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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Trask v. Ketchikan Gateway Borough (6/17/2011) sp-6569

Trask v. Ketchikan Gateway Borough (6/17/2011) sp-6569, 253 P3d 616

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

                THE SUPREME COURT OF THE STATE OF ALASKA 

LETA TRASK,                                   ) 
                                              )      Supreme Court No. S-13590 
               Appellant,                     ) 
                                              )      Superior Court No.  1KE-07-00437 CI 
        v.                                    ) 
                                              )      O P I N I O N 
KETCHIKAN GATEWAY                             ) 
BOROUGH,                                      ) 
                                              )      No. 6569 - June 17, 2011 
               Appellee.                      ) 

               Appeal from the Superior Court of the State of Alaska, First 
               Judicial District, Ketchikan, Trevor N. Stephens, Judge. 

               Appearances:      Amanda      M.    Schulz,    Schulz    &    Skiles, 
               Ketchikan, for Appellant. Scott A. Brandt-Erichsen, Borough 
               Attorney,    Ketchikan     Gateway    Borough,     Ketchikan,     for 
               Appellee. 

               Before:    Carpeneti, Chief Justice, Fabe, Winfree, Christen, 
               and Stowers, Justices. 

               STOWERS, Justice. 

I.      INTRODUCTION 

               Leta Trask painted a religious message on her roof.          Ketchikan Gateway 

Borough filed a complaint seeking to enjoin Trask from displaying the message, arguing 

that   the  message     violated   a  borough    ordinance    prohibiting    roof  signs.   Trask 

counterclaimed      for  relief  under   42   U.S.C.     1983,   arguing    that  the  Borough's 

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

enforcement   of   the   ordinance   violated   her   right   to   free   speech. The   superior   court 

concluded that Trask did not have to remove the message because it was not a "sign" for 

the purposes of the ordinance, dismissed Trask's  1983 claim for lack of standing, and 

awarded Trask attorney's fees under the schedule provided in Alaska Civil Rule 82. 

Trask appeals the dismissal of her  1983 claim and the failure to award her enhanced 

attorney's fees.    We hold that Trask has standing to assert a  1983 claim and that her 

counterclaim states a claim for relief under  1983. We therefore reverse and remand for 

further proceedings. 

II.     FACTS AND PROCEEDINGS 

                Leta    Trask   owns    a  house    in  the  Ketchikan     Gateway     Borough.      On 

August 10, 2005, Trask wrote a letter to the Borough stating that she planned to refresh 

and modify a painted Biblical message on her roof and asking whether her intended 
message would require a permit.1            The Borough had recently updated its ordinance 

relating to signs on roofs to provide that "[r]oof-mounted signs, including any signs 

painted on the roof surface, but excepting those mounted on a marquee or canopy, are 
prohibited."2 

                The Borough responded by informing Trask in a letter that she would not 

need   a   permit   because   the   message   as  she   described   it   was   not   a   "sign"   under   the 
definition     included    in  the   Ketchikan     Gateway      Borough     (KGB)     Code.3     Trask 

        1       The   history   of   Trask's   original   Biblical   roof   message   is   described   in 

Lybrand v. Trask, 31 P.3d 801 (Alaska 2001).  See infra note 24 for a summary of this 
history. 

        2       Ketchikan Gateway Borough Code  60.10.090(A)(8). 

        3       KGB Code  60.10.140 defines sign as "[a]ny words . . . [or] figures . . . by 

which anything is made known, such as are used to designate an individual, a firm, an 
association, a corporation, a profession, a business or a commodity or product, which are 
                                                                                        (continued...) 

                                                  -2-                                               6569 

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

subsequently painted a message on her roof that read:  "DO UNTO OTHERS . . . : BY 

YOUR        DEEDS       YOU'RE        KNOWN:         LOVE       YOUR       NEIGHBOR:          YOU'RE 

WELCOME." The roof also displayed a cross and two hearts. The message was painted 

on Trask's relatively flat roof.        As a result, it was mainly visible only to her uphill 

neighbors. 

                After some of Trask's neighbors complained to the Borough about the 

message, the Borough sent Trask several letters informing her that the message violated 

the KGB Code and instructing her to remove it.             In one letter, the Borough threatened 

that citations might be issued if Trask did not remove the message. 

                Trask did not remove the message, so the Borough filed a superior court 

complaint to enjoin Trask from displaying the message and seeking the imposition of a 

$200 fine. The Borough alleged that the message violated KGB Code  60.10.090(A)(8). 

Trask filed a counterclaim alleging, among other things, that the Borough singled her out 

for enforcement based on the content of her message and that as applied to her the 

ordinance      violated   the   First  and   Fourteenth     Amendments        of  the   United    States 

Constitution by restricting her freedom of speech.  She sought relief under 42 U.S.C.  

1983, which provides: 

                Every   person   who,   under   color   of   any   statute,   ordinance, 
                regulation, custom, or usage, of any State or Territory or the 
                District of Columbia, subjects, or causes to be subjected, any 
                citizen    of  the  United    States   or  other  person    within   the 
                jurisdiction     thereof   to   the   deprivation     of  any    rights, 
                privileges,   or   immunities   secured   by   the   Constitution   and 

        3       (...continued) 

visible from any public area and used to attract attention." 

                                                  -3-                                               6569 

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

                 laws, shall be liable to the party injured in an action at law, 
                                                                                          [  ] 
                 suit in equity, or other proper proceeding for redress . . . . 4 

                 The Borough moved to dismiss Trask's counterclaim to the extent it argued 

civil rights violations based on her state constitutional right to free speech.  This motion 

was granted.   Trask then moved for summary judgment on her First Amendment claim. 

She   argued   that   the   ordinance   violated   her   First   Amendment   rights,   that   it   was   not 

content neutral, and that even if it had been, it was not a reasonable time, place and 

manner restriction.       In other words, she argued that the ordinance was not narrowly 

tailored and that it could not withstand strict scrutiny.              Following Trask's motion for 

summary judgment, the superior court found that Trask's roof message was not a "sign" 

as defined by KGB Code  60.10.140.                As a result, the court dismissed the Borough's 

enforcement action.  But the superior court also concluded that Trask lacked standing to 

challenge the constitutionality of KGB Code   60.10.090(A)(8).                        It did not address 

whether Trask could receive relief under  1983 because "the parties [had] not addressed 

this issue."   The Borough subsequently argued that the superior court's order dismissed 

the entire case, but Trask argued that her  1983 claim remained viable.                      The superior 

court requested additional briefing on the  1983 claim, and the Borough responded with 

a motion to dismiss.        The Borough argued that its enforcement action did not violate 

Trask's constitutional rights. 

                 Trask argued that she was entitled to relief under  1983 because "the 

actions of [the Borough] in using the ordinance to demand removal of the painting and 

then file suit again[st] [her] was an overbroad and unconstitutional application of the 

ordinance that had the effect of curtailing her speech."  She argued that even though she 

never     removed     the   sign,   "fear  of   further   prosecution     kept    her  from    making     any 

modifications or performing any upkeep." 

        4        42 U.S.C.  1983 (2006). 

                                                     -4-                                                  6569 

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

              The superior court dismissed Trask's  1983 action because it concluded 

there was no constitutional violation and  Trask did not have standing to litigate the 

constitutionality of the ordinance. 

              Trask    requested  enhanced    attorney's  fees  pursuant  to  Alaska   Civil 

Rule 82(b)(3), arguing that she was the prevailing party because the court found that the 

sign ordinance did not apply to her and dismissed the Borough's cause of action.  Trask 

argued that she should receive full reasonable fees because she minimized litigation 

costs, the case concerned constitutional issues, and the Borough acted in bad faith. 

              The court found that Trask was the prevailing party and awarded her 20% 

of her actual reasonable attorney's fees under Rule 82(b)(2).       It chose not to award 

enhanced fees because it determined the Borough did not act in bad faith and no other 

enhancing factors applied. 

              Trask appeals the superior court's dismissal of her  1983 claim and its 

decision to not award enhanced attorney's fees under Rule 82. 

III.   DISCUSSION 

       A.     Standard Of Review 

              We review a trial court's decision granting or denying a motion to dismiss 
de novo.5  We also review issues of standing de novo.6 

       B.     It Was Error To Dismiss Trask's  1983 Claim. 

              Trask argues that the actions the Borough took in enforcing the ordinance 

against her to have her remove her roof message violated her right to free speech. 

       5      Varilek v. City of Houston, 104 P.3d 849, 851 (Alaska 2004). 

       6      Neese v. Lithia Chrysler Jeep of Anchorage, Inc., 210 P.3d 1213, 1217 

(Alaska 2009) (internal citations omitted). 

                                            -5-                                        6569 

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

                 1.      Trask has standing to bring her  1983 claim. 

                The   Borough   argues   that   Trask   lacks   standing   to   challenge   the   sign 

ordinance because the superior court correctly ruled that the message on her roof is not 

a "sign" and because Trask's right of free expression was not infringed; she did not 

remove the message. 
                 Standing   in   Alaska   generally   is   interpreted   leniently.7     A   litigant   has 

interest-injury standing when she has "an interest adversely affected by the conduct 
complained   of."8       We   have   said:     "[W]e   have   long   interpreted   Alaska's   standing 

requirement leniently in order to facilitate access to the courts.  The basic idea . . . is that 
an identifiable trifle is enough for standing to fight out a question of principle."9 

                The Tenth Circuit Court of Appeals has addressed cases similar to the one 

at hand.   In Christensen v. Park City Municipal Corporation, the court held that 

                one way to establish a claim is to allege that enforcement of 
                an express policy made by lawmakers causes a constitutional 
                deprivation.       "Local   governing   bodies   .   .   .   can   be   sued 
                directly under  1983 . . . where . . . the action that is alleged 
                to   be   unconstitutional   implements   or   executes   [an]   .   .   . 
                ordinance       . . . officially adopted and promulgated by that 
                body's officers.[10] 

InFaustin v. City of Denver, Colorado, the Tenth Circuit held that a woman had standing 

to   sue   for   damages,   including   nominal   damages,   based   on   any   prosecution   she   had 

        7       State v. Planned Parenthood of Alaska, 35 P.3d 30, 34 (Alaska 2001). 

        8        Trustees for Alaska v. State, Dep't of Natural Res., 736 P.2d 324, 327 

(Alaska 1987). 

        9       Planned   Parenthood,   35   P.3d   at   34   (internal   citations   and   quotations 

omitted). 

        10      554 F.3d 1271, 1279 (10th Cir. 2009) (quoting Monell v. Dep't of Soc. 

Servs., 436 U.S. 658, 690 (1978)). 

                                                   -6-                                              6569
 

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

already experienced before a city prosecutor determined that an ordinance under which 

she had been prosecuted for displaying an anti-abortion banner on an overpass did not 
apply to her.11 In two other cases, the Tenth Circuit found that a threat of arrest was 

enough   to   confer   standing   to   claim   retrospective   damages,12      and   that   litigants   had 

standing when they were forced to leave a jurisdiction to avoid prosecution under an 
ordinance.13  In contrast, that court found that a litigant lacked standing when he was "not 

cited, prosecuted, or even threatened with citation or prosecution"; the litigant's assertion 

that he was fearful he would be prosecuted for violating a statute was insufficient to 
provide standing.14 

                In a case similar to this one, the Eighth Circuit Court of Appeals ruled that 

although a plaintiff did not have standing for injunctive relief, she had standing to claim 

damages under  1983 for an as-applied challenge even though she was not prosecuted 
and the city declared the ordinance inapplicable to her.15 

                Here, Trask's alleged injuries are more than merely trifling.16               Her suit 

pertains to a question of principle: She is arguing that her First Amendment rights were 

actually and prospectively violated by the Borough because the Borough's enforcement 

        11      268 F.3d 942, 948 (10th Cir. 2001). 

        12      PETA v. Rasmussen, 298 F.3d 1198, 1203 (10th Cir. 2002). 

        13      Dias v. City of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009). 

        14      Winsness v. Yocom, 433 F.3d 727, 732 (10th Cir. 2006). 

        15      Harmon v. City of Kansas City, Mo., 197 F.3d 321 (8th Cir. 1999). 

        16      Trask had a history of expressing her Biblical messages on her roof.                See 

supra note 1.   It is apparent that Trask wanted to express a new message (indeed, she did 
so), and thus "refreshing or modifying" her message was her way of saying she wanted 
to exercise her constitutional right to speak.  This provides ample grounds for standing 
and is certainly more than a "mere trifle." 

                                                   -7-                                            6569
 

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

action was aimed directly at her.            We agree.       Although she was not prosecuted for 

violating   the   Borough   ordinance,   the   Borough   ordered   her   to   remove   her   message, 

threatened her with citations for violating the ordinance, and filed a complaint against her 

in which it requested injunctive relief prohibiting her from displaying the message, the 

imposition of a $200 civil penalty, and attorney's fees and costs.                   As a result of the 

enforcement actions, Trask alleges that she did not refresh or modify her roof paintings. 

By    alleging    that  the   Borough     infringed    on   her   right  to  free   speech    through    an 

enforcement action that was aimed directly at her, she has articulated enough of an injury 

to confer interest-injury standing.  Because Trask alleged an injury that confers standing, 

we must next address whether Trask can receive relief under  1983. 

                 2.      Trask presented an actionable  1983 claim. 

                 Trask argues that she is entitled to relief under  1983 as a result of the 

Borough's   actions.        She   stated   in   her   counterclaim   that   the   Borough   sued   her   for 

violating KGB Code  60.10.090(A)(8), seeking injunctive relief and a monetary penalty. 

Trask alleged that the KGB Code "violates the First and Fourteenth Amendments . . . as 

applied because it creates an effective ban on constitutionally protected speech" and 

because      "it  is  not  the   least  restrictive   means     of  accomplishing       any   compelling 

governmental purpose."  She alleged that "[b]y enforcing KGB Code  60.10.090 (A) 

& (B), Ketchikan Gateway Borough, acting under the color of state law, deprived and is 

depriving,   Leta   Trask   of   her   rights   guaranteed   and   protected   by   the   United   States 

Constitution" and that the Borough "is liable for any such actions which violate Leta 

Trask's constitutional rights."         The counterclaim expressly stated that her claims were 

in part based upon 42 U.S.C.  1983. 

                 The Borough argues that Trask's claim is not a proper  1983 claim.  The 

Borough originally filed a motion to dismiss under Civil Rule 12(b)(6) for failure to state 

a   claim   upon   which   relief   can   be  granted.   It   is   unclear   whether   the   superior   court 

                                                    -8-                                              6569
 

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

dismissed the claim as a Civil Rule 12(b)(6) dismissal for failure to state a claim or as a 

Civil Rule 56(c) dismissal on summary judgment.                 In context, it appears the superior 

court dismissed Trask's claim under a Rule 12(b)(6) analysis, and we have analyzed the 
court's order accordingly.17  To survive a motion to dismiss, a complaint need only allege 

a set of facts consistent with and appropriate to some cause of action.18 

                In evaluating a  1983 claim against a municipality, a court must consider: 

"(1)   whether   plaintiff's   harm   was   caused  by   a   constitutional   violation,   and   if   so, 
(2) whether the city is responsible for that violation."19 

                First, then, we must consider whether Trask alleged a set of facts consistent 

with a constitutional violation.   The regulated speech at issue here is a Biblical message 
displayed   on   private property.20      When   assessing   whether   a   time,   place,   or   manner 

restriction   on   residential   messages   is   constitutional,   the   court   must   first   determine 

        17      Even if the superior court dismissed Trask's claim by summary judgment 

pursuant to Civil Rule 56(c), Trask has alleged facts consistent with stating an actionable 
 1983 claim and raised genuine issues of material fact sufficient to defeat a motion for 
summary judgment. 

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

(internal quotations omitted). 

        19      Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992). 

        20      The U.S. Supreme Court emphasized the importance of signs located on 

private property in City of Ladue v. Gilleo, 512 U.S. 43 (1994).   It noted that "[a] special 
respect for individual liberty in the home has long been part of our culture and our 
law . . .; that principle has special resonance when the government seeks to constrain a 
person's ability to speak there."  Id. at 58.   The Court discussed the uniqueness of signs: 
"Displaying a sign from one's own residence often carries a message quite distinct from 
placing the same sign someplace else, or conveying the same text or picture by other 
means. Precisely because of their location, such signs provide information about the 
identity of the 'speaker.' "  Id. at 56.       The Court also noted that "[r]esidential signs are 
an unusually cheap and convenient form of communication . . . [that] may have no 
practical substitute."  Id. at 57. 

                                                   -9-                                             6569
 

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

whether   the   restriction   is   content-neutral   or  content-based.21     The   government   may 

impose content-neutral time, place, or manner restrictions on protected speech if the 

restrictions "are narrowly tailored to serve a significant governmental interest, and [if] 
they leave open ample alternative channels for communication of the information."22 

Content-based restrictions are constitutional if the statute or ordinance is "tailored to 
serve a compelling state interest and is narrowly drawn to achieve that end."23 

                Trask alleged that the actions of the Borough in applying the ordinance to 

her were "an overbroad and unconstitutional application of the ordinance that had the 

effect   of   curtailing   her   speech"   and   that   "fear   of   further   prosecution   kept   her   from 

making any modifications or performing any upkeep." Assuming that her allegations are 

true, as we must when evaluating a Rule 12(b)(6) motion to dismiss, Trask alleged a set 

of facts consistent with stating a claim that her speech - a message displayed on private 
property - was protected.24 

                Trask     also  alleged   facts   consistent   with   a  claim   that  the   Borough's 

application of the ordinance to her did not serve any significant governmental interest 

given the Borough's initial position, confirmed by the superior court, that the ordinance 

        21      Crawford v. Lungren, 96 F.3d 380, 384 (9th Cir. 1996) (The "principal 

inquiry" in determining whether a regulation is  content-neutral or content-based "is 
whether the government has adopted [the] regulation . . . because of [agreement or] 
disagreement with the message it conveys.             As a general rule, laws that by their terms 
distinguish favored speech from disfavored speech on the basis of the ideas or views 
expressed are content-based.") (citing Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 
622, 642 (1994)). 

        22      Ward      v.  Rock   Against    Racism,    491   U.S.   781,   791   (1989)    (internal 

quotations omitted). 

        23      Crawford, 96 F.3d at 384 (internal quotations omitted). 

        24      E.g., City of Ladue, 512 U.S. at 48 (explaining that "signs are a form of 

expression protected by the Free Speech Clause"). 

                                                  -10-                                            6569
 

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

did not apply to Trask's sign at all.        In a letter to the Borough dated August 10, 2005, 

Trask requested written confirmation that she did not need a permit for the message on 

her roof.   The Borough responded in writing that Trask did not need a permit.                    Trask 

painted the sign on her roof. Trask's neighbors, who lived uphill and adjacent to Trask's 
property, complained to the Borough.25           After this complaint, the Borough changed its 

position on whether Trask's message was a sign. 

                In addition, in determining that the ordinance did not apply to Trask's 

message,   the   superior   court   found   that   the   ordinance   was   meant   to   regulate   only 

commercial signs, not residential signs.            The court also found that Trask's message 

appeared   to   be   "the   only   non-commercial   'sign'   to   have   ever   been   an   issue   for   the 

[Borough]." Trask's factual allegationsare consistent with a constitutional violation and 

sufficient to overcome the Borough's motion to dismiss. 

                Trask must also allege facts consistent with stating a claim that the Borough 

is   responsible     for  that  violation.    To    show     municipal     liability,  a  litigant  must 

"demonstrate that, through its deliberate conduct, the municipality was the 'moving 
force' behind the injury alleged."26        When a litigant claims that "a particular municipal 

        25      The   contentious   early   history   between   Trask   and   her   neighbors   was 

described in Lybrand v. Trask, 31 P.3d 801, 802 (Alaska 2001).  After fire damaged the 
Lybrand's home, uphill and adjacent to Trask's property, the Lybrands rebuilt their 
home.    Debris fell from their property onto Trask's property.             The parties were unable 
to resolve their dispute amicably.  Trask painted the following Biblical passages in large 
print on her roof: " 'DO UNTO OTHERS,' 'LUK 6:31 MAT 7:12 19:19,' 'LOVE THY 
NEIGHBOR,' 'BY THIER [sic] (DEEDS) YE SHALL KNOW THEM,' 'MAT 7:20.' " 
George   Lybrand   sought   a   superior   court   injunction   ordering   Trask   to   remove   the 
message.   Elizabeth   Lybrand   sought   damages   for   intentional   infliction   of   emotional 
distress, claiming Trask painted the message for vexatious and retaliatory purposes. 

        26      Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 404 (1997) (emphasis in 

original). 

                                                  -11-                                             6569
 

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

action itself violates federal law, . . . resolving these issues of fault and causation is 
straightforward."27 

                Trask expressly alleged that the Borough's enforcement of the ordinance 

against her violated her First Amendment right to free speech.                This claim is clear and 

straightforward.     Taking Trask's allegation as true, she has successfully set forth facts 
stating a claim that the Borough is responsible for the constitutional violation.28 

                3.      Imbler v. Pachtman does not confer immunity on the Borough. 

                The Borough argues that it is entitled to absolute immunity from Trask's 
claim under the holding in Imbler v. Pachtman.29  But Imbler does not apply to this case 

because it provides that prosecutors, not municipalities, are absolutely immune, and 
addresses a malicious prosecution claim, not a free speech claim.30                   The Borough's 

argument that "[t]he prosecution of a violation of an ordinance is not actionable under 

   1983"   is   also   inapplicable   to   this   case. The   Eighth   Circuit   case   upon   which   the 

Borough   relies   provides   that   "an   action   for   malicious   prosecution  by   itself   is   not 

        27      Id. (emphasis in original). 

        28      Christensen, 554 F.3d at 1279-80 (determining that plaintiff's arguments 

that "[t]he challenged ordinances . . . are not narrowly tailored and violate the First 
Amendment . . . [and that] ordinances as applied violate the constitutional rights of 
plaintiff"   to   engage   in   protected   activity   were   "sufficient   to   establish   a   claim   of 
municipal liability" because "[i]f a governmental entity makes and enforces a law that 
is unconstitutional as applied it may be subject to liability under  1983.") (citations 
omitted). 

        29      Imbler v. Pachtman, 424 U.S. 409 (1976). 

        30      Id. at   422-23. 

                                                  -12-                                             6569
 

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

punishable under  1983 . . . ."31        But Trask is not claiming malicious prosecution; she 

is claiming violation of the First Amendment, which is actionable under  1983.32                      The 

Supreme Court has clearly stated that "municipalities have no immunity from damages 
liability flowing from their constitutional violations . . . ."33 

        31       Pace v. City of Des Moines, 201 F.3d 1050, 1055 (8th Cir. 2000) (internal 

alterations omitted) (emphasis added). 

        32       Federal Civil Rights Act, 42 U.S.C.  1983 (1976) provides in relevant part: 

                 Every   person   who,   under   color   of   any   statute,   ordinance, 
                 regulation, custom, or usage, of any State . . . subjects, or 
                 causes to be subjected, any citizen of the United States . . . to 
                 the   deprivation     of   any   rights,  privileges,    or   immunities 
                 secured by the Constitution and laws, shall be liable to the 
                 party   injured   in   an   action   at   law,   suit   in   equity,   or   other 
                 proper proceeding for redress. 

        33       Owen v. City of Independence, Mo., 445 U.S. 622, 657 (1980). 

                                                    -13-                                              6569
 

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

               4.     Trask alleges sufficient injury to sustain a  1983 claim. 

               Trask has asserted an actionable  1983 claim, and in order to obtain relief 

under  1983, she does not have to allege any specific damages or injury.  A litigant may 

recover nominal damages for a  1983 claim for violation of First Amendment rights 
"even without proof of actual injury."34  Especially at the pleading stage, a litigant need 

not show a complete chilling of First Amendment rights; it is sufficient for a litigant to 

allege facts showing that "an official's acts would chill or silence a person of ordinary 
firmness from future First Amendment activities."35  The litigant does not have to show 

that her speech was "actually inhibited or suppressed."36  Because Trask has alleged facts 

sufficient to state a claim under  1983, it was error to dismiss Trask's counterclaim. 

Trask's  1983 claim is remanded for further proceedings. 

       C.      Attorney's Fees 

               The superior court awarded Trask attorney's fees under Civil Rule 82(b)(2), 

which provides that "the prevailing party in a case resolved without trial [shall receive] 

20 percent of its actual attorney's fees which were necessarily incurred."  She argues it 

was error to not award her full reasonable fees under Civil Rule 82(b)(3). 

               Because we are reversing the superior court's dismissal of Trask's  1983 

claim and remanding to the superior court for further proceedings consistent with this 

opinion, we vacate the award of Civil Rule 82 attorney's fees.        Because we vacate the 

award, we need not decide whether it was error to deny Trask's claim for enhanced Civil 

Rule 82(b)(3) attorney's fees.    In light of the foregoing analysis, we note that if Trask 

       34      Yniguez    v.  Arizonans   for  Official  English,  42  F.3d  1217,   1243   (9th 

Cir. 1994). 

       35      Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th Cir. 

1999) (internal citations omitted). 

       36      Id. (internal citations omitted). 

                                             -14-                                         6569
 

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

prevails on her  1983 action, she may be entitled to attorney's fees under 42 U.S.C.  

           37 
1988(b). 

IV.     CONCLUSION 

                 We   REVERSE   the   superior   court's  dismissal   of   Trask's      1983   claim 

because Trask had standing to assert a  1983 claim and she alleged a set of facts stating 

a   claim   that   the   Borough   violated   her   right   to   free   speech. We   also   VACATE   the 

attorney's   fees   award   and   REMAND   to   the  superior   court   for   further   proceedings 

consistent with this opinion. 

        37       42 U.S.C.  1988(b) (2000) provides:              "In any action or proceeding to 

enforce a provision of section[] . . . 1983 . . . of this title . . . the court, in its discretion, 
may allow the prevailing party . . . a reasonable attorney's fee as part of the costs . . . ." 

                                                   -15-                                                 6569 
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