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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. DeVilbiss v. Matanuska-Susitna Borough (8/28/2015) sp-7038

DeVilbiss v. Matanuska-Susitna Borough (8/28/2015) sp-7038

         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@akcourts.us.  



                   THE SUPREME COURT OF THE STATE OF ALASKA  



RAY DeVILBISS,                                        )  

                                                      )        Supreme Court No. S-15344  

                           Appellant,                 )  

                                                      )        Superior Court No. 3PA-12-01028 CI  

         v.                                           )  

                                                      )        O P I N I O N  

MATANUSKA-SUSITNA                                     )  

BOROUGH,                                              )        No. 7038 - August 28, 2015  

                                                      )  

                           Appellee.                  )  

                                                      )  



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

                              

                  Judicial District, Palmer, Eric Smith, Judge.  



                  Appearances:    Ray  DeVilbiss,  pro  se,  Palmer,  Appellant.  

                                                               

                  Blake   F.   Quackenbush,   Law   Office   of   Blake   Fulton  

                  Quackenbush, Anchorage, for Appellant at oral argument.  

                  Nicholas       Spiropoulos,       Borough        Attorney,      Palmer,      for  

                  Appellee.  



                  Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                                               

                  Bolger, Justices.  



                  FABE, Chief Justice.  



I.       INTRODUCTION  



                  A property owner whose property is within a road service area does not  



make use of the roads built and maintained with the road service taxes levied on all real  

                                      



property within the service area.  He contends that Alaska law requires that his property  

                                                               



be excluded from the service area and that the tax is invalid absent a special benefit to  


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

his property, as opposed to the general benefit to the service area.  The superior court  



rejected these claims and granted the borough that oversees the service area summary  



                                                          

judgment.  Because Alaska law neither requires boroughs and municipalities to exclude  



                                                                                         

properties that do not make use of roads financed by road service taxes nor ties the  



                                                                                              

validity of a tax to each taxpayer's receipt of a special benefit, we affirm the grant of  



summary judgment.  



II.       FACTS AND PROCEEDINGS  



                                                               

                    In 1981 a road service area (RSA) in Matanuska-Susitna Borough was  



expanded by annexing territory that had not previously been part of the  RSA.  Ray  



                                                                                                             

DeVilbiss is the owner of three pieces of property that joined the RSA  in the 1981  



                                                                                                      

annexation.  His farm abuts Clark-Wolverine Road, which currently is maintained by the  



                                                                                               

State, not the RSA.  He alleges that he makes no use of the roads that are maintained by  



the RSA.  



                                                                                                  

                    In 2011 DeVilbiss petitioned the Matanuska-Susitna Borough Assembly,  



                                                                                                               

requesting  that  they  remove  his  property  from  the  RSA.    The  assembly  denied  his  



                                                                          

petition.  DeVilbiss then filed a complaint against the Borough.  The Borough opposed  



                                                                                           

and moved to dismiss, a motion the superior court granted as to several claims it found  



                                                             

non-justiciable. The Borough moved for partial reconsideration, and on reconsideration  



the superior court dismissed another claim as non-justiciable.   



                                                                               

                    DeVilbiss then amended his complaint. His amended complaint contested  



the  validity  of  the  road  service  tax  on  a  variety  of  statutory,  common  law,  and  



constitutional grounds.   



                    The Borough moved for summary judgment on one question of statutory  



                                                                       

construction. DeVilbiss opposed the Borough's motion and moved "for judgment on the  



pleadings" in his favor.  The Borough opposed and cross-moved for summary judgment  



on the entire case, a motion DeVilbiss opposed.  



                                                             -2-                                                       7038
  


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

                    The  superior  court  granted  the  Borough's  cross-motion  for  summary  



                                          

judgment.  It characterized DeVilbiss's claims as "fall[ing] into two basic categories:  



(i) whether AS 29.35.450(c)(4) requires that the Borough remove his properties from  



RSA 19; and (ii) whether the RSA 19 tax is unlawful."  



                             

                    As to the first category of claims, the superior court rejected DeVilbiss's  



                                                                                              

argument that the statute required that his property be removed:  "The plain language of  



subsection  .450(c)(4)  does  not  create  any  mandate  for  agency  action.  Subsection  



                                                                                          

 .450(c)(4)  specifically  creates  an  exception  to  the  voting  requirement  outlined  in  



subsection .450(c); the subsection contains no language directing the Borough to take  



                                                           

any action."  The superior court further found that the legislative history supported the  



same reading.   



                    As  to  the  second  category  of  claims,  the  superior  court  identified  and  



rejected DeVilbiss's four challenges to the lawfulness of the RSA tax.  



                    First, DeVilbiss argued that because he did not receive a special benefit  



                                                                                

from the road services funded by RSA taxes, the taxes violated the equal protection and  



due  process  clauses  of  the  Alaska  Constitution.    The  superior  court  rejected  this  



                                                      

argument, concluding that "Alaska law appears to hold that a benefit is not required."  



                                                 

It found this rule to be consistent with United States Supreme Court precedent, which the  



                                                                    

superior court found asked "whether the tax is either palpably arbitrary or unreasonably  



                                                                                                                    

discriminatory, not whether some special benefit is conferred."  Because this tax was  



neither, the superior court concluded that it was constitutionally valid.   



                    Second, DeVilbiss argued that the ad valorem tax actually collected was  



                                             

invalid because the Borough was required to fund the RSA with special assessments  



                    

instead. The superior court concluded that article X, section 5 of the Alaska Constitution  



and  AS  29.45.010  left  the  choice  of  funding  mechanism  "to  the  discretion  of  the  



Borough."  



                                                             -3-                                                       7038
  


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

                     Third,  DeVilbiss  argued  that  several  statutory   provisions  specifically  



required that every person taxed in a service area enjoy a benefit from those taxes.                                           The  



superior court did not specifically address this argument in the portion of its order that   



explained its reasons for granting the Borough summary judgment.   



                                                                        

                     Finally,  DeVilbiss  argued  that  the  ballot  language  used  in  the  1981  



                                                                                                                 

annexation vote "created a binding contract," which "acted as a guarantee against future  



                                                                                                                         

taxes."  The superior court found this argument time-barred by the 20 years that had  



                                                                                                                 

passed since taxes were first collected in the RSA.  It further found that, on the merits,  



the ballot language was clearly an estimate and "did not provide any guarantees against  



future taxation."   



                                                       

                     Following  the  grant  of  summary  judgment,  the  Borough  moved  for  



                                                                                               

attorney's fees.  The parties briefed whether AS 09.60.010 shielded DeVilbiss from  



                                                                                                         

being required to pay fees associated with his constitutional claims.  The superior court  



                                                                                                                 

found that DeVilbiss was ineligible for the statutory protection because he had sufficient  



economic incentive to bring his claims.  It therefore awarded the Borough $2,295 in  



attorney's fees, 20 percent of the fees necessarily and reasonably incurred.   



                     DeVilbiss appeals both the grant of summary judgment and the grant of  



attorney's fees.  



III.      STANDARDS OF REVIEW  



                     "We  review  grants  of  summary  judgment  de  novo,  exercising  our  



independent judgment to determine whether the parties genuinely dispute any material  



                                                               

facts and, if not, whether the undisputed facts entitle the moving party to judgment as a  

matter of law."1  



          1         Price v. Kenai Peninsula Borough , 331 P.3d 356, 358-59 (Alaska 2014)  



(quoting Kodiak Island Borough v. Mahoney , 71 P.3d 896, 897 (Alaska 2003)).  



                                                                -4-                                                              7038  


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

                    "We apply our independent judgment to questions of law, adopting 'the rule  



           

of law that is most persuasive in light of precedent, reason, and policy.'  When a question  



of statutory interpretation is involved, we will independently evaluate the trial court's  



                       2  

                                                                                             

interpretation."     "We  interpret  Alaska  law  'according  to  reason,  practicality,  and  



                                                                                                         

common sense, taking into account the plain meaning and purpose of the law as well as  

the intent of the drafters.' "3  



                                                             

                    " 'A trial court's award of attorney's fees is generally reviewed for abuse  



                                                                                   

of  discretion.    An  abuse  of  discretion  exists  if  an  award  is  arbitrary,  capricious,  



manifestly  unreasonable,  or  the  result  of  an  improper  motive.'    The  trial  court's  

application of law in awarding attorney's fees is reviewed de novo."4  



IV.       DISCUSSION  



                    On  appeal,  DeVilbiss  makes  four  arguments:    (1)  that  the  existence  of  



              

material questions of fact made summary judgment inappropriate; (2) that state law  



requires  the  Borough  to  exclude  his  property  from  the  RSA;  (3)  that  various  



                             

constitutional and statutory restrictions invalidate the road service tax; and (4) that he is  

a  public  interest  litigant  and  thus  exempt  from  the  imposition  of  attorney's  fees.5  



          2         Young v. Embley, 143 P.3d 936, 939 (Alaska 2006) (quoting                                     Lawson v.  



Lawson , 108 P.3d 883, 885 (Alaska 2005)).  



          3         Id. (quoting Native Village of Elim v. State , 990 P.2d 1, 5 (Alaska 1999)).  



          4  

                                                      

                    Bachner Co. v. Weed , 315 P.3d 1184, 1189 (Alaska 2013) (quoting Krone  

v. State, Dep't of Health & Soc. Servs., 222 P.3d 250, 252 (Alaska 2009)).  



          5         Following  oral  argument,  DeVilbiss  filed  a  notice  of  supplemental  



authority.  See Alaska R. App. P. 212(c)(12).  Three of the four cases DeVilbiss cited  

relate  to  the  Alaska  Constitution's  guarantees  of  due  process  and  equal  protection.  

                                                                              

See  Malabed  v.  N.  Slope  Borough,  70  P.3d  416,  420-21  (Alaska  2003)  (equal  

                                 

protection); City of Homer v. State, Dep't of Natural Res., 566 P.2d 1314, 1319 (Alaska  

                                                                                                              (continued...)  



                                                               -5-                                                         7038
  


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

Because whether there are material questions of fact depends on the applicable legal  



standards, we address the questions of law first.  



         A.	       Alaska  Statute  29.35.450(c)(4)  Does  Not  Require  The  Borough  To  

                   Exclude Property From The RSA.  



                   "A service area is a specific geographical area within which a municipal  



service  is  furnished  by  a  borough.  Its  powers  derive  from  statute,  charter  and  



                 6 

                                                                                                      

ordinance."   The Alaska Constitution permits the assembly to establish, alter, or abolish  



                                                                                                             7  

"[s]ervice  areas  to  provide  special  services  within  an  organized  borough."     Alaska  



Statute  29.35.450,  in  turn,  grants  boroughs  and  unified  municipalities  the  ability  to  



establish, operate, alter, and abolish services areas.  



                   Subsection (c) of AS 29.35.450, the section at issue here, reads:  



                                                                 

                   If voters reside within a service area that provides road, fire  

                   protection, or parks and recreation services, abolishment of  

                   the service area is subject to approval by the majority of the  

                              

                   voters residing in the service area who vote on the question.  

                   A service area that provides road, fire protection, or parks  

                   and recreation services  in which voters reside may not be  

                                                                                         

                   abolished and replaced by a larger service area unless that  

                                                                   

                   proposal is approved, separately, by a majority of the voters  



          5(...continued)  



1977)  (due  process);  Concerned  Citizens  of  S.  Kenai  Peninsula  v.  Kenai  Peninsula  

                                                                                                   

Borough , 527 P.2d 447, 452 (Alaska 1974) (substantive due process).  The fourth relates  

to the political question doctrine.  See Kanuk ex rel. Kanuk v. State, Dep't of Natural  

                                                                                                   

Res. , 335 P.3d 1088, 1096-97 (Alaska 2014) (political question).  Because DeVilbiss has  

         

not raised his due process and equal protection claims on appeal, and because we do not  

                                                                                                              

dismiss his appeal as involving a non-justiciable political question, this supplemental  

authority does not alter our analysis.  



          6        N. Kenai Peninsula Rd. Maint. Serv. Area v. Kenai Peninsula Borough , 850  



P.2d 636, 639 (Alaska 1993).  



          7        Alaska Const. art. X,  5.  



                                                           -6-	                                                    7038
  


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

                                                                      

                   who vote on the question residing in the existing service area  

                    and  by  a  majority  of  the  voters  who  vote  on  the  question  

                   residing in the area proposed to be included within the new  

                    service  area  but  outside  of  the  existing  service  area.    A  

                    service area that provides road, fire protection, or parks and  

                                                                                              

                   recreation services in which voters reside may not be altered  

                    or combined with another service area unless that proposal is  

                                                          

                    approved, separately, by a majority of the voters who vote on  

                                                                                 

                   the question and who reside in each of the service areas or in  

                                                                         

                   the  area  outside  of  service  areas  that  is  affected  by  the  

                   proposal.  This subsection does not apply  



                    . . . .  



                    (4) to a change in the boundaries of a road service area to  

                                                                       

                    exclude a subdivision or parcel that does not rely on the use  

                                                                         

                    of roads maintained by the service area for the subdivision's  

                    or parcel's only access or for access that is required by the  

                    subdivision plat or by other regulation or ordinance.  



                   By its plain language, AS 29.35.450(c)(4) sets out a condition under which  

                                                    



"[t]his subsection [that is, (c),] does not apply."  Subsection (c) restricts the power that  

                                       



subsection (a) grants a borough or unified municipality to establish, operate, alter, or  



abolish  a  service  area  by  requiring  that  certain  changes  be  approved  by  voters.  

                                          



When (c)(4) makes that restriction inapplicable, the Borough retains all of the power and  

                    

discretion granted in (a), an entirely permissive subsection.8  

                                                                                          The inapplicability of (c)  



does not mandate any action.  



                   Determining the plain meaning of the statute is not the whole inquiry; we  



                                                             

also look to the legislative purpose and the intent of the statute.  We have adopted a  



sliding scale approach to statutory interpretation, under which "[t]he plainer the statutory  



          8        See   AS  29.35.450(a)  ("A  service  area  to  provide  special  services  in  a  



borough or unified municipality may be established, operated, altered, or abolished by  

ordinance, subject to (c) of this section.").  



                                                             -7-                                                       7038
  


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

                                                                                                               

language is, the more convincing the evidence of contrary legislative purpose or intent  

                9     "We  apply  this  sliding  scale  approach  even  if  a  statute  is  facially  

must  be."                                                                                                 

                        10   The legislative history of AS 29.35.450(c)(4) confirms that the plain  

unambiguous."                                                     



meaning captures the statute's purpose and intent.  



                                                                            

                     The  sponsor  statement,  attached  to  the  2007  House  Bill  that  amended  



                                                                                                                          

AS 29.35.450 by adding subsection (c)(4), offers insight into the legislative intent and  



                                                                                                                   

statutory purpose of the provision.  Then-Representative John Coghill wrote that the  



                                                                                                             

amendment  "provides  boroughs  with  a  means  of  altering  existing  road  service  area  



                                                                                                                    11  

                                                                                                                        One of the  

boundaries to ensure taxpayer fairness among residents of service areas." 



ills then-Representative Coghill identified  



                     arises where residents of a service area are required to pay  

                     into a service area even though they do not utilize the service  

                     area  roads  for  access  to  their  property.  Service  areas,  

                     however, are often reluctant to vote to remove property from  

                                                                              

                     the  service  area  because  it  effectively  raises  taxes  on  the  

                                                                 [12] 

                     remaining property owners.  



The statement concludes that subsection (c)(4) "allow[s] a borough assembly to exercise  

                                                                                                          



its judgment to alter, by ordinance, a service area boundary to exclude a property that  



           9         State, Dep't of Commerce, Cmty. & Econ. Dev., Div. of Ins. v. Alyeska  



Pipeline Serv. Co. , 262 P.3d 593, 597 (Alaska 2011) (quoting Gov't Emp. Ins. Co. v.  

Graham-Gonzalez, 107 P.3d 279, 284 (Alaska 2005)).  



           10        Id.  



           11        Rep. John Coghill, Sponsor Statement for H.B. 185, 25th Leg., 1st Sess.   



(May 13, 2007), available at Alaska Leg. Microfiche Collection No. 12086.  



           12        Id.  



                                                                  -8-                                                            7038
  


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

does not use service area roads as its sole or legally required access."13  



                    It is apparent that property like DeVilbiss's was part of the motivation  



                                      

behind subsection (c)(4).  It is equally apparent, however, that the statutory relief offered  



was an exception from subsection (c)'s voting requirements, not a mandatory exclusion  



from the service area for such property.  The amendment increased the Borough's ability  



                                                                                                                      

"to exercise its judgment" to exclude property like DeVilbiss's without having to seek  



                                                                                                                

voter  approval;  it  did  not  dictate  how  that  exercise  of  judgment  was  to  come  out.  



                                    

Subsection (c)(4) made it easier for DeVilbiss to seek a political remedy, but it did not  



create a judicial remedy.  



                    Based on the plain meaning of the statute and the indications of legislative  



                                                                                            

purpose and intent found in the legislative history, we hold that AS 29.35.450(c)(4) does  



not require the Borough to exclude DeVilbiss's property from the RSA.  



          B.        The Road Service Tax Is Permissible.  



                    DeVilbiss advances three arguments against the validity of the tax collected  



                                                                  

to pay for road services in the RSA:  (1) that the tax is actually a special assessment and  



                                                                                                  

thus must be apportioned by reference to the benefit received and used only to finance  



                                                                                                      

capital improvements; (2) that the Borough required additional voter approval before it  



                                                                                                   

had the power to enact the tax; and (3) that the tax is invalid absent a documented benefit  



to his property.  



          13       Id.  



                                                             -9-                                                           7038  


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

                    1.        The tax is not a special assessment.  



                    DeVilbiss argues that what the Borough labels an ad valorem tax is in fact  

"an  illegal  special  assessment  for  services  from  which  he  derives  no  benefit."14                                   If  



correct, this argument might invalidate the levy, as Alaska  law only permits special  



                                                                                                      

assessments  to  pay  for  "capital  improvements,"  and  not  routine  maintenance  and  



             15 

                                                                                                                 

services.        However, DeVilbiss confuses the method of calculation with the purposes to  



which the resulting funds are put.  



                            

                    The Alaska Constitution grants the assembly the power to "authorize the  



                                                                                                     

levying of taxes, charges, or assessments within a service area to finance the special  



               16  

                                                                                                           

services."         The distinction between these methods of financing is how an individual's  



                                                                                                                    

obligation is calculated.  Ad valorem taxes are "proportional to the value of the thing  



                                                 17  

                                                     Special assessments, in contrast, are calculated "in  

taxed," in this case real property.  



                                                      18  

proportion  to  the  benefit  received."                    Contrary  to  DeVilbiss's  argument,  whether  a  



          14        This argument is arguably "waived because, as we have repeatedly held,  



'a party may not raise an issue for the first time on appeal.' " Espeland v. OneWest Bank,  

                                                                                         

FSB , 323 P.3d 2, 14 (Alaska 2014) (quoting Hymes v. DeRamus , 222 P.3d 874, 889  

                                              

(Alaska  2010)).           Before  the  superior  court,  DeVilbiss  repeatedly  argued  that  "  'ad  

                            

valorem' is how the [Borough] is collecting moneys for 'special services.'  With a mill  

                                                                                    

rate on property values."  (Emphasis deleted.)  However, because the Borough does not  

                                                                                                       

argue that DeVilbiss waived this point, we will address its merits.  



          15        See AS 29.46.010(a) ("A municipality may assess against the property of  



                                                                                                         

a  state  or federal governmental unit and private real property to be benefited by  an  

                                                                                                

improvement all or a portion of the cost of acquiring, installing, or constructing capital  

improvements.").  



          16        Alaska Const. art. X,  5; see also AS 29.35.470(a) (same).  



          17        BLACK 'S LAW DICTIONARY 63 (10th ed. 2014).  



          18        AS 29.46.060(a).  



                                                             -10-                                                        7038
  


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

                                      

particular  levy  is  a  tax  or  an  assessment  does  not  depend  on  the  use  to  which  the  



                                                                                       

resulting funds are put, and we will not interfere with the Borough's choice to use a tax,  



                                                                     19  

charge, or assessment to finance its activities.                         



                    The evidence in this case clearly establishes that DeVilbiss pays a tax rather  

                                                                                             



than an assessment. His tax bill includes a line for "Lazy  Mountain RSA," which is  

                                                                                           



calculated by applying a mill rate to the assessed value of his property.  This is the classic  

                                                            



method of calculating ad valorem property taxes.  The Borough exercised its powers  



                                                                                                                  

under the Alaska Constitution and AS 29.35.470 to levy a tax in the RSA, and the way  



the collected funds were spent could not turn that tax into a special assessment.  



                    2.        The Borough has statutory authority to tax for road services.  



                                                         

                    DeVilbiss  argues  that  because  Matanuska-Susitna  is  a  second-class  



borough, it requires an additional vote of RSA residents, beyond the vote that set the  



                              

RSA's borders, in  order to have the power to tax for road services.  This argument  



ignores the specific taxing authority the legislature has conferred on the Borough.  



                                                                                            

                    Matanuska-Susitna is a second-class borough, which makes it "a 'general  

law' municipality, meaning that it only has those powers conferred by statute."20                                             We  



                                                                                       

interpret statutory grants of taxing authority "in favor of the broad power of municipal  



                      21  

governments."              Article X, section 1 of the Alaska Constitution establishes that "[a]  



                                                                               

liberal construction shall be given to the powers of local government units."  We have  



          19        See Fairbanks N. Star Borough v. Coll. Utils. Corp.                              , 689 P.2d 460, 465  



(Alaska 1984).  



          20        Alliance of Concerned Taxpayers, Inc. v. Kenai Peninsula Borough , 273  

                                                                                               

P.3d 1128, 1131 n.1 (Alaska 2012) (citing Alaska Const. art. X,  11 and AS 29.04.020).  

                                                                                            



          21        City of St. Mary's v. St. Mary's Native Corp., 9 P.3d 1002, 1007 (Alaska  



2000).  



                                                              -11-                                                         7038
  


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

concluded  that  this  provision  "restrains  us  from   implying  limitations  'on  the  taxing  



                                                                               22  

authority of a municipality where none are expressed.' "                           



                   The parties direct our attention to three statutory provisions relevant to the  

                                                                          



Borough's  statutory  authority  to  tax  RSA  residents  for  road  services.    Alaska  



                                                

Statute 29.35.470 empowers the assembly to "levy or authorize the levying of taxes,  

                                                                                                           23    Alaska  

charges,  or  assessments  in  a  service  area  to  finance  the  special  services."                         



Statute 29.45.010 grants boroughs the power to "levy . . . a property tax in a service area  



                                                          24  

for functions limited to the service area."                   And AS 29.35.490(a) provides:  



                   A second class borough may exercise in a service area any  

                   power  granted  a  first  class  city  by  law  or  a  nonareawide  

                   power that may be exercised by a first class borough if  

                                                                                                 



                            (1)        the  exercise  of  the  power  is  approved  by  a  

                   majority of the voters residing in the service area; or  



                            (2)      all owners of real property in the service area  

                   consent in writing to the exercise of the power if no voters  

                                                                                          

                   reside in the service area.  



                   DeVilbiss argues that the last of these three provisions, AS 29.35.490,  



requires the Borough to attain voter approval before it has the power to levy the road  



services tax.  He offers no support for his reading of this statute as the sole source of  



authority  over  service  areas  for  second-class  boroughs  and  no  reason  to  ignore  

               



AS 29.45.010, the statutory provision that authorizes boroughs to levy property taxes in  

                                                                                         



service areas to pay for the services provided.  We have previously held that if a borough  



         22        City of St. Mary's, 9 P.3d at 1007 (quoting Liberati v. Bristol Bay Borough ,  



584 P.2d 1115, 1121 (Alaska 1978)) (additional footnote omitted).  



         23        AS 29.35.470(a).  



         24        AS 29.45.010(a)(3).  



                                                          -12-                                                    7038
  


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

                                               

is authorized to provide a special service, it also has statutory authority to levy taxes to  



                                        25  

finance those services.                     We reaffirm that holding today.  



                       3.	         The validity of a tax does not depend on whether a taxpayer  

                                   receives a special benefit.  



                       DeVilbiss's  final  argument  against  the  validity  of  the  road  service  tax  



                                                                                

focuses on the fact that he allegedly receives no specific benefit from the programs and  



                                                                             

services that the tax funds. This contention requires us to decide whether a taxpayer can  



                                                                                                         

only be validly taxed if he receives some benefit from the projects the tax funds.  We  



                  

hold that the validity of a tax does not depend on whether a taxpayer receives a special  



benefit.  



                                                        

                        The United States Supreme Court has considered DeVilbiss's argument in  



                                                                                                                               

its interpretation of the federal constitution.  In Memphis & Charleston Railway Co. v.  



Pace , a railroad alleged that it received no benefits from the road services for which it  

was taxed and thus that the taxes violated the due process and equal protection clauses.26  



The Supreme Court rejected that interpretation and instead held that the validity of ad  



valorem taxes does not "depend upon the receipt of some special benefit as distinguished  

                                         

                                                                             27   In subsequent years, the Supreme Court  

from the general benefit to the community."  

                                                                                   



has reaffirmed that "the constitutional power to levy taxes does not depend upon the  



                                                                                         

enjoyment by the taxpayer of any special benefit from the use of the funds raised by  



            25         See Fairbanks N. Star Borough   v. Coll. Utils. Corp.                                         , 689 P.2d 460, 464  



(Alaska 1984) (holding "that the Borough was authorized to exercise road construction       

powers in the College Service Area and, under AS 29.63.090(b), [the predecessor statute               

to AS 29.45.010,] could properly levy taxes to finance such construction").  



            26          282 U.S. 241, 245 (1931).  



            27         Id.  at 246; see also St. Louis & Sw. Ry. Co. v. Nattin , 277 U.S. 157, 159  



(1928) ("As the assailed tax was general and ad valorem, its legality does not depend  

upon the receipt of any special benefit by the taxpayer.").  



                                                                        -13-	                                                                  7038
  


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

              28  

                                                                                                     

taxation."        It explained its reasoning most thoroughly in Carmichael v. Southern Coal  



& Coke Co.:  



                                                                                   

                   A tax is not an assessment of benefits.  It is, as we have said,  

                                                                              

                   a means of distributing the burden of the cost of government.  

                                                  

                   The  only  benefit  to  which  the  taxpayer  is  constitutionally  

                   entitled is that derived from his enjoyment of the privileges  

                   of living in an organized society, established and safeguarded  

                         

                   by the devotion of taxes to public purposes.  Any other view  

                                                                         

                   would preclude the levying of taxes except as they are used  

                   to compensate for the burden on those who pay them, and  

                   would  involve  the  abandonment  of  the  most  fundamental  

                   principle of government - that it exists primarily to provide  

                                                   [29] 

                   for the common good.  



                   Effectively every state high court to have considered the same question with  

regard to its state constitution has reached the same conclusion as the Supreme Court.30  



                                                                                                    

The only exceptions are New York's appellate courts, which have held that only property  



                                                                                          

that is "capable of receiving the service funded by the special ad valorem levy" may be  



                                                 31  

                                                                               

subject  to  special  district  taxes.                 However,  this  holding  reflects  not  the  state  



          28       Nashville, Chattanooga   & St. Louis Ry. v. Wallace, 288 U.S. 249, 268  



(1933).  



          29       301 U.S. 495, 522-23 (1937) (citation omitted).  



          30       See, e.g., People   ex   rel.  Averna v.   City of Palm Springs, 331 P.2d 4, 10  



(Cal. 1958); Friends of Ch           amber Music v.  City & Cnty. of Denver, 696 P.2d 309, 321-22  

(Colo. 1985); People ex rel. Hanrahan v. Caliendo ,  277 N.E.2d  319, 32                             3-34  (Ill. 1971);  

Stottlemeyer v. Gen. Motors Corp., 250 N.W.2d 486, 490-91 (Mich. 1977);  Capitol  

Novelty Co. v. Evatt , 61 N.E.2d 211, 213 (Ohio 1945).  



          31       N.Y.  Tel.  Co.  v.  Supervisor  of  Oyster  Bay ,  828  N.E.2d  964,  966  (N.Y.  



2005).  



                                                           -14-                                                      7038
  


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

                          

                                      

constitution,  but  instead  a  New  York  statute  that  dictates  that  special  districts  only  



                                                 32                                                  33 

contain "benefited real property."                   Alaska has no analogous statute.  



                                                                                                  

                   We adopt the reasoning of our sister courts and hold that the validity of a  



                                                                                                                

tax does not depend on whether a taxpayer receives a special benefit.  Taxes must have  



                         34  

                                                                                 

a public purpose,           but the programs they fund need not specially benefit every taxpayer  



                                                                                                            

who is required to contribute his share.  Childless couples pay taxes that fund schools,  



                                                               

incorporeal  corporations  pay  taxes  that  fund  hospitals,  and  RSA  residents  who  



exclusively use state-maintained roads pay taxes that fund road services elsewhere in  



their service area.  A tax bill is not a ledger to be balanced by the receipt of special  



                                                                                                               35  

                                                                                                                   The tax  

benefits; it is "a means of distributing the burden of the cost of government." 



challenged in this case is valid.  



          C.        There Are No Material Questions Of Fact.  



                   Because we conclude that a tax need not provide a special benefit to every  

                                                           



taxpayer to be valid, there are no genuine issues of material fact in dispute.  The superior  

                                                                                             



court was therefore correct to grant the Borough summary judgment.  



          D.       It Was Not Error To Assess Attorney's Fees Against DeVilbiss.  



                   Under Alaska Civil Rule 82(b)(2), in cases resolved without a trial in which  



                                                                                                            

the prevailing party recovers no money judgment, the prevailing party is entitled to  



          32       N.Y. REAL PROP .  TAX  LAW   102(14) (McKinney 2014); see id.  



          33       See, e.g.,  AS 29.35.450 (listing  conditions on the creation of service areas).  



          34       Alaska  Const. art. IX,  6; see also Weber v. Kenai Peninsula Borough , 990  



P.2d 611, 614-15 (Alaska 1999); Keane v. Local Boundary Comm'n , 893 P.2d 1239,  

1248 (Alaska 1995).  



          35        Carmichael v. S. Coal & Coke Co., 301 U.S. 495, 522 (1937).  



                                                            -15-                                                       7038
  


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

"20  percent  of  its  actual  attorney's  fees  which  were  necessarily  incurred."36                                       But  



AS 09.60.010 shields non-prevailing litigants from attorney's fee awards associated with  



non-frivolous constitutional claims, so long as "the claimant did not have sufficient  



                                                                           

economic incentive to bring the action or appeal regardless of the constitutional claims  



                37  

involved."          DeVilbiss argues that the superior court erred when it concluded that "he  



                                                                                                 

had  sufficient  economic  incentive  to  bring  [his  constitutional claims]"  and  awarded  



Rule 82(b) attorney's fees against him.  We cannot agree with DeVilbiss.  



                                                                   

                    When determining a litigant's primary purpose in bringing a constitutional  



                                                  

claim, "[w]e generally examine two factors - the nature of the claim and relief sought  



                                                              38  

and the direct economic interest at stake."                       Here DeVilbiss sought both injunctive relief  



                                                                                                                        

against future road services tax assessments and an order directing the Borough to credit  



his property tax account with all of his road services tax payments during the 20-year  



                                                                                                     

period the tax had been collected.  The direct economic benefit of a successful suit would  



                                                                                           

have been in the tens of thousands of dollars: At the time of the litigation DeVilbiss was  



paying  approximately  $1,500  a  year  in  road  services  taxes.    Under  any  standard  of  



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



          37        AS 09.60.010(c)(2).  See also Alaska Conservation Found. v. Pebble Ltd.   



P'ship , 350 P.3d 273, 279-84 (Alaska 2015) (analyzing meaning of "sufficient economic           

incentive"  under  AS  09.60.010);  id.  at  281-82  (focusing  on  "primary  purpose"  and  

stating that "[a] litigant has sufficient economic incentive to bring a claim when it is  

brought primarily to advance the litigant's direct economic interest, regardless of the  

nature of the claim").  



          38        Alaska Conservation Found. , 350 P.3d at 282.  



                                                              -16-                                                         7038
  


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

           39 

                                                   

review,       DeVilbiss had sufficient economic incentive to bring his claim against the  

Borough regardless of the constitutional nature of that claim.40  



                                                                         

                   Accordingly, we cannot conclude that the superior court erred by awarding  



Rule 82(b) attorney's fees against DeVilbiss.  



V.        CONCLUSION  



                   We AFFIRM the superior court's decision.  



         39        See  id.   at  284  n.60  (recognizing  that  we  have  not  yet  determined  the  



appropriate  standard  of  review  for  trial  courts'  "sufficient  economic  incentive"  

determinations).  



         40  

                                          

                   See, e.g., In re 1981, 1982, 1983, 1984 & 1985 Delinquent Prop. Taxes  

                                                                 

Owed to the City of Nome, Alaska, 780 P.2d 363, 368 (Alaska 1989) (concluding that  

tens of thousands of dollars in tax relief was "sufficient economic incentive" to bring  

claim notwithstanding that issue was of public importance (under former public interest  

                                                         

litigation doctrine)).  



                                                          -17-                                                     7038
  

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