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


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

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alliance of Concerned Taxpayers, Inc. v. Kenai Peninsula Borough (4/6/2012) sp-6658

Alliance of Concerned Taxpayers, Inc. v. Kenai Peninsula Borough (4/6/2012) sp-6658

        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 



ALLIANCE OF CONCERNED                           ) 

TAXPAYERS, INC.,                                )       Supreme Court No. S-13594 

                                                ) 

                        Appellant,              )       Superior Court No. 3KN-07-00896 CI 

                                                ) 

        v.                                      )       O P I N I O N 

                                                ) 

KENAI PENINSULA BOROUGH                         )      No. 6658 - April 6, 2012 

and KENAI PENINSULA                             ) 

BOROUGH SCHOOL DISTRICT,                         ) 

                                                ) 

                        Appellees.              ) 

                                                ) 



                Appeal from the Superior Court of the State of Alaska,  Third 

                Judicial District, Kenai, Anna M. Moran, Judge. 



                Appearances: Kenneth P. Jacobus, Kenneth P. Jacobus, P.C., 

                Anchorage, for Appellant.        Colette G. Thompson, Borough 

                Attorney, Soldotna, for Appellees. 



                Before:      Carpeneti,     Chief   Justice,   Fabe,   Winfree,     and 

                Stowers, Justices. [Christen, Justice, not participating.] 



                FABE, Justice. 



I.      INTRODUCTION 



                In an October 2007 election, Kenai Peninsula Borough voters approved 



local initiatives establishing term limits for members of the Borough Assembly and the 


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

school   board.     But   voters   also   reelected   five   incumbents   who,   by   the   terms   of   the 



initiatives, would be ineligible to serve an additional term.           The Alliance of Concerned 



Taxpayers (ACT) filed a lawsuit against the Borough requesting a court declaration that 



the initiatives applied to candidates chosen in the October 2007 election and that the 



seats held by the five incumbents were vacant.  The Borough argued that the initiatives 



were invalid.   The superior court granted partial summary judgment to ACT and partial 



summary   judgment   to   the   Borough   and,   therefore,   did   not   designate   either   as   the 



prevailing party.      ACT appeals the superior court's decision not to name a prevailing 



party and argues that ACT should have been named the prevailing party.                    Because we 



conclude that ACT and the Borough both prevailed on distinct issues central to the case, 



we affirm the superior court's decision not to name a prevailing party or award attorney's 



fees and costs to either party. 



                ACT also contends that the local initiative power arises under the Alaska 



Constitution and that ACT is therefore a public interest litigant raising a constitutional 



issue and is entitled to full attorney's fees under AS 09.60.010(c).             The same question 



is before us in a separate appeal involving the same parties.   In that case, we reaffirm that 



the local initiative power is statutory and not constitutional in   origin.             We therefore 



conclude that ACT did not assert a constitutional right that would entitle it to attorney's 



fees under AS 09.60.010(c). 



II.     FACTS AND PROCEEDINGS 



        A.      Facts 

                In   the   October    2,  2007    regular   election,1  Borough      voters   approved 



propositions      establishing     term   limits   for   members      of  the   Borough      Assembly 



        1       Although the superior court order identified the date of this election as 



October 7, a resolution certifying   the   election results indicates that it took place on 

October 2. 



                                                  -2-                                               6658 


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

(Proposition      2)  and   the  School   Board    (Proposition     3).  The    initiatives   prohibited 



members of the assembly and school board who had served two consecutive terms in 



office from serving any part of an additional term until three years had passed from the 



end of the second term of service.          In the same election, however, voters reelected five 



incumbent Borough officials whose reelection violated the terms of Propositions 2 or 3: 



three assembly members and two school board members.   The Borough was faced with 



what the superior court described as a difficult choice:  either to "carry out the will of the 



voters . . . who returned these candidates to office" or to "carry out the will of the voters 



in   the  areawide     election   that  approved     the  .  .  .  term  limits  restrictions  on   these 



candidates."      The   assembly   and   school   board   eventually   decided   to   seat   all   of   the 



incumbents. 



        B.      Proceedings 



                ACT   filed   a   complaint   requesting   declaratory   and   injunctive   relief   on 



October 22, 2007.       Specifically, ACT requested a declaration that (1) both initiatives 



applied   to   the   October   2,   2007   election   and   (2)   the   five   reelected   incumbents   were 



occupying their seats in violation of the term limits initiatives.   ACT also requested full 



attorney's fees and costs. 



                The Borough asserted affirmative defenses and a counterclaim that focused 



on three main arguments: (1) Proposition 2 was invalid because Borough voters "lack 



the authority to impose limitations on the number of terms a school board member may 



serve"; (2) both initiatives were invalid as applied to candidates running in the same 



election; and (3) both initiatives were invalid in their entirety. 



                The Borough moved for summary judgment. First, the Borough argued that 



state law does not permit term limits for school board members because the State has 



authority over public education, and a municipality "cannot enact an ordinance which 



                                                   -3-                                             6658
 


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

conflicts     with   a   state  education     statute."2    Although       state   statutes   setting   out 



qualifications for borough assembly members specifically authorize local adoption of 



term   limits,   statutes   setting   out   necessary   qualifications   for   municipal   school   board 

members   do   not   provide   for   term   limits.3   Second,   the   Borough   contended   that   the 



initiatives violate voters' rights to select candidates of their choice and candidates' rights 



to run for and hold public office and to equal protection.  The Borough emphasized that 



applying the initiatives to the October 2007 election results "would impose an even more 



severe   burden   on   the   fundamental   rights   to   vote   and   to   access   the   ballot."  As   the 



Borough noted, candidates for the 2007 election had declared their candidacy and voters 



had selected among them "without knowing whether the candidates would be subject to 



term limits."   Applying the initiatives to disqualify the five reelected incumbents would, 



according   to   the   Borough,   allow   voters   in   the   area-wide   election   that   approved   the 



initiatives "to nullify other voters' selections of candidates in individual districts." 



                 ACT filed a cross-motion for summary judgment.                 First, ACT contended 



that state law permits term limits for school board members because it permits term limits 



for those who serve as both assembly and school board members in boroughs where the 

public school population is 500 or fewer students.4           Second, ACT argued that term limits 



are constitutional because they do not impermissibly burden voters' and candidates' 



        2       Municipality of Anchorage v. Repasky , 34 P.3d 302, 311 (Alaska 2001). 



        3        Compare AS 29.20.140(d) (authorizing local adoption of term limits for 



borough       assembly       members       "by    ordinance      ratified    by    the   voters"),    with 

AS    14.12.030-.080       (setting   out   requirements     for  school   boards     and  school   board 

members and stating that "[n]othing in this section prevents school board members from 

succeeding themselves"). 



        4        See AS 14.12.110 (allowing single body to serve as both assembly and 



school board); AS 29.20.140(d) (authorizing local adoption of term limits for borough 

assembly members "by ordinance ratified by the voters"). 



                                                    -4-                                              6658
 


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

rights and are tailored to serve a compelling government interest.  Finally, ACT asserted 



that Borough voters "knew or should have known" that voting for the initiatives would 

affect the incumbent candidates' qualification for public office.5 



                 The   superior   court   issued   an   order   on   the   cross-motions   for   summary 



judgment on August 14, 2008.             The order granted summary judgment for the Borough 



in part and denied it in part.      The superior court agreed with the Borough that state law 



does not permit term limits for school board members and therefore found Proposition 3 



to   be   invalid.     The   superior    court   agreed    with   ACT     that  the   initiatives   did  not 



unconstitutionally burden voters' and candidates' rights generally but also determined 

that the initiatives burdened those rights as applied to the 2007 election.6                The superior 



court therefore severed the portion of Proposition 2 applying it to the 2007 election and 



concluded that it would apply to elections beginning in 2008. 



                 Each party claimed that it was the prevailing party in the lawsuit and moved 



for   attorney's   fees.    ACT   argued   that   it   was   entitled   to   full   attorney's   fees   under 



AS     09.60.010(c)     because     the  lawsuit   concerned      "the  establishment,   protection,   or 



         5       At least one newspaper article discussed the initiatives' possible effect on 



the five incumbents. 



         6       The superior court concluded that state interests in "encourag[ing] new 



qualified candidates and avoid[ing] entrenched incumbency" were compelling and that 

the initiatives were carefully tailored to achieve those objectives and did not restrict "an 

individual's   right   to   vote   and    seek   elective   office   so   as   to   render   [the   initiatives] 

unconstitutional." However, the superior court ruled that applying Proposition 2 to the 

2007 election       would "nullify the voters' choices" and violate voters' rights provisions 

of the First and Fourteenth Amendments of the United States Constitution and article I, 

section 5 of the Alaska Constitution. 



                                                    -5-                                               6658
 


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

enforcement" of a state constitutional right.  The Borough, in turn, requested 20% of its 

actual attorney's fees under Rule 82.7        Each party opposed the other's motion. 



                The superior court declined to name a prevailing party in the case.  In an 



order dated July 28, 2009, the superior court explained that it found in favor of ACT by 



declaring Proposition 2 valid "on the grounds that [the Alaska Statutes] allowed local 



bodies to enact term limits" but in favor of the Borough by declaring Proposition 2 



invalid as applied to the October 2007 election and by declaring Proposition 3 invalid 



"on the grounds that the power to regulate education rests with the [Alaska] Legislature." 



Because "each party prevailed on some issues and lost on others," the superior court 



concluded that "neither party could be truly characterized as the prevailing party" and 



ordered the parties to bear their own costs. 



                The parties do not appeal the substance of the superior court's ruling. ACT 



appeals the superior court's decision not to designate a prevailing party and not to award 



ACT attorney's fees and costs. 



III.    STANDARD OF REVIEW 



                We review a trial court's determination of the prevailing party for purposes 

of   awarding   attorney's   fees   and   costs   for   abuse   of   discretion.8 We   will   overturn 



prevailing party determinations "only if they are manifestly unreasonable."9 



        7       See Alaska R. Civ. P. 82(a)-(b). 



        8       Hutchins v. Schwartz , 724 P.2d 1194, 1204 (Alaska 1986). 



        9       Progressive Corp. v. Peter ex rel. Peter , 195 P.3d 1083, 1092 (Alaska 



2008)   (citing  Interior   Cabaret,   Hotel   Rest.   &   Retailers   Ass'n   v.   Fairbanks   N.   Star 

Borough , 135 P.3d 1000, 1002 (Alaska 2006)). 



                                                  -6-                                            6658
 


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

IV.     DISCUSSION 



                ACT argues that it was an abuse of discretion for the superior court to 



decline to designate ACT as the prevailing party because it prevailed on the question 



whether term limits imposed on the members of the assembly were valid.  ACT calls the 



validity of imposing term limits "the main issue in the case" and contends that the date 



on which those limits are imposed is insignificant.  The Borough responds that this case 



involved at least three issues: (1) the constitutional validity of the term limits imposed 



by these initiatives; (2) the statutory validity of term limits for members of the school 



board;     and   (3)  the   applicability    of  any    valid   term   limits   on   officials   elected 



simultaneously with enactment of the initiatives.            The Borough argues that because it 



prevailed on two of the three issues, the superior court's decision not to designate a 



prevailing party was reasonable.         We agree. 



                A   prevailing   party   is   "one   who   successfully   prosecutes   the   action   or 



successfully defends against it, prevailing on the main issue, even though not to the 

extent of the original contention."10        But when both parties prevail on main issues, the 



superior court may also opt not to designate a prevailing party.11  We have explained that 



"where each party has prevailed on a main issue the court retains discretion to refrain 



        10      K & K Recycling, Inc. v. Alaska Gold Co. , 80 P.3d 702, 721 (Alaska 2003) 



(quoting Tobeluk v. Lind, 589 P.2d 873, 876 (Alaska 1979)); see also Progressive Corp., 

195 P.3d at 1092 ("A plaintiff may prevail even if he or she fails to recover all the relief 

prayed for."). 



        11      See Fernandes v. Portwine, 56 P.3d 1, 7-8 (Alaska 2002) (holding that the 



superior   court's   decision   not   to   designate   a   prevailing   party   was   "reasonable"   and 

therefore not an abuse of discretion where both parties "prevailed on some issues and lost 

on others"). 



                                                  -7-                                             6658
 


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

from characterizing either as the prevailing party, and a denial of attorney costs and fees 

in such instances is appropriate."12 



                The central question, therefore, is whether the three issues identified by the 



superior court constitute "main issues."         We conclude that they do.        The superior court 



made three legal rulings regarding the term limits initiatives: first, that term limits for 



school board members are prohibited by statute; second, that term limits for assembly 



members are not prohibited by the constitution; and third, that it would nonetheless be 



unconstitutional      to  apply  term   limits  for  assembly     members     to  the  results  of  the 



October 2007 election. 



                The     superior   court's    first  ruling   concerned     ACT's     argument      that 



Proposition 3 "amend[ed] the Borough Code to prohibit anyone from serving more than 



two consecutive terms on . . . the Borough School Board."               In their cross-motions for 



summary       judgment,    the  Borough     and   ACT     debated   whether     the  Alaska    Statutes 



permitted term limits for school board members. In its order, the superior court analyzed 



AS 14.12.030-.115, which concern school boards within the state, and AS 29.20.140(a), 



which permit term limits for assembly members, together.                 Based on this analysis, it 



concluded that Proposition 3 was invalid. 



                The    superior    court's   second    ruling   evaluated    ACT's     argument     that 



Proposition 2 "amend[ed] the Borough Code to prohibit anyone from serving more than 



two   consecutive   terms   on   .   .   .   the   Borough   Assembly."  The   parties'   motions   for 



summary       judgment     considered    whether    the  initiatives'  provisions    for  term   limits 



unconstitutionally burdened voters' rights to vote for the candidates of their choice and 



        12      Tobeluk, 589 P.2d at 877 (citing City of Valdez v. Valdez Dev. Co., 523 P.2d 



177, 184 (Alaska 1974)); see also Fernandes , 56 P.3d at 3-4, 7-8 (upholding superior 

court's decision not to designate a prevailing party or award monetary damages to either 

party). 



                                                  -8-                                              6658 


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

candidates' rights to run for and hold public office and to equal protection.  Because the 



superior court had already concluded that Proposition 3 was invalid, it considered this 



argument   as   applied   to   Proposition   2   only.    The   superior   court   identified   the   rights 



affected by term limits for assembly members as fundamental, but determined that the 



State's interests in "encourag[ing] new qualified candidates and avoid[ing] entrenched 



incumbency"        were    compelling.       The   court   concluded     that   Proposition     2  did  not 



completely bar individuals' further candidacy or significantly limit ballot access and was 



therefore sufficiently narrowly tailored and did not "unconstitutionally infringe upon the 



rights of voters or candidates running for office." 



                 The   third   ruling   concerned   the   related   question   whether   Proposition   2 



applied   to   the   October   2007     election.    In   its   complaint   and   motion    for   summary 



judgment,      ACT     had   requested     a  declaration     that  both   initiatives   applied    to  the 



October 2007 election and that the seats held by the five incumbents were vacant.  In 



support, ACT suggested that Borough voters "knew or should have known" that votes 



for the initiatives would affect the five incumbents' races.   The Borough responded that 



application of the initiatives to the October 2007 election would "further compound[]" 



the burden on voters' and candidates' rights and that such application would require an 



especially close relationship between the initiative and the governmental interest to be 



achieved.  In its order, the superior court concluded that application of Proposition 2 to 



the October 2007 election would be unconstitutional and ultimately severed the year 



"2007" from Proposition 2. 



                 We conclude that these three issues can all be fairly considered main issues 



in this case.    ACT now argues that the sole main issue was "the constitutional right to 



impose term limits on the Kenai Peninsula Borough Assembly."                     But it is more proper 



to   characterize   this   issue   as   a   dispute   regarding  the   legality   of   both   initiatives   - 



concerning school board and assembly members - because ACT's initial complaint 



                                                    -9-                                              6658
 


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

sought a declaration that both initiatives were valid and applicable to the October 2007 



election.   Indeed, ACT filed its complaint after the incumbent school board members 



were    seated    but   before  the   incumbent   assembly       members     were    seated.   As    ACT 



explained,   it   was   concerned   that   the   school   board   had   already   seated   its   reelected 



members   and   that   the   assembly   "may   seat"   its   reelected   members.      The   timing   and 



language   of   ACT's   complaint   indicate   the   legality   of   term   limits   for   school   board 

members was as significant an issue as term limits for assembly members.13 



                The applicability of these initiatives to the October 2007 election was also 



an important component of this case.  As the superior court acknowledged, the Borough 



faced a difficult choice in deciding whether or not to seat the reelected incumbents. 



ACT's      complaint     specifically   requested     that   the  seats  filled  by  the  five  reelected 



incumbents be declared vacant.   The applicability of the initiatives to the October 2007 



election was therefore a main issue in this case. 

                All three issues were decided on distinct legal grounds.14                The superior 



court determined the validity of Proposition 3 based upon its interpretation of the Alaska 



Statutes.  It determined the validity of Proposition 2, both generally and as applied to the 



October 2007 election, based upon different applications of this court's constitutional 



balancing test.     Because ACT succeeded on the question whether Proposition 2 was 



valid, and the Borough succeeded on the questions whether Proposition 2 applied to the 



October   2007   election   and   whether   Proposition   3   was   valid,   we   conclude   that   the 



        13      See     Taylor    v.  Moutrie-Pelham ,       246   P.3d    927,   929    (Alaska    2011) 



(concluding that a party's raising of an issue in his complaint could reasonably lead 

superior court to conclude that issue was "a 'main issue' in [the] case and not just a 

peripheral one"). 



        14       Cf. Tobeluk, 589 P.2d at 878 (upholding superior court's decision not to 



name a prevailing party where it "is unclear whether either party won on any of the legal 

issues"). 



                                                   -10-                                             6658
 


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

superior court's decision that neither party was the prevailing party is reasonable and 



therefore not an abuse of discretion. 



                ACT also argues that the right of local citizens to legislate by initiative 



originates in the Alaska Constitution and, therefore, that ACT is entitled to attorney's 

fees and costs as a prevailing litigant asserting a constitutional right.15           As we reaffirm 



in a separate appeal involving the same parties, the local initiative power is statutory and 

not constitutional in origin.16     Thus, ACT did not assert a constitutional right that would 



entitle it to attorney's fees under AS 09.60.010(c). 



V.      CONCLUSION 



                For the foregoing reasons, we AFFIRM the superior court's decision not 



to name a prevailing party. 



        15      AS 09.60.010(c) provides, in relevant part: 



                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 . . . full reasonable attorney fees and costs 

                to a claimant, who . . . has prevailed in asserting the right; 



                (2)     may not order a claimant [who has not prevailed] to 

                pay the attorney fees of the opposing party . . . ." 



        16      Alliance of Concerned Taxpayers v. Kenai Peninsula Borough (ACT II & 



III), ___ P.3d ___, Op. No. 6659 at 22 (Alaska, Apr. 6, 2012). 



                                                  -11-                                              6658 

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


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

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