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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Lake & Peninsula Borough Assembly v. Oberlatz (7/11/2014) sp-6923

Lake & Peninsula Borough Assembly v. Oberlatz (7/11/2014) sp-6923

        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  



LAKE & PENINSULA BOROUGH                            )  

ASSEMBLY,                                           )    Supreme Court Nos. S-14945/15055  

                                                    )    (Consolidated)  

                        Appellant,                  )  

                                                    )    Superior Court Nos. 3DI-11-00023 CI  

        v.                                          )    and 3AN-11-12385 CI (Consolidated)  

                                                    )  

DANIEL W. OBERLATZ, RAYMOND                         )    O P I N I O N  

"SONNY" PETERSEN, JOHN                              )  

HOLMAN, JOHN C. GILLAM, and                         )   No. 6923 - July 11, 2014  

ROBERT B. GILLAM,                                   )  

                                                    )  

                        Appellees.                  )  

DANIEL W. OBERLATZ, RAYMOND                         )  

"SONNY" PETERSEN, JOHN                              )  

HOLMAN, JOHN C. GILLAM, and                         )  

ROBERT B. GILLAM,                                   )  

                                                    )  

                        Appellants,                 )  

                                                    )  

        v.                                          )  

                                                    )  

LAKE & PENINSULA BOROUGH                            )  

ASSEMBLY, and, in their individual and  )  

official capacities, Borough Mayor GLEN )  

ALSWORTH, SR., Borough Assembly                     )  

Members LORENE "SUE" ANELON,                        )  

LYNN CARLSON, MYRA OLSEN, and  )  

RANDY ALVAREZ, and Borough Clerk  )  

KATE CONLEY,                                        )  

                                                    )  

                        Appellees.                  )  


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

                                                                     

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

                   Judicial District, Dillingham, John Suddock, Judge.  



                   Appearances:      Gary   A.   Zipkin,   Guess   &   Rudd   P.C.,  

                   Anchorage,  for  Appellant/Appellee  Lake  and  Peninsula  

                   Borough and Appellees Alsworth, Anelon, Carlson, Olsen,  

                   Alvarez,  and  Conley.    Timothy  A.  McKeever  and  Scott  

                   Kendall, Holmes Weddle & Barcott, P.C., Anchorage, for  

                   Appellees/Appellants Oberlatz, Petersen, Holman, J. Gillam,  

                   and R. Gillam.  



                   Before:  Winfree, Stowers, and Bolger, Justices.  [Fabe, Chief  

                                                                           

                   Justice, and Maassen, Justice, not participating.]  



                   WINFREE, Justice.  



I.       INTRODUCTION  



                   Five voters each maintain a home in a borough and a home outside that  

                                                                                               



borough.  Two of the voters voted in the borough's 2010 election.  All five voters voted  

                          



in  the  borough's  2011  election.    Although  each  voter  was  registered  to  vote  in  the  

                                   



borough, the borough's canvassing committee rejected the voters' ballots in each election  



on the ground that the voters were not borough residents.  The voters appealed to the  

                      



superior court and asserted direct claims against the borough and a number of borough  

                                                                      



officials in their official and individual capacities.  The court ruled that the voters were  

                                                                                                      



borough residents and legally qualified to vote in the 2010 and 2011 borough elections,  

                                                                                    



and  that  the  voters  shall  remain  eligible  to  vote  in  future  borough  elections  absent  



substantial  changes  in  circumstances.    The  court  denied  the  voters  full  reasonable  



attorney fees against the borough under AS 09.60.010(c), concluding that they did not  

                                                                                                          



bring constitutional claims, but awarded them partial attorney fees under Alaska Civil  



Rule 82.  The court also awarded partial attorney fees under Rule 82 to the individual  



defendants against whom claims had been previously dismissed on immunity grounds.  

                                                      



                                                           -2-                                                     6923
  


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

                                                                                             

                    The borough appeals the merits of the residency determinations and the  



                                                           

voters appeal the attorney fees awards.  We affirm the superior court's decisions that the  



                                                                                    

voters  were  borough  residents  and  eligible  to  vote  in  the  2010  and  2011  borough  



                     

elections, but vacate the order that the voters are automatically eligible to vote in future  



elections.  We reverse the superior court's determination that the voters did not bring  



constitutional claims covered by AS 09.60.010(c), and remand for new attorney fees  



determinations.  



II.       FACTS AND PROCEEDINGS  



          A.        The Voting  



                    The  Lake  and  Peninsula  Borough  is  a  home  rule  borough  located  in  



                                                                                         

southwest Alaska.  Borough elections are conducted by mail, with ballots mailed to those  



                          

voters registered with the State of Alaska to vote in the Borough.  The Borough Clerk  



                                                                                                   

reviews returned ballots for compliance with election requirements. The Clerk separates  



                                                                                                             

(i.e., challenges) ballots mailed to and returned from addresses outside the Borough for  



individual review by the Borough's Canvassing Committee (Committee).  



                                                                                                 

                    In the 2010 Borough election, the Clerk challenged the ballots of Robert  



Gillam and Daniel Oberlatz because they were mailed to and returned from addresses  



                                                                                                       

outside the Borough.  Based on public records listing Oberlatz's and Robert Gillam's  



                                                       

residential addresses in Anchorage, the Committee unanimously voted to affirm the  



                                                                                               

challenges on the ground that Oberlatz and Robert Gillam were not Borough residents  



and therefore not eligible to vote in the election.  Oberlatz appealed the Committee's  

decision to the Borough Assembly (Assembly), which denied the appeal.1  



          1         The Assembly revised the Borough's elections code after the 2010 election.  



Notably,  the  new  law  added  factors  for  the  Committee  to  consider  in  determining  

residency and established a process for appealing the Committee's residency decisions  

                                                           

                                                                                                          (continued...)  



                                                             -3-                                                          6923  


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

                                      

                   In the 2011 Borough election, the Clerk challenged the ballots of Robert  



                                                     

Gillam, John Gillam, John Holman, and Raymond "Sonny" Petersen because they were  



                      

mailed to and returned from addresses outside the Borough.  The Committee sua sponte  



                  

challenged  Oberlatz's  ballot  based  on  its  2010  determination  of  Oberlatz's  non- 



                          

residency.  After reviewing the voters' addresses in public records and hearing testimony  



                                                                                                    

about their residencies, the Committee sustained the challenges to all five voters' ballots.  



                                                                                                          

The voters appealed to the Assembly.  Based on information from the voters' sworn  



                                                                    

affidavits, their attorney's testimony, and the Committee, the Assembly unanimously  



denied each appeal.  



          B.        The Voters' Individual Backgrounds  



                    1.       Robert Gillam  



                   Robert Gillam built his first home in the Borough in 1984.  He and his  



                                                                          

family currently own and spend considerable time in a family home in the Borough.  He  



                                                                                     

also lives in a house in Anchorage, where his business has an office, for over six months  



                                                                                                                   

per year.  He registered to vote in the Borough in February 2010.  Before that time, he  



was registered to vote in Anchorage and considered himself an Anchorage resident.  



                   2.        John Gillam  



                   John Gillam lived in his family's Anchorage home as a child and attended  



                     

school there.  He spent considerable time at his family's home in the Borough where he  



                                                                                                  

still has his own room and personal effects.  He registered to vote in Anchorage when  



                                                                                        

he turned 18 and voted there regularly until he changed his registration to the Borough  



in 2011.  He went to college outside Alaska, began graduate school in Dublin, Ireland  



in 2010, and accepted short-term employment in Zug, Switzerland, where he lives.  He  



          1         (...continued)  



                                                                          

to the Assembly and then to the superior court.   Lake and Peninsula Borough Code  

(L&PBC) 04.15.020, .030 (2014).  



                                                             -4-                                                          6923  


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

                                                                   

spent about 15 to 16 days in the Borough in both 2010 and 2011, but did not visit the  



Borough in 2012.  



                    3.       John Holman  



                                                                                                          

                    John Holman lived year-round in the Borough until he was seven years old,  



                        

after which he spent summers at his father's lodge in the Borough.  He purchased his  



                                                    

father's lodge in 2007 and lives in a home at the lodge from May through October.  He  



                                                                        

returns to his house outside the Borough during the winter months.  He was registered  



                                                                                          

to vote in the Palmer-Wasilla area until 2011, but changed his registration to the Borough  



                                                                             

in 2011 because he considers the Borough to be his home and because he wanted to be  



eligible to vote on the Save Our Salmon Initiative on the municipal ballot.  



                    4.       Daniel Oberlatz  



                                

                    Daniel Oberlatz moved to the Borough in May 1995 and established a  



business there.  Around 2005 he purchased a house in Palmer for his wife and children  



to live in.  At that time he owned two houses in the Borough:  his personal residence and  



                             

his business base.  He sold the personal residence in 2008, around which time his wife  



                     

and children moved to Anchorage from Palmer.  He uses the business base, which is  



                                                                      

owned by his company, as his home when he is in the Borough.  He spends 30 to 90 days  



                                                                                                               

per  year  in  the  Borough  for  work  and  recreation,  and  the  remainder  of  the  year  in  



Anchorage.  He and his wife recently purchased land in the Borough on which they plan  



                                                                                     

to build a larger family home. He registered to vote in the Borough in 1995 and does not  



appear to have registered or voted elsewhere since that time.  



                    5.        Sonny Petersen  



                    Sonny Petersen spent his childhood summers in the Borough at three lodges  



                                                                        

his father owned.  He purchased the lodges in  1982, and they are now owned by a  



                                                                                              

business he solely owns.  He maintains a separate home at one of the lodges, where he  



                                                                                                           

resides from May through October.  He spends the winter months with his family at a  



                                                             -5-                                                        6923
  


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

home he owns in Anchorage.  He was registered to vote in Anchorage until he changed  



                                                                   

his registration to the Borough around 1998.  He does not remember voting in Borough  



elections prior to 2008; his residency was not challenged until 2011.  



          C.        The Superior Court Proceedings  



                                   

                    In March 2011 Oberlatz and Robert Gillam filed a superior court action  



challenging  the  rejection  of  their  2010  votes  (2010  Voter  Litigation);  they  asserted  



claims against the Assembly and against Mayor Glen Alsworth, Assembly Members  



Lorene "Sue" Anelon, Myra Olsen, and Randy Alvarez, and Clerk Kate Conley, in their  



                                                                                  

individual and official capacities.  Oberlatz and Robert Gillam alleged that the rejection  



                                                                                                           2 

                                                                                                               Alaska  and  

of  their  votes  violated  article  V,  section  1  of  the  Alaska  Constitution, 



                                                                                                             

Borough election laws, and various Borough and common law conflict of interest laws.  



They sought injunctive and declarative relief reinstating them as qualified registered  



voters in the Borough, enjoining the individual defendants from violating conflict of  



                                                                                        

interest laws, and enjoining the defendants from retaliating against individuals opposed  



to   a   specific   mining   project   in   the   Borough.      They   also   sought   relief   under  



                             

42 U.S.C.  1983 for declarations of their federal free speech, assembly, and voting  



rights, and requested unspecified punitive damages.  



                             

                    After the Borough amended its election laws in May 2011 to enumerate  



various considerations available to the Committee when determining residency, Oberlatz  



                                                                                                             

and Robert Gillam amended their complaint in the 2010 Voter Litigation to assert that  



                                                                                                            

the new provision violated the Alaska Constitution, the Alaska elections code, and the  



          2  

                                                                     

                    Article V, section 1 of the Alaska Constitution provides:  "Every citizen of  

                                                                                       

the United States who is at least eighteen years of age, who meets registration residency  

                                                                                                          

requirements which may be prescribed by law, and who is qualified to vote under this  

article, may vote in any state or local election."  



                                                             -6-                                                           6923  


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

                                         3  

federal  Voting  Rights  Act.     They  asked  the  court  to  declare  the  Borough's  new  



residency provision unconstitutional.  



                   In November 2011 Oberlatz, Petersen, Holman, Robert Gillam, and John  



Gillam filed another superior court action against the Assembly, and against Mayor  



Alsworth  and  Assembly  Member  Anelon  in  their  individual  and  official  capacities,  



                                                                                                               

challenging their 2011 ballot rejections (2011 Voter Litigation).  The voters alleged the  



                                                                                

same violations and asked for the same relief as in the 2010 voter litigation, but did not  



include a federal claim for relief under 42 U.S.C.  1983.  



                                                                                            

                   In December 2011 the superior court in the 2010 Voter Litigation granted  



                                        

summary judgment to the individual defendants on legislative immunity grounds and  



                     

declared that L&PBC 04.15.020 - the Borough's new residency provision - does not  



                                                                                                      

conflict with state law.  The court also dismissed the  1983 claim against all of the  



defendants, finding no violation of a clearly established federal statutory or constitutional  



                                                                                          

right.  The Borough then moved for summary judgment on the remaining claims, arguing  



                                     

that Oberlatz and Robert Gillam failed to timely appeal the Assembly's decision and that  



Robert Gillam failed to exhaust his administrative remedies.  Oberlatz and Robert Gillam  



                                                                                          

opposed, arguing that the Borough's notification process and the common membership  



of the Committee and Assembly violated their due process rights.  In April 2012 the  



court      denied       the     Borough's         motion        for    summary          judgment         and      declared  



                                                                             

L&PBC 04.40.020 unconstitutional as a violation of due process because the ordinance  



                                                                                                

established common membership on the decision-making body - the Committee - and  



the  appeals  body  -  the  Assembly.    Because  the  Borough's  appeals  process  was  



unconstitutional, the court granted Oberlatz and Robert Gillam's request for a trial de  



          3        42 U.S.C.  1973c (2006).  



                                                             -7-                                                          6923  


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

novo on the issue of their voting residency.4  



                   Meanwhile,  in  February  2012  the  superior  court  in  the  2011  Voter  



                                              

Litigation dismissed the claims against the individual defendants on "absolute immunity  



                                                                         

or qualified immunity" grounds.  The 2010 Voter Litigation and 2011 Voter Litigation  



then were consolidated in May 2012.  



                                             

                   Following a trial de novo on the residency issue, in which the superior court  



                                                                                                 

heard      testimony        from     all    five    voters,     the     court     issued      a   decision       holding:  



                                                    

(1) L&PBC 04.40.020 (Committee composition) is unconstitutional; (2) the Borough's  



procedures   for   appealing   the   Committee's   decisions   in   2010   and   2011   were  



                                                              

unconstitutional; (3) the due process flaw in L&PBC 04.40.020 had entitled the voters  



to a trial de novo on the residency issue; (4) Oberlatz and Robert Gillam were registered  



voters in and legal residents of the Borough, and were legally qualified to vote in the  



                                                                          

2010 election; (5) all five voters were registered voters in and legal residents of the  



Borough, and were legally qualified to vote in the 2011 election; (6) the voters would  



                                           

remain eligible to vote in the Borough absent substantial changes in circumstances; and  



                                                                                 

(7) L&PBC 04.15.020 (residency considerations) is not invalid.  The superior court later  



                                                                                 

issued a revised decision explaining that the voters were Borough residents under Alaska  



law and legally qualified to vote in Borough elections because each voter had a fixed  



place of habitation and genuinely intended to remain in the Borough as home.  



          D.       Attorney Fees Proceedings  



                                                                                    

                   The individual defendants in the 2011 Voter Litigation moved for attorney  



          4        See Alaska R. App. P. 609(b)(1) ("In an appeal from an administrative  



agency, the superior court may in its discretion grant a trial de novo in whole or in  

part.").  



                                                             -8-                                                         6923  


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

                                                            5  

fees  under  Alaska  Civil  Rule  82(b)(2)   shortly  after  the  claims  against  them  were  



                        

dismissed         on     immunity          grounds.           The      voters      opposed         on     the     basis     that  



                                                                                                  6  

AS 09.60.010(c)(2) protected them from attorney fees liability.   The superior court  



granted the individual defendants' motion, awarding $468 in fees.  



                                                                   

                    Following the superior court's final judgment in the consolidated cases, the  



          5         Alaska R. Civ. P. 82(b)(2) provides in relevant part:  



                    In cases in which  the prevailing party recovers no money  

                                                 

                    judgment, the court shall award the prevailing party in a case  

                                                                                                   

                    which  goes  to  trial  30  percent  of  the  prevailing  party's  

                    reasonable  actual  attorney's  fees  which  were  necessarily  

                    incurred,  and  shall  award  the  prevailing  party  in  a  case  

                    resolved without trial 20 percent of its actual attorney's fees  

                                                                                         

                    which were necessarily incurred.  



          6         AS 09.60.010(c) provides:  



                             

                    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 . . . 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 . . . 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.  



                                                               -9-                                                         6923
  


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

                                                                                                                                                  7  

                                                                                                               

voters moved for an attorney fees award of $155,319 under AS 09.60.010(c)(1)                                                                         or,  



alternatively, an award of no less than $46,595  under  Rule 82(b)(2).  The Borough  



                                                                                                  

opposed  the  motion  and,  along  with  the  individual  defendants  in  the  2010  Voter  



                                                                                                              8  

                                                                                                                 The voters opposed the  

Litigation, cross-moved for attorney fees under Rule 82(b)(2). 



cross-motion on AS 09.60.010(c)(2) grounds.  



                        The superior court rejected the voters' contentions that AS 09.60.010(c)  



                                                                                                                              

applies in this case.  The court awarded the individual defendants in the 2010 Voter  



Litigation  attorney  fees  of  $8,691  under  Rule  82(b)(2).    The  court  then,  also  under  



                                                                                                                                      

Rule  82(b)(2),  awarded  the  voters  30%  of  their  attorney  fees  incurred  against  the  



                                                    

Borough after the action was converted from an administrative appeal to a trial de novo.  



                                                                  

The court reasoned that the case did not "assume[] the character of a civil action" until  



                                     

its conversion.  The court awarded no fees for the administrative appeal portion of the  



proceedings.  



                        The Borough appealed the superior court's residency determinations.  The  



                                                                                                       

voters appealed the superior court's attorney fees orders.  We consolidated the appeals.  



III.        STANDARD OF REVIEW  



                                                                                                                            

                        "As a general rule, we approach issues independently of the superior court  



                                                                                                    9  

                                                                                                        But when the superior court  

when that court acts as an intermediate court of appeal." 



            7           The   voters   argued  they  were   entitled  to  full   reasonable   fees  under  



AS 09.60.010(c)(1) because the "cases were brought to establish, protect and enforce   

[the] fundamental constitutional right" to vote.  



            8  

                                                                                 

                        The Borough argued it was the prevailing party because the court did not  

                                            

expressly conclude that rejecting the voters' ballots violated any laws, as alleged in the  

complaints.  



            9  

                                      

                        City of Nome v. Catholic Bishop of N. Alaska, 707 P.2d 870, 875 (Alaska  

                                                                                                                    

 1985) (citing Burgess Constr. Co. v. Smallwood , 698 P.2d 1206 (Alaska 1985); Jager  

                                                                                                                                  (continued...)  



                                                                         -10-                                                                    6923
  


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

                                                                                                        

conducts a trial de novo under Alaska Appellate Rule 609, we review only the superior  



                                                                                        10  

court's findings and conclusions, not those of the agency.     We review the superior  



                                                                                         11 

                                                                                             "We will find clear error  

court's factual findings under the clearly erroneous standard. 



only if, after a thorough review of the record, we come to a definite and firm conviction  



                                              12  

                                                                                                      

that a mistake has been made."                    "Legal questions are reviewed de novo, and we will  



                                                                                                                              13  

                                          

adopt the rule of law that is most persuasive in light of precedent, reason, and policy." 



                    We review the superior court's decision to grant or deny injunctive relief  



                                  14  

                                                            

for abuse of discretion.              "[W]e review de novo whether the trial court applied the law  

correctly in awarding attorney's fees."15  



          9         (...continued)  



v. State, 537 P.2d 1100, 1106 (Alaska 1975)).  



          10        Nash v. Matanuska-Susitna Borough , 239 P.3d 692, 698 (Alaska 2010)  



(citing City of Nome, 707 P.2d at 875).  



          11        Id. (citing City of Nome, 707 P.2d at 876).  



          12        Soules v. Ramstack, 95 P.3d   933, 936 (Alaska 2004) (citing Rausch v.  



Devine , 80 P.3d 733, 737 (Alaska 2003)).  



          13        Id. at 936-37 (citing Carr-Gottstein Props., Ltd. P'ship v. Benedict, 72 P.3d  

                                                                                    

308, 310 (Alaska 2003)).  



          14        Jacob v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. ,  

                                                                                         

 177 P.3d 1181, 1184 (Alaska 2008) (citing Betz v. Chena Hot Springs Grp. , 657 P.2d  

                                                                                              

831, 837 (Alaska 1982)).  "Under the abuse of discretion standard, 'an injunction will  

                                         

not be disturbed unless contrary to some rule of equity, or the result of improvident  

                                                                                       

exercise of judicial discretion.' " Alsworth v. Seybert , 323 P.3d 47, 54 n.11 (Alaska  

                                                    

2014) (quoting State v. Kluti Kaah Native Vill. of Copper Ctr., 831 P.2d 1270, 1272 n.4  

                                                                                                    

(Alaska 1992)) (internal quotation marks omitted).  



          15  

                                                             

                    Marron v. Stromstad , 123 P.3d 992, 998 (Alaska 2005) (citing Glamann  

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



                                                             -11-                                                        6923
  


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

IV.	     DISCUSSION  



                                                                                                 

         A.	       The Superior Court Did Not Err In Determining  That  The Voters  

                   Were Borough Residents For The 2010 And 2011 Elections.  



                                                                                                     

                   The Alaska Constitution, Alaska Statutes, and Borough Code require a  



                                                                                               

person to have been a "resident" of the voting district in which the person seeks to vote  



                                                                                                          16  

for at least 30 days prior to the election to be eligible to vote in that election.                           With one  



exception, discussed below, the Borough does not challenge  the legal standards the  



                                                                17  

superior  court  used  to  determine  residency;                    it  challenges  only  the  court's  factual  



determinations that each voter intended to remain in the Borough as a permanent home.  



                                                   

We therefore express no opinion on the propriety of the legal standards the superior court  



used and review only the superior court's factual findings for clear error.  



                   The Borough argues that the superior court's determinations that each voter  



intended to maintain a home in the Borough were erroneous because (1) the court based  



its factual findings of residency intent on the voters' expressed intent without considering  



          16       Alaska       Const.      art.    V,        1;    AS      15.05.010;        AS      29.26.050(a);  



L&PBC 04.15.010.  The Borough does not dispute that the voters meet the laws' other   

requirements.  



          17       The  superior  court  found  the  rules  for  determining  voter  residency  in  



AS 15.02.020.  The court explained that as a threshold matter, the voter must have a  

fixed place of habitation where the voter wishes to vote.  But "[t]he fundamental issue  

                                                                                        

is  what  the  voter's  intent  is"  regarding  the  place  to  which  the  voter  plans  to  return  

                                                                         

whenever absent.  According to the superior court, a presumption of intent is established  

under AS 15.05.020(8), which provides, "The address of a voter as it appears on the  

                                    

official  voter  registration  record  is  presumptive  evidence  of  the  person's  voting  

residence."  The court stated that the party challenging residence bears the burden of  

overcoming that presumption; the challenger must prove the voter does not intend to  

remain in the place the voter wishes to vote. The court also addressed situations in which  

                                                                            

a person has more than one house:  "If the voter has sufficient indicia of habitation in  

more than one place, it is not the role of the courts to force the voter to vote in a location  

                                          

which is not the location the voter prefers."  



                                                          -12-	                                                    6923
  


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

                                                                      

objective  evidence,  and  (2)  the  court  failed  to  apply  L&PBC  04.15.020  residency  



standards.  



                    1.	       Subjective and objective evidence support the superior court's  

                              findings that the voters intended to remain in the Borough.  



                                                           

                    "[T]he burden of proving a vote should not be counted is on the challenger  



                    18  

                                                                    

to that vote."          The Borough therefore bore the burden of establishing that the voters  



                                                                                                                     

were not Borough residents when they voted.  The superior court concluded not only that  



                                                                                 

the Borough failed to meet that burden, but also that the voters presented substantial  



                                                                                                          

evidence they intended to reside indefinitely in the Borough.  A voter's residency intent  



is a question of fact determined by the superior court after sifting and weighing evidence,  

and we review that determination for clear error.19  



                    The Borough argues that the superior court's intent determinations were  



clearly erroneous because the court based its findings solely on the voters' individual  



                                                                               20  

statements and failed to consider objective evidence.                              But the court expressly stated:  



"Absent any indicia  of fraud or unreasonableness or implausibility, the court should  



accept the statements of the voter as to their intended residence if supported by sufficient  



          18        Edgmon v. State, Office of Lieutenant Governor, Div. of Elections , 152 P.3d  



1154, 1159 (Alaska 2007) (citing Finkelstein v. Stout , 774 P.2d 786, 788 (Alaska 1989)).  

          



          19        See  Estate  of  Smith  v.  Spinelli,  216  P.3d  524,  528  (Alaska  2009)  



("  'Conclusions  about  the  parties'  intent  drawn  by  the  trial  court  after  sifting  and  

                                                                                               

weighing . . . evidence [extrinsic to a deed] are conclusions of fact' that we review for  

                                                                                                      

clear error." (alterations in original) (quoting Norken Corp. v. McGahan , 823 P.2d 622,  

626 (Alaska 1991))); Maksym v. Bd. of Election Comm'rs of Chi. , 950 N.E.2d 1051,  

                                                                                                      

1065-66 (Ill. 2011) (reviewing election board's findings of candidate's residency intent  

                                                                                        

for clear error).  



          20  

                                                                                 

                    Cf. Shumway v. Betty Black Living Trust, 321 P.3d 372, 376 (Alaska 2014)  

                                 

(noting "[c]onduct is weighed more heavily than declarations of intent" in determining  

residency (citing Kjarstad v. State , 703 P.2d 1167, 1171 (Alaska 1985))).  



                                                             -13-	                                                       6923
  


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

indicia  of residency."  (Emphasis added.)  The court weighed not only each voter's  



                                                                                                       

testimony as to intent, but substantial objective evidence as well.  The court considered  



                       

whether each voter's statement was supported by "sufficient indicia of residency," or  



                                                                                                                              21 

                                                                                                                                  The  

contradicted by objective "indicia of fraud or unreasonableness or implausibility." 



                                                                                                                    

Borough's argument that the court erred by basing its determination solely on the voters'  



subjective statements without considering objective evidence has no merit.  



                                                              

                     The Borough's argument could be construed as asserting that the superior  



                                                                               

court erred in weighing the evidence - that the court did not give enough weight to  



                                                                                

certain  objective  evidence  offered  to  contradict  the  voters'  stated  intents.    But  in  



determining  each  voter's  intent,  the  court  necessarily  evaluated  crediblity,  and  its  

credibility findings are due particular deference.22  



                                                                                              

                     The evidence the Borough cites in support of its argument that the voters  



did  not  intend  to  remain  in  the  Borough  does  not  leave  us  with  a  firm  and  definite  



           21        The superior court's approach to weighing the evidence comports with the   



approaches of courts in other jurisdictions.  See, e.g., Gordon v. Blackburn, 618 P.2d  

668, 672 (Colo. 1980) ("[A]ll the circumstances must be considered before reaching a  

decision regarding a person's intention to establish a . . . home."); Maksym , 950 N.E.2d  

                                  

at 1060-61 ("[W]hile intent is gathered primarily from the acts of a person, a voter is  

                                                                

competent  to  testify  as  to  his  intention,  though  such  testimony  is  not  necessarily  

conclusive." (citations and internal quotation marks omitted)); People v. O'Hara , 754  

N.E.2d  155,  159  (N.Y.  2001)  ("The  determination  of  an  individual's  residence  is  

dependent upon an individual's expressed intent and conduct.").  



           22  

                                      

                     "We give 'particular deference' to the trial court's factual findings when  

         

they  are  based  primarily  on  oral  testimony,  because  the  trial  court,  not  this  court,  

performs the function of judging the credibility of witnesses and weighing conflicting  

                                               

evidence."  Ebertz v. Ebertz , 113 P.3d 643, 646 (Alaska 2005) (quoting In re Adoption  

of A.F.M., 15 P.3d 258, 262 (Alaska 2001)); see also Gold Dust Mines, Inc. v. Little  

Squaw Gold Mining Co., 299 P.3d 148, 166 (Alaska 2012) ("Particular deference is due  

to the superior court's credibility determinations." (citing  Wasserman v. Bartholomew,  

                                     

38 P.3d 1162, 1167 (Alaska 2002))).  



                                                                 -14-                                                           6923
  


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

conviction that a mistake has been made.  The Borough generally argues the fact that  



                                                                                                                          

only work and vacation bring the voters to the Borough is evidence that they did not  



intend to reside in the Borough.  But business ownership in a particular location does not  



                                                                                     23  

                                                                                                                  

disqualify a person from claiming that location as home.                                 And the acts of working and  



                                                                                                                       

resting seem to constitute the entirety, or at least the majority, of "residing." It is unclear  



what other acts the Borough believes are necessary for residing in a location, but the  



                                                  

record contains ample objective evidence supporting the court's findings regarding the  

voters' intents.24  



                               a.        Robert Gillam  



                                                                                        

                    Robert Gillam testified that he plans to retire in the Borough and feels more  



at home and more involved in that community than in Anchorage.  Objective evidence  



                                                                         

supports this intent:  he has owned and spent a significant amount of time at his family  



house in the Borough since 1984 and shares close relationships with his neighbors.  The  



                                                                      

Borough points to evidence weighing against the finding that his intent was genuine:  he  



allegedly  spends  less  than  60  days  per  year  in  the  Borough,  he  claims  a  municipal  



                                                                                                              

residential real property exemption for his Anchorage residence, and  he  has not yet  



                                                                                  

retired to the Borough.  Although these facts could support a finding that he was an  



                                 

Anchorage resident, they do not necessarily establish that he was not a Borough resident  



          23        AS 15.05.020(2) states only that a place of business is not one's residence   



if the person actually resides elsewhere.  



          24        The superior court's factual findings discuss the voters' intents at the time  

                                                                                                                     

of trial.  But the proper inquiry under Alaska's voting laws is a voter's intent for the 30  

                                                                                                             

days before an election.  See Alaska Const. art. V,  1; AS 15.05.010; AS 29.26.050(a);  

                        

L&PBC 04.15.010.  The Borough does not assert that the superior court erred in this  

                                                                                      

regard, and the evidence appears to support findings that the voters intended to reside in  

                                                                                                                     

the Borough for the 30 days before the relevant elections.  Accordingly, we limit our  

consideration of this issue to simply noting it.  



                                                               -15-                                                         6923
  


----------------------- Page 16-----------------------

or did not intend the Borough to be his primary home.  Sufficient evidence in the record  



                                                       

supports the superior court's finding that Robert Gillam genuinely intended to reside in  



the Borough.  That finding is not clearly erroneous.  



                             b.        John Gillam  



                    The Borough not only challenges the superior court's finding that John  



Gillam intended to reside in the Borough, it also argues that he never established physical  



                                                                                                

presence in the Borough.  But John Gillam's room in his family's house in the Borough,  



                                                                                                          

where he spent a substantial part of his childhood and continues to keep personal items,  

supports the court's finding that he had a physical presence in the Borough.25  



                                                                                                  

                    John Gillam testified he considers his family's house in the Borough home  



                                                                                                               

and he intends to return there.  He maintains personal effects there and has returned for  



                                                                           

brief periods when not living in Europe.  There is no evidence that he intends to reside  



                                                                    

permanently in Switzerland or live anywhere other than the Borough upon return to the  



                                                      

United States.  His explanation for changing residency to the Borough is reasonable:  



                                   

knowing  he  would  be  living  outside  the  United  States  for  some  time,  he  wanted  to  



"formalize"  his  residency  where  he  felt  most  at  home  -  the  Borough.    Sufficient  



objective evidence supports John Gillam's stated intent.  The court did not clearly err in  



finding that he intended to remain in the Borough and was a Borough resident.  



                              c.       John Holman  



                                                                                                            

                    Holman testified that he considers his house in the Borough to be his "only  



          25        See Fischer v. Stout, 741 P.2d 217, 221 (Alaska 1987) ("[A fixed place of  



habitation] need not be a house or apartment.  It need not have mail service.  A residence  

                                                                                                  

need  only  be  some  specific  locale  within  the  district  at  which  habitation  can  be  

specifically fixed.  Thus, a hotel, shelter . . ., or even a park bench will be sufficient.");  

                                                               

Maksym , 950 N.E.2d at 1065-66 (holding fact that candidate left personal property at  

                                                   

prior residence supported his continuing residency at that place, notwithstanding his  

         

living in different city).  



                                                             -16-                                                       6923
  


----------------------- Page 17-----------------------

                                                                                     

home."  The fact that he changed his voter registration to the Borough in order to vote  



                                                               

on the Save Our Salmon initiative raises a question regarding his stated intent, but it is  



                                                                                                    

not conclusive.  The objective evidence supports his testimony as to his intent.  His ties  



                                                        

to the area go back to his youth and he is involved in the Borough's civic community.  



                                      

He has spent winters in different locations, but he returns to the same location in the  



                                                                      

Borough every summer.  The Borough points to his Department of Motor Vehicles and  



liquor license registrations at his Wasilla address, and his prior voter registrations in  



                                                                                                                          

Palmer and Wasilla as evidence that he does not intend to reside in the Borough. But the  



voter  registrations  speak  only  of  his  prior  intent.    And  he  testified  that  he  used  his  



                                                                                          

Wasilla address on his liquor license registration because it was a more convenient place  



                                                              

to receive mail.  The court's finding that Holman genuinely intended the Borough to be  



his home is supported by the record and is not clearly erroneous.  



                              d.        Daniel Oberlatz  



                    Oberlatz testified that he considers himself a Borough resident, that the  



                                                         

Borough is his "home," and that he would live in the Borough year-round if his wife  



were not working in Anchorage.  His intent is supported by objective evidence:  he  



                                                                                                                     

registered to vote in the Borough in 1995 and has not registered elsewhere since that  



time, and he recently purchased a parcel in the Borough to build a larger family home.  



                                                                                                                      

The Borough asserts he spends minimal time in the Borough (30 to 90 days per year) and  



                                                                                                      

is only there for work or recreation. But one may reside in the same place one works and  



                        

recreates.  The superior court's finding that Oberlatz genuinely intended to reside in the  



Borough is not clearly erroneous.  



                              e.        Sonny Petersen  



                                                                        

                    Petersen testified that he has more of an emotional and financial connection  



           

to the Borough than to Anchorage.  Petersen has spent significant time in the Borough  



                                                                                              

since he was a child, currently lives approximately six months a year in the Borough, and  



                                                              -17-                                                         6923
  


----------------------- Page 18-----------------------

                                                                                           

registered to vote in the Borough around 1998.  The Borough contends that his time in  



                                                      

the Borough is only for "temporary work" and that his Department of Motor Vehicles  



                                                  

registrations listing Anchorage as his address are stronger evidence of his true intent than  



his statements.  Again, one may reside in  the  same locale in which one works, and  



vehicle registration is not dispositive of residency - the listed address often is chosen  



for convenience in Alaska, where receiving mail in rural locations can be difficult.  The  



                                                 

superior court did not clearly err in finding Petersen intended to reside in the Borough,  



especially considering his history and longstanding voter registration in the Borough.  



                                                                                            

                   2.	       The superior court did not err by failing to apply the Borough's  

                             residency standards.  



                   The Borough argues that the superior court erred by failing to apply the  



                                                                                        26  

                                                                                                    

Borough's residency standards set out in L&PBC 04.15.020.                                   The Borough contends  



          26	      L&PBC 04.15.020, adopted after the 2010 Borough election, provides:  



                   A.        To  determine  whether  a  person  is  a  resident  of  the  

                   Borough,   the   Canvassing   Committee   may   consider   all  

                   evidence, including but not limited to:  



                             (1)      where  the  person  spends  most  of  his  or  her  

                             time;  



                             (2)      the  location  of  people  and  things  that  are  

                             typically identified with one's "home," such as family  

                                                          

                             members, pets, and vehicles;  



                             (3)       sincere statements or actions of the person as to  

                                                                                                     

                             where he or she intends to make a primary residence  

                                                                     

                             (where  he  or  she  manifests  an  intent  to  make  a  

                                                                                              

                             permanent home);  



                             (4)	     where the person receives his or her mail;  



                             (5)	     where the person and the person's spouse have  

                                                                            

                             registered  to  vote  and  how	 long  they  have  been  

                                                                          

                                                                                                          (continued...)  



                                                            -18-	                                                     6923
  


----------------------- Page 19-----------------------

                                27  

                                                                   

that AS 29.26.050(b)               gives municipalities the power to determine voters' residencies  



for    municipal         elections,       that     the    Borough         executed        that     power       by    enacting  



                                                                               

L&PBC 04.15.010 and .020, and that the superior court therefore erred by failing to  



                                                                     

apply the L&PBC 04.15.020 standards.  But even if we were to accept the Borough's  



                                                     

interpretation of AS 29.26.050(b), L&PBC 04.15.020 does not set standards for defining  



                                                                                                    

residency.  L&PBC 04.15.020 merely explains that the Committee may consider various  



                                                                                                                          

forms of evidence in determining whether a voter meets residency requirements. It does  



                                                                                                       

not state that the Committee must consider the enumerated forms of evidence, nor does  



                                                               

it  require  a  voter  to  provide  any  or  all  such  evidence  to  support  asserted  Borough  



                  

residency.  More importantly, it does not modify or affect the definitions of resident  



          26        (...continued)  



                              registered  to  vote  there  (and  whether  they  have  

                              actually voted);  



                              (6)       whether the person's daily life is connected to  

                                                            

                              that address, including mail, bills, and bank accounts.  

                                                                                         



                    B.        The      Canvassing          Committee           may      also     consider  

                    evidence that tends to show that the claim of residency is  

                    untrue,  contradictory  or  inconsistent  with  other  actions  or  

                    inactions of the person.  



          27        AS 29.26.050(b) provides:   



                    Voter registration by the municipality may not be required.  

                                                           

                    However,  in  order  to  vote  for  a  candidate  or  on  a  ballot  

                                                       

                    measure relating to a specific local election district or service  

                                                                         

                    area, a municipality may by ordinance require that a person  

                                                           

                    be registered to vote in state elections at least 30 days before  

                                                                                              

                    the municipal election at an address within the boundaries of  

                    that local election district or service area.  The municipality  

                    has  the  responsibility  to  determine  if  a  voter  meets  the  

                    requirements of the ordinance and this section.  



                                                              -19-                                                         6923
  


----------------------- Page 20-----------------------

under AS 15.05.010, AS 29.26.050, or L&PBC 04.15.010.  And the court in fact did  



                                                      

consider  most  of  the  factors  listed  in  L&PBC  04.15.020;  it  simply  did  not  cite  the  



provision  when  doing  so.    The  Borough  acknowledged  this  in  its  cross-motion  for  



                                                                                                

attorney  fees,  asserting  the  voters  "prevailed  on  their  appeal  of  the  issue  of  their  



residency under the Borough standards of residency." (Emphasis added.)  The court did  



not err by failing to apply L&PBC 04.15.020 in determining the voters' residencies.  



          B.	       It Was An Abuse Of Discretion To Predetermine That The Voters Are  

                    Eligible Voters In Future Borough Elections.  



                    Paragraph 7 of the superior court's final judgment stipulates:  



                                                 

                    Absent substantial change in circumstances pertaining to a  

                                                                                

                    specific individual, . . . Daniel Oberlatz, John Holman, John  

                    Clark  Gillam,  Robert  B.  Gillam  and  Raymond  "Sonny"  

                    Petersen are and shall remain eligible to vote[] in the Lake  

                    and Peninsula Borough and the borough shall provide them  

                    with ballots and tally and count the votes they may cast.  



                                        

This provision essentially directs the Borough to determine in future elections that the  



                                             

voters  are  eligible  to  vote  in  the  Borough  without  regard  to  state  or  Borough  voter  



                                                             

eligibility laws.  Although it may be true that each voter will not cease being a Borough  



resident  absent  a  substantial  change  in  circumstances,  "[t]he  municipality  has  the  



responsibility  to  determine  if  a  voter  meets"  the  statutory  requirements  to  vote  in  a  



                            28  

                                                                                           

municipal  election.            The Borough remains bound to apply Alaska's voter eligibility  



                                                                                               

laws correctly in future elections and there is no indication it will do otherwise following  



                                     

this decision. Enjoining the Borough from exercising its responsibility in the future was  



                                                                                                   29  

inappropriate  and  unnecessary,  and  we  thus  vacate  paragraph  7.                                   We  expect  the  



          28	       AS 29.26.050(b).  



          29        See Willkie v. Del. Cnty. Bd. of Elections, 865 N.Y.S.2d 739, 743 (N.Y.   



App.  2008)  (holding  injunction  requiring  elections  board  to   apply   proper  residency  

                                                                                                           (continued...)  



                                                            -20-	                                                          6923  


----------------------- Page 21-----------------------

                                                                                          

Borough will apply the voter eligibility laws properly and will be mindful that the voters  



qualified as Borough residents in 2010 and 2011 when evaluating their future voting  



eligibilities.  



          C.	      The  Attorney  Fees  Awards  Must  Be  Vacated  Because  The  Voters  

                   Brought Constitutional Claims Under AS 09.60.010(c).  



                   Alaska Statute 09.60.010(c) directs a court to award full reasonable attorney  



                                                                                        

fees and costs to a plaintiff who has prevailed in asserting a constitutional right, and  



                                                                                                         

prohibits a court from ordering a losing plaintiff to pay the attorney fees of an opponent  



                                                                           

devoted to claims concerning constitutional rights.  The superior court awarded partial  



attorney fees under Civil Rule 82 to the voters and the individual defendants.  The voters  



                                                                 

appeal the awards, arguing they should have been awarded full fees against the Borough  



under AS 09.60.010(c)(1) and excused from paying the individual defendants' fees under  



                                                                       

AS 09.60.010(c)(2).  We separately address the applications of AS 09.60.010(c) to the  

attorney fees claims involving the Borough and the individual defendants.30  



                   1.	       The voters brought constitutional claims against the Borough  

                                                                

                             and  may  be  entitled  to  full  reasonable  attorney  fees  under  

                             AS 09.60.010(c)(1).  



                   The  superior  court  concluded  that  this  case  does  not  "concern[]  'the  



                                                                                                      

establishment, protection, or enforcement' of a constitutional right."  It explained that  



          29       (...continued)  



standard  in  future  was  "unnecessary  and  inappropriate"  where  board  was  "already  

obligated  to  follow  the  law  and  there  [was]  nothing  in  the  record  to  suggest  that  it  

                                                                                                         

[would] not do so").  



          30       Myers v. Snow White Cleaners & Linen Supply, Inc. , 770 P.2d 750, 753  

                                                                      

(Alaska 1989) ("Each request for fees or costs to a prevailing  party  in a multiparty  

                                                                                                        

lawsuit       should       be    considered         objectively        on     its    own      merits.");       see     also  

                                                                      

AS 09.60.010(c)(2), (d)(1) (directing court to consider whether constitutional claimant  

status applies for each individual claim).  



                                                            -21-	                                                     6923
  


----------------------- Page 22-----------------------

because "the Constitution confers [voter registration residency requirements] to statute,  



                                                               

this cannot be said to be a constitutional case.  This lawsuit boils down to findings of fact  



and conclusions of statutory law."  And "[t]he basic right . . . to vote was never in  



question."  



                                                      

                   It was error to determine the applicability of AS 09.60.010(c) based on the  



                                   

 source of the rule of law controlling the case's outcome.  Alaska Statute 09.60.010(c)'s  



                                                          

application depends not on the source of the rule of law, but on the source of the right  



            31  

asserted.         It  applies  "[i]n  a  civil  action  or  appeal  concerning  the  establishment,  



protection ,  or  enforcement  of  a  right  under  the  United  States  Constitution  or  the  

                                                    32  Conversely, AS 09.60.010(c) does not apply  

                                                                                

Constitution of the State of Alaska."  



when the right finds its source in statute.  In Alliance of Concerned Taxpayers, Inc. v.  



Kenai  Peninsula  Borough ,  for  example,  we  reaffirmed  that  the  right  to  legislate  by  

municipal  initiative  derived  from  AS  29.26.100,  not  the  Alaska  Constitution.33                           We  



therefore held that the plaintiff asserting that right "did not raise issues concerning the  



                                                                         

establishment, protection, or enforcement of a right under the Alaska Constitution," so  



the  plaintiff  was  not  entitled  to  protection  from  an  attorney  fees  award  under  

AS 09.60.010(c)(2).34  



                   But  unlike  the  municipal  initiative  power  in  Alliance  of  Concerned  



 Taxpayers, the right to vote derives from the Alaska Constitution, not from any statute.  



          31       See Alliance of Concerned Taxpayers, Inc. v. Kenai Peninsula Borough ,  



273 P.3d 1128, 1139 (Alaska 2012) (looking to source of right asserted to determine  

whether case concerned constitutional right).  



          32       AS 09.60.010(c) (emphasis added).  



          33       273 P.3d at 1139 (citing  Carmony v. McKechnie, 217 P.3d 818, 823-24  



(Alaska 2009); Griswold v. City of Homer, 186 P.3d 558, 563 (Alaska 2008)).  



          34       Id.  



                                                         -22-                                                   6923
  


----------------------- Page 23-----------------------

Article V, section 1 of the Alaska Constitution grants the right to "vote in any state or  



                             

local election"  to  every citizen of the United States over the age of 18 "who meets  



                                                                                 

registration residency requirements . . . prescribed  by law."  Anyone meeting those  



                               

requirements has a constitutional right to vote.  Statutory voter registration requirements  

do not create that right, they only limit it; the Alaska Constitution creates the right.35  



                                                                    

                    The voters have constitutional rights to vote in municipal elections under  



article V, section 1 of the Alaska Constitution.  They sought to protect those rights by  



asserting  that  the  Borough's  application  of  residency  laws  deprived  them  of  their  



                                                 

opportunities to vote.  It does not matter that the deprivations also violated statutes  



designed to regulate the right to vote or that the statutes provide the rule of law for  



determining whether the constitutional right has been infringed.  The ultimate question  



is whether the voters sought to protect themselves from deprivation of their constitutional  



rights by the Borough's application of the election laws.  



                                                                                                          

                    The voters' actions clearly "concern the . . . protection . . . of a right under  



                                         

. . . the Constitution of the State of Alaska," so the voters satisfy the constitutional claim  



                                                                                                       

requirement of AS 09.60.010(c).  The voters prevailed against the Borough by having  



                                                                                                          

their voting rights restored.  We therefore reverse the superior court's determination that  



                                                                      

the voters did not bring constitutional claims and hold that the voters may be entitled to  



          35        See Park v. State, 528 P.2d 785, 786-87 (Alaska 1974) (looking to whether   



constitutional right to vote was violated through denial of alien's voter registration on  

statutory grounds).  



                    Defining a right's source is not always an easy matter.  Countless statutes  

                                                                                                          

have  been  enacted  to  execute  the  Alaska  Constitution's  provisions  and  to  protect  

constitutional rights.  It can be difficult to decipher whether a violation of such a statute  

                                                                                                             

deprived the person of a constitutional right or a statutory right.  But the right's source  

                                                                                                          

in this case is straightforward:  article V, section 1 of the Alaska Constitution clearly  

                                                                                                      

grants the right to vote in any municipal election for which one is qualified.  



                                                               -23-                                                         6923
  


----------------------- Page 24-----------------------

full reasonable attorney fees and costs against the Borough as constitutional claimants  



                                     36 

                                                                                    

under AS 09.60.010(c)(1).                If the voters are entitled to full reasonable attorney fees and  



               

costs, the award should include the fees and costs incurred for their constitutional claims  



        

over the entirety of the 2010 and 2011 Voter Litigation actions, not only those incurred  



                                                37  

                                                           

after conversion to a trial de novo.                We vacate the attorney fees award and remand for  

determination of a new award to the voters consistent with this opinion.38  



                   2.	      The voters may be partially immune from paying attorney fees  

                            to the individual defendants under AS 09.60.010(c)(2).  



                   When a suit involves a mix of constitutional and non-constitutional claims,  



AS 09.60.010(c)(2) only protects a claimant from paying its opponent's attorney fees  



"devoted to claims concerning constitutional rights."  The voters filed both constitutional  



                                                                                                                    

and non-constitutional claims against the individual defendants.  The parties urge us to  



         36        AS     09.60.010(d)(2)          bars     a   court     from     making        an    award      under  



AS 09.60.010(c)(1) if the claimant had "sufficient economic incentive to bring the suit,  

regardless of the constitutional claims involved."  It appears that the voters' primary  

purpose in bringing the actions against the Borough was to reinstate their resident voter  

statuses, not to obtain an economic benefit, but this issue is not before us.  The Borough  

                                                              

may raise the issue on remand.  



                   AS 09.60.010(e) also gives courts discretion to abate fee awards under  

AS 09.60.010(c)(1) if "the full imposition of the award would inflict a substantial and  

                                                                                                      

undue hardship . . . upon the taxpaying constituents of [a] public entity."  We decline the  

                           

voters' invitation to conclude from the record that the imposition of full fees will not  

                              

impose an undue hardship on the Borough or its taxpayers.  The Borough may raise the  

                                                                                     

hardship defense on remand.  



         37        See  AS  09.60.010(c)  (stating  provision  applies  "[i]n  a  civil  action  or  



appeal") (emphasis added).  



         38        We note that the voters are not entitled to an attorney fees award for work  



done solely on claims against the Borough that did not concern the voters' constitutional  

rights to vote.  See AS 09.60.010(c)(1).  



                                                          -24-	                                                    6923
  


----------------------- Page 25-----------------------

                                                                                     

consider the primary nature of the claims as a whole:  the Borough, on behalf of the  



                                                                                                   

individual defendants, asserts the claims were primarily personal in nature and based on  



                                                                                           

non-constitutional conflict of interest laws, while the voters contend the "main issue" in  



                           

the cases against the individual defendants involved protecting the voters' constitutional  



                                                           

rights to vote.  But AS 09.60.010(c)(2) applies to claims concerning constitutional rights.  



                  

The  court  cannot  simply  characterize  all  the  claims  as  primarily  constitutional  or  



                                               

primarily non-constitutional.  Determining whether the voters are immune from paying  



                      

attorney fees to the individual defendants requires consideration of the nature of each  



claim against those defendants.  



                                                                                           

                    For example, AS 09.60.010(c)(2) could apply to the voters' claims against  



       

the individual defendants to the extent those claims concern protection of their voting  



                                                                                                

rights,  but  not  to  claims  alleging  borough  code  or  common  law  conflict  of  interest  



                                                     

violations.  But we emphasize that Rule 82 attorney fees may be awarded only for work  



that     would        not     have       been      necessary         but      for    a    non-constitutional              claim;  



                                                                                                          

AS 09.60.010(c)(2) applies to work in which a constitutional claim is implicated in any  

       39   We therefore vacate the attorney fees awards to the individual defendants and  

way.        



remand for the superior court to base any Rule 82 awards to them only on those fees  

devoted solely to defending non-constitutional claims.40  



          39        Cf. Fox v. Vice, 131 S. Ct. 2205, 2215 (2011) (holding defendant may  



"receive only the portion of his fees [under 42 U.S.C.  1988] that he would not have  

                                                                                                            

paid but for the frivolous claim").  And we note that any attorney fees awarded under  

Rule 82 "cannot be based on fees incurred defending against the  1983 claim."  Brown  

                                                                                                                         

v. Ely, 14 P.3d 257, 264 (Alaska 2000) (citing Lyman v. State , 824 P.2d 703, 707 (Alaska  

                                                 

1992)).  



          40  

                                                                                                        

                    The Borough argues that AS 09.60.010(c)(2) does not apply to the claims  

                                    

against the individual defendants because the claims were frivolous and because the  

                                                                               

voters had a sufficient economic incentive to bring their constitutional claims.  Again,  

                                                                                                               (continued...)  



                                                              -25-                                                         6923
  


----------------------- Page 26-----------------------

V.        CONCLUSION  



                   We AFFIRM the superior court's decisions that Daniel Oberlatz and Robert  



                                                                                  

Gillam  were  Borough  residents  and  legally  qualified  to  vote  in  the  2010  Borough  



election  and  that  Daniel  Oberlatz,  John  Holman,  Robert  Gillam,  John  Gillam,  and  



                                                  

Raymond "Sonny" Petersen were Borough residents and legally qualified to vote in the  



                                          

2011 Borough election.  We VACATE paragraph 7 of the order predetermining that the  



                                                                                

voters are eligible to vote in future Borough elections.  And we VACATE the attorney  



fees awards and remand for reconsideration consistent with this opinion.  



          40       (...continued)  



                                

we     do    not    decide       whether       the    voters      actually      qualify     for    protection        under  

                                                                                                                

AS  09.60.010(c)(2),  leaving  it  to  the  superior  court  to  first  consider  any  issues  of  

frivolity or economic incentive.  



                                                            -26-                                                         6923  

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