan as an administrative  appeal.
Braun contests this characterization and points out that his case
challenging  the  constitutionality of the 2004  plan  was  filed
before  administrative review of the plan was completed.  But  we
need  not  reach  this  dispute because it does  not  affect  the
result.   Under  Kentopp and Kenai, our review of reapportionment
plans must be deferential.

     46    Kenai, 743 P.2d at 1371.

     47    Id.

     48    Id.

     49    Id.

     50    Id. at 1372.

     51    Id. at 1370.

     52    Id. at 1372.

     53    Id. at 1372-73.
          
     54    Kentopp, 652 P.2d at 462.

     55    See id.

     56    Walleri v. City of Fairbanks, 964 P.2d 463, 466 (Alaska
1998)  (quoting  Boucher  v. Bomhoff, 495  P.2d  77,  80  (Alaska
1972)).

     57     Walleri,  964  P.2d  at  466;  see  also  DeNardo  v.
Municipality  of  Anchorage,  105 P.3d  136,  140  (Alaska  2005)
(holding  that a cause of action was an election challenge  where
the  plaintiffs sought to void Proposition 2, a remedy that would
both overturn the proposition and mandate a runoff in the mayoral
election).

     58    Walleri, 964 P.2d at 466.

     59    Id.

     60    In the first paragraph of the Braun IV complaint, Braun
stated:   This is an election contest seeking judicial review  of
the regular election held in the Denali Borough on the 2nd day of
November 2004.  In his appeal, Braun argues this phrasing  was  a
procedural  error  by a pro se litigant and mischaracterizes  his
claim.  But Judge Pengilly did not mention this paragraph in  his
decision;  he  concluded Braun IV was an  election  challenge  on
independent grounds.

     61    Walleri, 964 P.2d at 466.

     62    DeNardo, 105 P.3d at 141.

     63    Boucher, 495 P.2d at 80.

     64     Denardo, 105 P.3d at 141 (quoting Dansereau v. Ulmer,
903 P.2d 555, 559 (Alaska 1995)).

     65    AS 15.20.540.

     66    Id.

     67    Denardo, 105 P.3d at 141 (quotations omitted).

     68     Braun  does not specify which trial courts he  means,
although  his subsequent discussion mentions both the Olsen  case
(Braun I) and the Pengilly case (Braun IV).

     69     See Duffus v. Duffus, 72 P.3d 313, 317 (Alaska  2003)
(noting  that we have long adhered to the tenet that matters  not
raised  at  trial  will not be considered on  appeal  (quotations
omitted)).

     70    Braun states in his brief that Mr. Walleri [counsel for
Braun] and Mr. Gorski [counsel for the Borough] agreed, for their
own   reasons,  to  [forgo]  discovery  relative  to  the   equal
protection issue . . . .

     71    Braun states that he fired Walleri in Braun IV and that
two  of  the  other  judges presiding over  his  cases  permitted
Walleri  to  withdraw.  He appears to claim that  each  of  these
judges should have appointed counsel for him.

     72     Hanson  v.  Hanson, 36 P.3d 1181, 1184 (Alaska  2001)
(alteration in original) (quotations omitted).

     73    Id.

     74     See, e.g., Nelson v. Jones, 781 P.2d 964, 972 (Alaska
1989)  (stating,  in the context of a motion to disqualify,  that
the  appellant  was required to establish that the prior  adverse
rulings  were  the  result  of personal  bias  developed  from  a
nonjudicial source).

     75     See Lacher v. Lacher, 993 P.2d 413, 421 (Alaska 1999)
(declining  to  reverse a trial judges refusal to recuse  himself
where  the  appellants  claim of bias was  little  more  than  an
expression  of  [her]  dissatisfaction with the  superior  courts
ruling).

     76     See, e.g.,  Midgett v. Cook Inlet Pre-Trial Facility,
53  P.3d  1105, 1111 (Alaska 2002) (requiring counsel  for  cases
involving   termination  of  parental  rights,   child   custody,
paternity suits, and civil contempt proceedings for nonpayment of
child support (citations omitted)).

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