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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Krone v. State, Dept. of Health & Social Services (12/31/2009) sp-6446

Krone v. State, Dept. of Health & Social Services (12/31/2009) sp-6446

     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

DOROTHY KRONE, SILAS STEVENS, )
and BILLIE WALLACE on behalf of ) Supreme Court No. S-12783
themselves and all those similarly situated, )
) Superior Court No. 3AN-05- 10283 CI
Appellants,)
)
v. ) O P I N I O N
)
STATE OF ALASKA, DEPARTMENT) No. 6446 - December 31, 2009
OF HEALTH AND SOCIAL SERVICES,)
Joel Gilbertson, in his official capacity as )
Commissioner of the Department, )
DIVISION OF SENIOR SERVICES, and )
Rod Moline, in his official capacity as )
Acting Director of the Division, )
)
Appellees.)
)
          Appeal  from  the Superior Court of the  State  of
          Alaska,   Third   Judicial  District,   Anchorage,
          William F. Morse, Judge.

          Appearances:   James  J. Davis,  Jr.  and  Goriune
          Dudukgian, Northern Justice Project, and  Kara  A.
          Nyquist,  Alaska Pro Bono Program, Anchorage,  for
          Appellants.   David  T. Jones, Assistant  Attorney
          General, Anchorage, and Talis J. Colberg, Attorney
          General, Juneau, for Appellees.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Carpeneti, and Winfree, Justices.

          WINFREE, Justice.
I.   INTRODUCTION
          Class representatives prevailed in a class action  suit
concerning  state  constitutional  rights.   The  pro  bono   fee
agreement  between the class representatives and their  attorneys
provided  that  the attorneys would be entitled  to  receive  any
attorneys  fees  awarded  to  the class  representatives  at  the
conclusion of the case.  The superior court determined  that  the
class  representatives were public interest litigants and awarded
them attorneys fees by:  (1) determining appropriate hourly rates
for  their pro bono attorneys; (2) multiplying those rates by  an
appropriate  number  of  attorney hours actually  and  reasonably
expended in connection with the litigation; and (3) then doubling
that amount based on a number of considerations, but primarily to
encourage pro bono service in similar cases.
          We then decided State v. Native Village of Nunapitchuk,1
upholding  the validity of an amendment to AS 09.60.010  intended
to  abrogate  attorneys  fees awards under  our  public  interest
litigation  decisions.  Based on its reading of  Nunapitchuk  and
the  statutory  amendments, the superior court  reconsidered  and
reduced  the attorneys fees award to eliminate the final doubling
factor.  The class representatives appeal.
          We   affirm   the  superior  courts  reliance   on   AS
09.60.010(c)(1), which provides that in a civil action concerning
state  constitutional rights the court shall  generally  award  a
prevailing claimant full reasonable fees. But because it  appears
the   superior  court  felt  constrained  in  its   approach   to
determining  full reasonable fees, we vacate the  attorneys  fees
award  and remand for renewed consideration of an award  of  full
reasonable attorneys fees to the class representatives.
II.  FACTS AND PROCEEDINGS
          Alaskas  Medicaid  Home  and  Community-Based  Services
Waiver  Program (Program) provides long-term health care services
to individuals in their homes or communities as an alternative to
nursing  home  placement.  In 2004 the Department of  Health  and
Social  Services (DHSS) changed the way it determined eligibility
for  the Program; shortly thereafter, it began terminating  newly
ineligible  participants from the Program.  In  August  2005  the
Northern  Justice  Project  (NJP),  representing  putative  class
representatives pro bono, brought suit against DHSS on behalf  of
disabled,  low-income individuals recently  terminated  from  the
Program.   The  class  representatives  alleged  that  DHSS   had
violated  the Program recipients state and federal constitutional
due  process  rights  by terminating them from  the  Program  for
medical  ineligibility without first finding that  their  medical
conditions  had  materially improved.  The class  representatives
did not seek damages, but asked that former benefit recipients be
reinstated  to  the  Program  and  that  no  additional   benefit
recipients  be  terminated from the Program unless their  medical
conditions had materially improved.
          Superior  Court  Judge William F. Morse  certified  the
class  in  January  2006.  The next month DHSS stipulated  to  an
injunction  prohibiting termination of benefits until it  proved,
at  a  full and fair hearing, that a recipients medical condition
had  materially  improved since being admitted  to  the  Program.
          DHSS subsequently restored Program benefits it had already
terminated  and  began developing regulations  defining  material
improvement of medical conditions.  In December 2006 the superior
court entered final judgment in favor of the class.
          In February 2007 the class representatives moved for an
award  of  enhanced  attorneys fees in the  amount  of  $120,000,
approximately  three  times what NJP  asserted  would  be  actual
reasonable  fees.   The  class representatives  argued  this  was
appropriate  because:   (1) the class  was  a  prevailing  public
interest  litigant;  (2)  NJP stood to  receive  no  compensation
beyond  court-awarded fees; and (3) the case was of a  type  that
would  make  it difficult to attract capable counsel without  the
potential for enhanced fees.
          In  support  of the fee motion NJP submitted affidavits
from   two Anchorage attorneys.  One attorney stated that in  the
prevailing  Anchorage  legal market,  reasonable  hourly  billing
rates for the two NJP attorneys would be in the range of $185  to
$210  and $235 to $285, respectively.  The other attorney  placed
reasonable hourly billing rates for the two NJP attorneys at  not
less  than $200 and $275, respectively.  NJP submitted affidavits
showing just over 150 hours of billable attorney time in the case
and calculated a reasonable fee of $15,780 for one attorney based
on  an hourly rate of $200 and $21,642.50 for the other based  on
an hourly rate of $275, for a total of $37,422.50.
          In March 2007 the superior court awarded attorneys fees
of  $67,740,  double  the  amount it concluded  would  be  actual
reasonable fees (based on the hourly rates suggested by  NJP  and
the hours the court deemed compensable).  The court noted several
factors, but stated that [t]he most compelling justification  for
an  enhancement  is  the  testimony  concerning  the  paucity  of
attorneys  both  capable of taking on a case of this  type  [and]
willing  to  do  so  on  a  pro  bono  basis.   DHSS  moved   for
reconsideration,  which the superior court granted.   Before  the
superior  court ruled on reconsideration, we issued our  decision
in  State v. Native Village of Nunapitchuk upholding an amendment
to  AS  09.60.010  intended to modify a  policy-based  nontextual
exception  to Alaska Civil Rule 82 that created special treatment
of  attorneys  fees awards in public interest  litigation.2   The
superior  court then invited the parties to revise their  filings
on the motion for attorneys fees in light of [Nunapitchuk].
          In  June  2007 the superior court amended  its  earlier
award,  reasoning that its justification for the fee  enhancement
had  been  based  on  the line of cases the amended  statute  had
overturned.   The  court reduced the award of attorneys  fees  to
$36,570,  based on the same hourly rates but with more  hours  of
effort,  relying  on a new provision of the amended  statute,  AS
09.60.010(c)(1).3
          The  class representatives appeal, requesting  that  we
reverse  the  superior courts final fee award and  reinstate  its
original fee award.
III. STANDARD OF REVIEW
          A  trial  courts award of attorneys fees  is  generally
reviewed for abuse of discretion.4  An abuse of discretion exists
if an award is arbitrary, capricious, manifestly unreasonable, or
          the result of an improper motive.5  Whether the trial court
correctly  applied the law in determining an award  of  attorneys
fees  is  a question of law that we review de novo.6  We use  our
independent   judgment  when  reviewing   issues   of   statutory
interpretation, adopting the rule of law that is most  persuasive
in  light  of  precedent,  reason,  and  policy.7   We  interpret
statutes  according to reason, practicality,  and  common  sense,
taking into account the plain meaning and purpose of the law,  as
well as the drafters intent.8
IV.  DISCUSSION
     A.   Attorneys Fees Awards for Public Interest Litigants
          
          Alaska   courts   award  partial  attorneys   fees   to
prevailing  parties  in  most civil litigation  as  a  matter  of
course.9   Alaska  Civil Rule 82(a) specifies  that  [e]xcept  as
otherwise  provided  by  law or agreed to  by  the  parties,  the
prevailing party in a civil case shall be awarded attorneys  fees
calculated under this rule.10  Subsection (b)(1) provides that  a
prevailing  party shall receive an award of attorneys fees  based
on  a percentage of the money judgment.11  A prevailing party not
recovering  a money judgment shall receive an award of  attorneys
fees  under subsection (b)(2) based on a percentage of reasonable
actual attorneys fees; the percentage depends on whether the case
went to trial.12  Subsection (b)(3) lists factors that a court may
use  to vary an attorneys fees award calculated under subsections
(b)(1)  or  (b)(2)  of the rule.13  Factors  listed  include  the
complexity  of  the  litigation, the length  of  trial,  and  the
reasonableness of the attorneys hourly rates and  the  number  of
hours expended.14
          The public interest litigation exception to Rule 82 was
first announced in Gilbert v. State,15 the earliest of five cases
later  expressly overruled, at least in part, by the  amended  AS
09.60.010.16    The  public  interest  exception  operated   both
affirmatively,  in that when a public interest litigant  prevails
it   is  entitled  to  an  award  of  full  attorneys  fees,  and
protectively, in that when a public interest litigant is  on  the
losing  side  of  litigation no attorneys fees  may  be  assessed
against  it.17  Four useful criteria for public interest litigant
status were enunciated in Kenai Lumber Co. v. LeResche:18  (1) Is
the  case designed to effectuate strong public policies?  (2)  If
the  plaintiff  succeeds will numerous people  benefit  from  the
lawsuit? (3) Can only a private party have been expected to bring
the  suit? (4) Would the purported public interest litigant  have
sufficient  economic incentive to file suit even  if  the  action
involved only narrow issues lacking general importance?19
          In  2003  the Alaska legislature added subsections  (b)
through  (e)  to  AS  09.60.010.20  Alaska  Statute  09.60.010(b)
provides as follows:
          (b)  Except as otherwise provided by statute,
          a court in this state may not discriminate in
          the  award of attorney fees . . .  in a civil
          action  .  .  .  based on the nature  of  the
          policy  or  interest advocated by the  party,
          the number of persons affected by the outcome
          of  the  case, whether a governmental  entity
          could be expected to bring or participate  in
          the  case, the extent of the partys  economic
          incentive   to   bring  the  case,   or   any
          combination of these factors.
          
The  four factors detailed in subsection (b) are the Kenai Lumber
factors determining whether an action constitutes public interest
litigation.21
          Alaska  Statute  09.60.010(b) was  added  to  expressly
overrule our public interest litigation decisions insofar as they
relate  to the award of attorney fees . . . to or against  public
interest litigants in future civil actions.22  The legislature was
concerned  that [t]he judicially created doctrine respecting  the
award  of  attorney  fees  . . . for or against  public  interest
litigants  [had]  created an unbalanced  set  of  incentives  for
parties  litigating issues that [fell] under the public  interest
litigant  exception,  and  that [t]his  imbalance  [had]  led  to
increased   litigation,  arguments  made   with   little   merit,
difficulties in compromising claims, and significant costs to the
state  and  private citizens.23  The legislature  emphasized  its
concern   that  application  of  the  public  interest   litigant
exception  [had]  resulted in unequal access to  the  courts  and
unequal positions in litigation.24
          Nunapitchuk presented a challenge to AS 09.60.010(b).25
We  upheld  the validity of the legislation, construed  narrowly,
stating  that  although  the amendment abrogates,  in  part,  the
public interest litigant exception, it does not modify Rule 82.26
We  concluded that where Rule 82 applies, the amendment does  not
preclude consideration of any factors under subsection (b)(3)  of
Rule  82 that may justify varying attorneys fee awards calculated
under subsections (b)(1) and (2).27
          B.   The Superior Courts Rulings
          The   superior  court  initially  (before  Nunapitchuk)
reasoned that as prevailing public interest litigants, the  class
representatives  would be normally entitled  to  full  reasonable
attorneys  fees  and, quoting from City of Kenai  v.  Friends  of
Recreation Center, Inc.,28 noted that [v]ictorious public interest
litigants  receive  their full fees from their opponents,  rather
than  the  normal partial reimbursement allowed by  Alaska  Civil
Rule  82  to  encourage  plaintiffs to  raise  issues  of  public
interest.
          The  superior  court  also stated  that  it  found  our
discussion  of  fee enhancement in Municipality of  Anchorage  v.
Gentile29 to be most helpful.  There we noted that the purpose of
Rule  82  is  to  partially  reimburse  prevailing  parties   for
attorneys  fees,  and that where counsel does not  charge  hourly
fees,  a trial court may calculate fees by (1) determin[ing]  the
compensable value of the services the attorneys rendered  to  the
class,  and  (2) apply[ing] Rule 82 to the amount  calculated  in
Step 1 to decide how much [the non-prevailing party] should pay.30
We  held  that while awarding enhanced fees runs counter to  Rule
82,  awards  greater than the product of hours worked and  hourly
rates  are  not precluded by the Rule, and that trial courts  may
          properly consider factors other than the number of hours worked
and  hourly rates in determining the value of services under Step
1.31
          The  superior  court  stated  that  the  NJP  attorneys
deserve[] an enhancement that reflects the contingency, the  lack
of  a  fee from the party, and the efficiencies derived from  the
class  action itself, as well as the lawyers bare bones  tactics.
The   superior   court  also  noted  that  the  most   compelling
justification for an enhancement is to encourage pro bono service
in  similar cases.  The superior court therefore doubled what  it
considered  to  be  actual reasonable fees based  on  NJPs  hours
worked  and  suggested  hourly rates.  The superior  court  later
reversed  itself  after  considering  the  Nunapitchuk  decision.
Reasoning that its original order had been based in large part on
fee enhancement discussions from the line of cases overturned  by
AS  09.60.010(b),  it  decreased the  award  to  full  reasonable
attorney fees (based on the previously approved hourly rates  and
NJPs hours worked) under AS 09.60.010(c)(1).
     C.   Arguments on Appeal
          
          The class representatives argue that in Nunapitchuk  we
concluded  AS  09.60.010(b)  altered  only  the  public  interest
litigant exception to Rule 82, and that enhanced fees cases under
Rule 82, like Gentile, remain good law.  They also argue that the
legislature  did not intend AS 09.60.010(c) to prohibit  enhanced
fees  because the amendments purpose was to provide  for  a  more
equal  footing  for parties in civil actions . . . by  abrogating
the  special  status  given  to public  interest  litigants  with
respect  to the award of attorney fees.32  They contend  that  if
litigants  making constitutional claims are barred from receiving
enhanced  fees, they will not be on equal footing with  litigants
who  are  not  making  constitutional claims  but  who  might  be
entitled  to enhanced fees under Rule 82.  They request  that  we
reverse  the  trial  court and reinstate  its  earlier  award  of
attorneys fees.
          DHSS  points  to the language in Rule 82  stating  that
[e]xcept  as  otherwise  provided by law  or  agreed  to  by  the
parties,  the prevailing party in a civil case shall  be  awarded
attorneys  fees  calculated under this rule.33   DHSS  argues  AS
09.60.010(c)(1)  provides otherwise, requiring  courts  to  award
full  reasonable attorneys fees to prevailing claimants in  civil
actions  concerning  constitutional rights  and  eliminating  the
application  of  Rule 82 to those actions.  DHSS  further  argues
that  an award of full reasonable attorneys fees does not include
more than the product of the number of hours reasonably spent  on
the case, multiplied by a reasonable hourly rate.
     D.   The  Superior Court Did Not Err in Concluding  that  AS
          09.60.010(c)(1)   Applies   and   Provides   for   Full
          Reasonable Attorneys Fees in This Case.
          
          We  recognized in Nunapitchuk that the public  interest
exception  to  Rule 82 was substantive law and that AS  09.60.010
was designed to modify it.34  Alaska Statutes 09.60.010(c) through
(e)   thus  create  a  substantive  fee-shifting  framework   for
          constitutional litigation.35  Subsection (c)(1) provides that in a
civil  action concerning a federal or state constitutional right,
the court shall generally award full reasonable attorneys fees to
a claimant who has prevailed in asserting the right.36
          We   discussed  at  some  length  in  Nunapitchuk   the
interplay  between Rule 82 and substantive fee-shifting  statutes
like AS 09.60.010(c)(1):
          Alaska  has  numerous fee-shifting provisions
          that  are  intertwined with  statutes.57   We
          have interpreted such provisions to call  for
          the  award  of  actual  reasonable  fees,  in
          contrast  to the partial reasonable  standard
          employed in Rule 82 cases.58
          
               Intertwined attorneys fee provisions are
          substantive  in character.59  In cases  where
          they  apply, such provisions govern the award
          of  fees  rather  than Rule  82.60   Rule  82
          itself   recognizes  this,  for  it   applies
          [e]xcept  as  otherwise  provided  by  law.61
          Rule  82  thus contemplates that fee-shifting
          provisions  imposed  by  statutes  should  be
          followed,  rather than the system encompassed
          by the procedural rule.62
          
          ______________

          57    See,  e.g., AS 09.38.095(a) (violations
          of   exemption  act);  AS  09.60.070   (civil
          actions  by  victims of violent  crimes);  AS
          23.10.110(c)  (wage  and  hour  claims);   AS
          23.20.470(a)    (appeals   by    unemployment
          compensation   claimants);  AS   25.30.500(a)
          (actions arising under Uniform Child  Custody
          Jurisdiction & Enforcement Act  a two-way fee-
          shifting  provision); AS  34.03.300  (actions
          arising   out   of  the  Uniform  Residential
          Landlord  &  Tenant Act  a two-way  provision
          awarding  fees to the prevailing  party);  AS
          46.03.763  (state actions to impose penalties
          for discharge of oil).
          
          58    Bobich v. Stewart, 843 P.2d 1232,  1238
          n.9  (Alaska 1992) (interpreting one-way fee-
          shifting  provision of the  Alaska  Wage  and
          Hour  Act  contained  in AS  23.10.110(c)  to
          require  an award of full reasonable fees  to
          the prevailing plaintiff and recognizing that
          the   objective  of  such  an  award  is   to
          encourage  employees  to press  wage-and-hour
          claims);  Rosson v. Boyd, 727 P.2d  765,  767
          (Alaska   1986)  (purpose  of  one-way   fee-
          shifting    provision   contained    in    AS
          34.35.005(b) relating to mechanics  liens  is
          to enable claimants to recover judgments that
          would  otherwise be too small to justify  the
          expense of a lawsuit and an appeal); see also
          Vazquez  v.  Campbell,  146  P.3d  1  (Alaska
          2006).
          
          59    See  Grimes v. Kinney Shoe  Corp.,  938
          P.2d  997,  1002  (Alaska 1997)  (intertwined
          cost  provision in state statute part of  the
          substantive remedy).
          
          60   See cases cited supra note 58.  See also
          Ferdinand v. City of Fairbanks, 599 P.2d 122,
          125   (Alaska  1979)  (federal  civil  rights
          actions  in  state court are governed  by  42
          U.S.C.  1988 rather than Civil Rule 82):
          
               The  purpose of Rule 82 is to  partially
               compensate  a prevailing party  for  the
               expenses  incurred in winning his  case.
               It  is  not  intended as a  vehicle  for
               accomplishing   anything   other    than
               providing  compensation  where   it   is
               justified.  In comparison, the  explicit
               purpose of the fee shifting provision in
               the federal statute, 42 U.S.C.  1988, is
               to  encourage  meritorious claims  which
               might not otherwise be brought.
               
          Still  v.  Cunningham, 94 P.3d 1104,  1116-17
          (Alaska 2004) (provision of the Equal  Credit
          Opportunity Act, 15 U.S.C.  1691e(d),  rather
          than  Rule 82 governed award of fees where  a
          violation  of the federal act was established
          as  an  affirmative defense); Hayer  v.  Natl
          Bank  of  Alaska, 619 P.2d 474,  476  (Alaska
          1980)  (award of fees under the Federal Truth
          and   Lending  Act,  15  U.S.C.   1640(a)(3),
          should have been made in favor of debtors who
          established a violation of the act  and  were
          entitled to a partial set-off).
          
          61   Alaska R. Civ. P. 82(a).
          
          62    See, e.g., Vazquez, 146 P.3d at  2  n.4
          (Civil   Rule  82(a)  itself  provides   that
          statutory attorneys fees are to be awarded in
          preference to those prescribed under the rule
          . . . .).[37]
          
          We  therefore  agree,  in part, with  DHSS.   Under  AS
09.60.010(c)(1)  the class representatives  are  entitled  to  an
award  of full reasonable attorneys fees for prevailing on  their
constitutional  claims  in this case; neither  Rule  82  nor  the
previous public interest litigation exception to Rule 82  governs
the award of attorneys fees to the class representatives.
          We  disagree with DHSSs contention that full reasonable
          attorneys fees under AS 09.60.010(c)(1) may only be determined as
the  product of reasonable hourly rates and the actual reasonable
hours  worked.   The only authority cited by DHSS  is  Bobich  v.
Hughes,38 but all we held in that case is that the trial court did
not  abuse  its  discretion  in  its  award  of  full  reasonable
attorneys fees under an applicable attorneys fees statute.39  The
trial  court  had:  (1) declined a request for  an  enhanced  fee
award  because  the  attorney had unnecessarily  complicated  the
case;40  (2) multiplied the attorney hours spent on the  relevant
issues  by  what it found to be a reasonable hourly  rate;41  and
(3)  then  reduced  that  amount to  account  for  the  attorneys
behavior and vague billing records.42  We concluded that the trial
court  acted within its discretion in determining full reasonable
attorneys fees.43
          We  have  never  held that reasonable  attorneys  fees,
regardless  of  context, may be calculated  only  by  multiplying
reasonable hourly rates by actual reasonable hours worked, and AS
09.60.010(c)(1)  does not suggest any such  limitation.    Actual
fees  are  those the party agrees to pay its lawyer,44  but  when
attorneys  charge an unusually low fee or no fee  at  all  except
that which might be awarded by the court, the proper approach  to
determining  actual reasonable fees is to objectively  value  the
attorneys  services.45   That might  be  accomplished  simply  by
multiplying  reasonable  hourly rates by  the  actual  reasonable
hours   worked,46  or  in  an  appropriate  context,  by  further
considering  value-enhancing factors such as  risk  premiums  and
encouraging  representation  in  similar  cases.47   In   another
appropriate  context,  that might instead be  accomplished  by  a
common  fund  analysis.48  But in every context, a  court  should
carefully consider all factors relevant to reasonableness.49
          Chapter  86,  SLA 2003, particularly AS 09.60.010(b),50
was  intended to abrogate our judicially created public  interest
litigation   framework  that  provided  a  certain  category   of
litigants   with  either  full  reasonable  attorneys   fees   or
protection  against adverse fee awards.51  But  nothing  suggests
that  the  legislature  intended AS 09.60.010(b)  to  restrict  a
courts  discretion in calculating full reasonable attorneys  fees
for  an  award under AS 09.60.010(c)(1).  Indeed the  legislative
history  reflects  a  consensus  that  successful  constitutional
claimants  were  to continue being treated in  the  same  general
manner as successful public interest litigants.
          It is not clear from the record that the superior court
recognized  it was not constrained to use the simple mathematical
model  of  reasonable  rates  times reasonable  hours  worked  to
determine  full  reasonable attorneys  fees  in  this  case.   We
therefore vacate the award and remand for the superior  court  to
consider an award of full reasonable attorneys fees for the class
representatives consistent with this opinion.  We do not mean  to
suggest that the superior court may not, in its discretion, reach
the  same conclusion it reached in its second fee award.  But its
ultimate   conclusion  should  be  reached  only  after   express
consideration of all factors relevant to a determination of  full
reasonable  fees  for a claimant who prevails  on  constitutional
claims.
V.   CONCLUSION
          For  the  foregoing  reasons, we  AFFIRM  the  superior
courts decision that the class representatives are entitled to an
award of full reasonable attorneys fees under AS 09.60.010(c)(1),
but  VACATE the actual award and REMAND for further consideration
of an award of full reasonable attorneys fees.
_______________________________
     1    156 P.3d 389 (Alaska 2007).

     2    See 156 P.3d at 391-92.

     3    AS 09.60.010 provides in pertinent part:

             (c) In a civil action or appeal concerning
          the establishment, protection, or enforcement
          of   a   right   under  the   United   States
          Constitution or the Constitution of the State
          of Alaska, the court
          
             (1) shall award, subject to (d) and (e) of
          this  section, full reasonable attorney  fees
          and  costs  to a claimant, who, as plaintiff,
          counterclaimant,  cross claimant,  or  third-
          party  plaintiff in the action or on  appeal,
          has prevailed in asserting the right . . . .
          
     4    Kellis v. Crites, 20 P.3d 1112, 1113 (Alaska 2001).

     5     Reid v. Williams, 964 P.2d 453, 460 n.17 (Alaska 1998)
(quoting Hughes v. Foster Wheeler Co., 932 P.2d 784, 793  (Alaska
1997)).

     6    Glamann v. Kirk, 29 P.3d 255, 259 (Alaska 2001).

     7     Id. (quoting Philbin v. Matanuska-Susitna Borough, 991
P.2d 1263, 1266 (Alaska 1999)).

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

     9    See Nunapitchuk, 156 P.3d at 394.

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

     11    See Alaska R. Civ. P. 82(b)(1); Reid, 964 P.2d at 461.

     12    Alaska R. Civ. P. 82(b)(2).

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

     14    Id.

     15    526 P.2d 1131, 1136 (Alaska 1974) (holding it was abuse
of discretion to award attorneys fees to the State against losing
party  who  in  good  faith  raised question  of  genuine  public
interest before the court).

     16    Chapter 86,  1-4, SLA 2003; Nunapitchuck, 156 P.3d  at
391-92,  402-06.  The four other cases are Anchorage  v.  McCabe,
568  P.2d  986, 990 (Alaska 1977) ([t]he Gilbert public  interest
exception to Rule 82 is designed to encourage plaintiffs to bring
issues of public interest to the courts.); Thomas v. Bailey,  611
P.2d  536,  541  (Alaska  1980)  (stating  that  public  interest
litigators  should  not be compensated at the rate  provided  for
representing  indigents, but should instead be fully  compensated
at  a  reasonable rate to encourage public interest  litigation);
Se. Alaska Conservation Council, Inc. v. State, 665 P.2d 544, 553
(Alaska  1983)  (stating that because public  interest  exception
seeks  to  encourage the vindication of the public  interest,  we
perceive  no reason to distinguish between the public or  private
character  of  the  defendant  in a  particular  public  interest
lawsuit);  Dansereau v. Ulmer, 955 P.2d 916,  920  (Alaska  1998)
(holding  that  only  exceptional  circumstances  would   warrant
apportion[ing] fees by issue and award[ing] fees only  for  those
issues on which the public interest litigant prevailed).

     17    Nunapitchuk, 156 P.3d at 392 n.2.

     18    646 P.2d 215 (Alaska 1982).

     19    Id. at 222-23.

     20     Chapter 86,  1-4, SLA 2003; see also Nunapitchuk, 156
P.3d  at  391  n.1.   Former  AS 09.60.010  simply  provided,  in
relevant part, that [t]he supreme court shall determine  by  rule
or  order  the  costs, if any, that may be allowed  a  prevailing
party  in  a  civil  action.  Former  AS  09.60.010.   Former  AS
09.60.010 became AS 09.60.010(a) after the amendment.

     21    Kenai Lumber, 646 P.2d at 222-23; Nunapitchuk, 156 P.3d
at 394-95, 405.

     22    Chapter 86,  1(b), SLA 2003.

     23    Id.

     24    Id.

     25    Nunapitchuk, 156 P.3d at 391-92. Nunapitchuk arose from
two  superior  court decisions invalidating the amendment  to  AS
09.60.010 because (1) it purported to change court rules  without
proper  notice or the required two-thirds vote of both houses  of
the  legislature, and (2) it impermissibly impeded access to  the
courts in violation of state constitutional due process and equal
protection  rights.  Id. at 393.  The superior courts  found  the
legislation inseverable and invalidated it in its entirety.   Id.
The  superior courts thus allowed attorneys fees awards under the
public interest litigant exception to Rule 82.  Id.

     26    Id. at 406.

     27    Id. at 392.

     28     129  P.3d 452, 460 (Alaska 2006) (quoting Se.  Alaska
Conservation Council, 665 P.2d at 553).

     29    922 P.2d 248 (Alaska 1996).

     30    Id. at 263.

     31    Id. at 264-65.

     32    Chapter 86,  1(b), SLA 2003.

     33    Alaska R. Civ. P. 82(a) (emphasis added).

     34    Nunapitchuk, 156 P.3d at 402-04.

     35    AS 09.60.010(c) through (e) provide as follows:

             (c) In a civil action or appeal concerning
          the establishment, protection, or enforcement
          of   a   right   under  the   United   States
          Constitution or the Constitution of the State
          of Alaska, the court
          
             (1) shall award, subject to (d) and (e) of
          this  section, full reasonable attorney  fees
          and  costs  to a claimant, who, as plaintiff,
          counterclaimant,  cross claimant,  or  third-
          party  plaintiff in the action or on  appeal,
          has prevailed in asserting the right;
          
             (2)  may not order a claimant to  pay  the
          attorney  fees of the opposing party  devoted
          to claims concerning constitutional rights if
          the  claimant  as plaintiff, counterclaimant,
          cross  claimant, or third-party plaintiff  in
          the  action  or  appeal did  not  prevail  in
          asserting  the  right, the action  or  appeal
          asserting  the  right was not frivolous,  and
          the claimant did not have sufficient economic
          incentive  to  bring  the  action  or  appeal
          regardless   of  the  constitutional   claims
          involved.
          
             (d)  In  calculating an award of  attorney
          fees and costs under (c)(1) of this section,
          
             (1)  the court shall include in the  award
          only   that   portion  of  the  services   of
          claimants attorney fees and associated  costs
          that were devoted to claims concerning rights
          under  the United States Constitution or  the
          Constitution  of  the State  of  Alaska  upon
          which the claimant ultimately prevailed; and
          
             (2) the court shall make an award only  if
          the claimant did not have sufficient economic
          incentive  to  bring the suit, regardless  of
          the constitutional claims involved.
          
             (e)  The  court,  in its  discretion,  may
          abate,  in  full  or  in part,  an  award  of
          attorney  fees  and  costs otherwise  payable
          under  (c)  and  (d) of this section  if  the
          court  finds, based upon sworn affidavits  or
          testimony,  that the full imposition  of  the
          award  would inflict a substantial and  undue
          hardship  upon the party ordered to  pay  the
          fees  and costs or, if the party is a  public
          entity,  upon  the taxpaying constituents  of
          the public entity.
          
     36    Id.  Subsections (c)(2), (d), and (e) are not at issue
in  this  case  and  we express no opinion on their  validity  or
application or on related implications arising from the fact that
Chapter 86, SLA 2003, was not passed by a two-thirds vote of  the
members of each house.  See Nunapitchuk, 156 P.3d at 391-92, 404-
05.

     37    156 P.3d at 403.

     38    965 P.2d 1196 (Alaska 1998).

     39    Id. at 1200-01.

     40    Id. at 1200.

     41    Id.

     42    Id.

     43    Id. at 1201.

     44    Gentile, 922 P.2d at 263.

     45    Id. at 263 n.20 (stating this principle in the context
of  determining  the reasonable value of legal services  for  the
application of Rule 82 percentages).

     46     See Valdez Fisheries Dev. Assn, Inc. v. Froines,  217
P.3d  830, 833 (Alaska 2009) (Froines III) (stating that [c]ourts
often approach the question [of objective reasonableness of fees]
by determining whether the hourly rate charged was reasonable and
whether  the  number of hours worked was reasonable,  and  noting
that  Rule  82(b)(3) factors may be helpful in assessing  whether
the number of hours claimed is reasonable); Thomas v. Bailey, 611
P.2d  536,  541-42  (Alaska  1980) (stating  in  public  interest
litigation  context  that  generally,  full  compensation  at   a
reasonable  rate  per hour will prove adequate, and  noting  that
many  of the same factors used as a guide in determining the  fee
an  attorney should charge a client are applicable [referring  to
factors  now  found  in Alaska Bar R. 35]).  Ch.  86,  SLA  2003,
overruled  Thomas  in  part  by abrogating  the  public  interest
litigant  doctrine,  but the discussion  in  Thomas  relating  to
calculating full reasonable attorneys fees remains valid  in  the
context of fee awards for constitutional claims.

     47    Gentile, 922 P.2d at 264-65; State, Dept Health & Soc.
Servs. v. Okuley, 214 P.3d 247, 250 n.10 (Alaska 2009); see  also
ERA  Aviation,  Inc. v. Lindfors, 17 P.3d 40,  51  (Alaska  2000)
(This  court has affirmed lodestar or risk-enhanced fees only  in
exceptional  circumstances,  when  there  was  a  strong   public
interest   involved,  or  the  attorneys  stood  to  receive   no
compensation  other than the fees granted by the court.)  (citing
Gentile, 922 P.2d at 265 (consideration of risk-enhanced fees  in
class  action); Wise Mech. Contractors v. Bignell, 718 P.2d  971,
975  (Alaska 1986) (affirming fee award greater than  product  of
hours  and  reasonable  rate  when justified  by  complexity  and
novelty  of case, benefit to plaintiff, and contingent nature  of
counsels right to compensation); and Thomas, 611 P.2d at 539, 541-
43 (denying risk-enhanced fees)).

     48     Gentile, 922 P.2d at 265-66; Okuley, 214 P.3d at  250
n.10.

     49    Okuley, 214 P.3d at 251 n.13 (noting factors, generally
encompassed by Alaska Bar Rule 35, that may be considered).   See
also  Froines  III,  217 P.3d at 833 n.17 (noting  Rule  82(b)(3)
factors may be helpful in assessing reasonableness).

     50    AS 09.60.010(b) provides:

          Except  as  otherwise provided by statute,  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, the number of persons
          affected by the outcome of the case,  whether
          a  governmental entity could be  expected  to
          bring  or participate in the case, the extent
          of the partys economic incentive to bring the
          case, or any combination of these factors.
          
     51    Nunapitchuk, 156 P.3d at 389.

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