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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. City of Kodiak v. Kodiak Public Broadcasting Corporation (9/14/2018) sp-7291

City of Kodiak v. Kodiak Public Broadcasting Corporation (9/14/2018) sp-7291

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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                                       



CITY  OF  KODIAK,                                                    )  

                                                                     )     Supreme  Court  No.  S-16598  

                                Appellant,                           )  

                                                                                                                                     

                                                                     )     Superior Court No. 3KO-15-00277 CI  

           v.                                                        )  

                                                                                               

                                                                     )     O P I N I O N  

                                 

KODIAK PUBLIC BROADCASTING                                           )
  

CORPORATION,                                                         )                                                 

                                                                           No. 7291 - September 14, 2018
  

                                                                     )  

                                Appellee.                            )  

                                                                     )  



                                                                                                              

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

                                                                                         

                     Judicial District, Kodiak, Steve W. Cole, Judge.  



                                                                                                             

                     Appearances:   Holly  C. Wells  and Katie  S. Davies, Birch  

                                                                                                            

                     Horton Bittner & Cherot, and Brooks W. Chandler, Boyd,  

                                                                                                                       

                     Chandler  &  Falconer,  LLP,  Anchorage,  for  Appellant.  

                                                                                                          

                      Steven  P.  Gray,  Law  Office  of  Steven  P.  Gray,  A.P.C.,  

                                          

                     Kodiak, for Appellee.  



                                                                                                          

                     Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  

                                           

                     and Carney, Justices.  



                                                     

                      STOWERS, Chief Justice.  



I.         INTRODUCTION  



                                                                                                                                             

                     After prevailing against the City of Kodiak on a Public Records Act claim,  



                                                                                                                                

Kodiak Public Broadcasting Corporation (known by the call letters of its radio station,  



                                                                                                                                       

KMXT) was awarded full attorney's fees under AS 09.60.010(c)(1), which provides for  



                                                                                                                                         

attorney's  fees  to  a  claimant  who  prevails  in  asserting,  protecting,  or  enforcing  a  


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

 constitutional right.                                                                                                The City appeals that fee award, arguing that KMXT's claim was                                                                                                                                                                                                                                                                                                                  



 statutory   rather   than   constitutional,   that   the   award   included   fees   which   were   not  



necessarily and reasonably incurred, and that the award erroneously included municipal                                                                                                                                                                                                                                                                                                                                                                             



 sales tax on attorney's fees.                                                                                                                                                 We agree that the court erred in granting KMXT full                                                                                                                                                                                                                                                                     



 attorney's fees as a constitutional claimant.                                                                                                                                                                                                                     We therefore reverse the superior court's                                                                                                                                                                       



 award of attorney's fees and remand for a fee award pursuant to Alaska Civil Rule 82                                                                                                                                                                                                                                                                                                                                                                                                                         



 instead.   We also agree that it was error to include sales tax in the fee award, and direct                                                                                                                                                                                                                                                                                                                                                                                              



the superior court on remand to exclude sales tax from its revised fee award. On remand,                                                                                                                                                                                                                                                                                                                                                                                      



the superior court should also address the City's objections to particular billing entries                                                                                                                                                                                                                                                                                                                                                                                            



 and must exclude fees incurred for any legal work that the court finds was duplicative,                                                                                                                                                                                                                                                                                                                                                                



unnecessary, or not reasonably related to the litigation.                                                                                                                                                                                                                 



II.                                     FACTS AND PROCEEDINGS                                                                 



                                        A.                                     The Public Records Request                                                                                                    



                                                                               This case arises from the aftermath of a September 2015 incident in which                                                                                                                                                                                                                                                                                                                                 



the Kodiak Police Department responded to a report of attempted theft from a vehicle.                                                                                                                                                                                                                                                                                                                                                                                                                                               



During that incident an officer used pepper spray in the course of detaining the suspect.                                                                                                                                                                                                                                                                                                                                                                                                                                           



No arrest was made and no charges were filed against the suspect. The incident garnered                                                                                                                                                                                                                                                                                                                                                                                   



 significant attention in the local community and media as reports suggested the suspect                                                                                                                                                                                                                                                                                                                                                                                          



-  who apparently is autistic - was detained with excessive force.  The City initiated   



 an internal investigation of the incident.                                                                                                                                            



                                                                               A few days after the incident, KMXT wrote to the City asking for the                                                                                                                                                                                                                                                                                   



release of "all public records . . . generated in connection with [the incident]"                                                                                                                                                                                                                                                                                                                                                                                      pursuant  

to the Alaska Public Records Act.                                                                                                                                                                  1  The City responded that it was processing the request  

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   



 and asked that KMXT fill out a formal request form, which KMXT did. The City denied  

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       



                                        1  

                                                                                                    

                                                                               AS 40.25.100-.295.  



                                                                                                                                                                                                                                                        -2-                                                                                                                                                                                                                                                                   7291  


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

the request in early October, asserting that the records were exempt from disclosure                                                                                         



                                                                                        2  

under  Kodiak   City   Code   2.36.060(e)                                                                                                                               

                                                                                            because  they  "constitute[d]  law  enforcement  



                                                                                                             

records regarding a pending investigation" and because disclosure would "result in an  



                                                                                                                                                                                              

invasion of privacy rights."  However, the City also stated that it expected most of the  



                                                                                                                                                                                      

requested records would be subject to disclosure upon the completion of the City's  



                                                                                                                                                                                                       

internal investigation. KMXT then requested a target date for production of the records;  



                                                                                                                                                                                             

in late October the City again replied that the records would be released when the  



                                                                                                                                                             

investigation was complete, which it anticipated could take up to 60 days.  



                                                                                      

               B.             Initial Superior Court Proceedings  



                                                                                                                                                                                 

                              In November KMXT filed a complaint seeking injunctive relief pursuant  



                                      3  

                                                                                                                                                                                            

                                         as well as costs and attorney's fees. KMXT sought to compel the City  

to AS 40.25.125, 



                                                                                                                                                                                    

to (1) provide a list of withheld records and the claimed exception for each; (2) explain  



                                                                                                                                                                                                

for each withheld record how its disclosure would impede the City's investigation or  



                                                                                                                                                                                                 

invade someone's privacy rights; (3) file the disputed records in camera for the court to  



                                                                                                                                                                                              

review the City's claimed exemptions; and (4) release all requested records that were not  



                                                                                                                                                                                             

exempt from disclosure.  The City's answer asserted the enforcement-proceeding and  



                                                                               

privacy exemptions as affirmative defenses.  



               2              Kodiak City Code                          2.36.060(e) mirrors AS 40.25.120(a)(6), which exempts                                                      



from disclosure law enforcement records the release of which "could reasonably be                                                                                                              

expected to interfere with enforcement proceedings" or "could reasonably be expected                                                                                             

to constitute an unwarranted invasion of the personal privacy of a suspect, defendant,                                                                  

victim, or witness."     



               3              AS 40.25.125 provides that "[a] person having custody or control of a  

                                                                                                                                                                                                  

public record . . . may be enjoined by the superior court from denying, obstructing, or  

                                                                                                                                                                   

attempting to obstruct, the inspection of public records subject to inspection  under  

                                                                                                                                                             

AS 40.25.110 or 40.25.120."  

                                        



                                                                                               -3-                                                                                       7291
  


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                    Before  the  City  filed  its  answer,  KMXT  filed  a  "Motion  to  Require  



                                                                                                                                

Immediate  Compliance  with  Public  Records  Act"  seeking  to  compel  the  City  to  



                                                                                                                                     

immediately produce three chest camera videos the City had identified in a privilege log  



                                                                                                                  

on the grounds that the City had failed to articulate any factual basis for its claimed  



                                                                                                                               

exemptions.  The City opposed the motion, arguing that disclosure would violate the  



                                                                                                                            

privacy of the individuals involved, interfere with the due process rights of the KPD  



                                                                                                 

officers under investigation, and undermine the integrity of its "ongoing investigation  



                                                                                                                                 

and enforcement action." KMXT's reply argued that the City had not met the burden of  



                                                                                                                      

proofto support its claimed exemptions because it failed to producesupporting affidavits  



                                                                                                                      

or other evidence, in camera or otherwise; that there was no merit to the City's invasion- 



                                                                                                                                     

of-privacy argument because the identity of the suspect was already public knowledge;  



                                                                                                                              

and that the claimed law enforcement exemption was without merit because the City was  



                                                                                                                          

not conducting a criminal investigation and had not identified how disclosure would  



                                                   

interfere with the City's internal investigation.  



                                                                                                                     

                    On December 22 the superior court issued an order granting KMXT's  



                                                                                                                       

compliance motion because the City had failed to make the required showing to establish  



                                                                                                                                

either of its asserted exemptions.  The court ordered the City to "immediately, but by  



                                                                                                                    

absolutely no later than December 31, 2015, release to KMXT the three chest-cam  



                                                                                                                                 

videos."  The City issued a press release on December 29 announcing its intention to  



                                                                                                                              

release the chest camera videos by December 31. The press release also announced that  



                                                                                                                          

the City would release all requested police reports, audio recordings, and videos related  



                                                                         

to the September incident because they had all been withheld on the basis of the same  



                                                                                                                          

exemptions the superior court had rejected. On December 31 the City released all public  



                                                                                    

records requested by KMXT and others relating to the incident.  



                                                                                                                                 

                    On the day after the City's press release, and the day before its release of  



                                                                                                                          

the records, KMXT filed a motion for order to show cause, arguing that the City's  



                                                               -4-                                                         7291
  


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

decision to release the requested videos on December 31 rather than sooner violated the                                                                                                                                                                                                          



court's order to release the videos "immediately," and requesting a contempt hearing.                                                                                                                                                                                                                         



The City argued in response that it fully complied with the order when it released the                                                                                                                                                                   



videos by the order's December 31 deadline.                                                                                                                    The court denied the motion, reasoning                                                                    



that "while the court told the City to release the items 'immediately,' it also said 'by                                                                                                                                                                                                      



absolutely no later than Dec[ember] 31, 2015,' and the City met that deadline."                                                                                                                                                                



                                              C.                     Continuing Litigation   



                                              In March 2016 the City sought to dismiss the case, arguing that KMXT had                                                                                                                                                                         



received the relief sought in the complaint and that no issues remained to be litigated.                                                                                                                                                                                                                      



                                                                                                                                                                                                                                                                                   4  

The parties litigated this issue through motion practice for more than two months.                                                                                                                                                                                                     After  



                                                                                                                                                                                                                                                                                            

a  trial  scheduling  conference  in  June,  the  parties  reached  a  consensus  that  all  that  



                                                                                                                                                                                                                                                                                                              

remained in the case was for KMXT to seek a declaratory judgment and attorney's fees.  



                                                                                                                                                                                                                                                                                                              

The City and KMXT stipulated to an entry of declaratory judgment in KMXT's favor.  



                                                                                                                                                                                                                                                                                        

The court issued a judgment incorporating by reference its December 22, 2015 order  



                                                                                                                                                                                                                                                                                              

without further explanation, named KMXT the prevailing party, and ordered that any  



                                                                                                                                                                                                         

request for attorney's fees should be submitted within ten days.  



                                                                                                                                                                                                                                                                             

                                              KMXT filed a timely request for $24,312.50 in attorney's fees incurred  



                                                                                                                                                                                                                                                                                              

through  June  2016,  "at  least  $625"  for  additional  fees  incurred  in  preparing  the  

                                                                                                                                                                                                                           5       KMXT claimed that  

                                                                                                                                                                                                                                                                                             

attorney's fees motion, and $315 in City of Kodiak sales tax. 



because Alaska case law has characterized a citizen's access to public records as a  

                                                                                                                                                                                                                                                                                                      



                       4                       Sometime in March 2016 KMXT also propounded discovery requests on                                                                                                                                                                                  



the City, seeking information and admissions relating to the City's decision whether to                                                                                                                                                                                                             

release the public records, the factual basis for its claimed exemptions, and its efforts to                                                                                                                                                                                                        

comply with the December 22 court order.                                                                                       



                       5                      KMXT also requested costs of $200 for the initial filing fee, pursuant to  

                                                                                                                                                                                                                                                                                                    

Alaska Civil Rule 79.  

                                                                



                                                                                                                                                 -5-                                                                                                                                      7291
  


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

 fundamental   right,   KMXT   was   entitled   to   full   reasonable   attorney's   fees   under  



AS 09.60.010(c)(1) for prevailing in an action enforcing a constitutional right. The City                                                                                                                                                                                                                                                                                                                                                             



 opposed the request; it conceded that KMXT was entitled under Rule 82 to 20% of fees                                                                                                                                                                                                                                                                                                                                                                  



reasonably   and   necessarily   incurred,   but   it   objected   to   granting   full   fees   under  



AS    09.60.010(c)(1)   on   the    grounds    that    KMXT's    claims    were    statutory,    not  



 constitutional. TheCity                                                                                                      also argued that becauseKMXTeffectively                                                                                                                                                                                             "won" its case when  



the court rejected the City's claimed exemption on December 22, 2015, the majority of                                                                                                                                                                                                                                                                                                                                                                            



 fees and costs incurred after that date were not necessary.                                                                                                                                                                                              



                                                                       KMXT maintained in its reply that all the fees incurred and requested were                                                                                                                                                                                                                                                                                                 



reasonable and                                                                      necessary,   and it reasserted                                                                                                                                  its  claim for                                                         full attorney's                                                                    fees as the                                



prevailing party in an action concerning a constitutional right. In the alternative, KMXT                                                                                                                                                                                                                                                                                                                                            



 argued that equitable factors, including the significance of the matter and the City's                                                                                                                                                                                                                                                                                                                                                   



 alleged bad-faith litigation, warranted deviating from Rule 82's standard 20% rate.                                                                                                                                                                                                                                                                                                                                             



                                                                       The court granted KMXT's motion without elaboration, awarding KMXT                                                                                                                                                                                                                                                                                            



"full attorney's fees of $24,627.50" pursuant to AS 09.60.010, explicitly including $315                                                                                                                                                                                                                                                                                                                                                          

                                                                 6            The court did not craft an alternative award under Rule 82 as KMXT  

in sales tax.                                                                                                                                                                                                                                                                                                                                                                                                                      



requested. The City appeals only the amount of the fee award, and does not appeal either  

                                                                                                                                                                                                                                                                                                                                                                                                                                              



the declaratory judgment or the superior court's prevailing-party determination.  

                                                                                                                                                                                                                                                                                                                                                           



                                    6                                  The court granted KMXT's request for Rule 79 costs in a separate order,                                                                                                                                                                                                                                                                                                                                    



but appears to have rejected KMXT's request for additional fees incurred in preparing                                                                                                                                                                                                                                                                                                                                   

the motion for attorney's fees; the fee award corresponds exactly to the fees KMXT                                                                                                                                                                                                                                                                                                                                                 

documented through June 2016 plus sales tax, and the court did not indicate that any                                                                                                                                                                                                                                                                                                                                           

 additional fees would be recoverable.                                                                                               



                                                                                                                                                                                                                                -6-                                                                                                                                                                                                                7291
  


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

III.	       STANDARD OF REVIEW               



                       We review an award of attorney's fees, including whether particular fees       



                                                                                                7  

should be included in the award, for abuse of discretion.                                                                                   

                                                                                                   An abuse of discretion "exists  



                                                                                                                                                     8  

                                                                                                                                                         

                                                                                                                                  

if an award is arbitrary, capricious, manifestly unreasonable, or improperly motivated." 



                                                                                                                                                   

But  "[w]e  review de  novo  whether  the  superior  court  correctly  applied  the  law  in  



                                             9  

                                                                                                                                             

awarding attorney's fees."                      "Interpretation of AS 09.60.010 is a question of law to which  



                                                                 10  

                                                                                                                                              

we apply our independent judgment."                                   When deciding legal questions, "we will adopt  



                                                                                                                                           11  

                                                                                                                              

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



IV.	        ANALYSIS  



                                                                                                                                     

            A.	        It  Was  Error  To  Grant  Full  Attorney's  Fees  Under  AS  09.60.010  

                                                                                                                    

                       Because KMXT Did Not Assert A Constitutional Claim.  



                                                                                                                                             

                       The City's main point on appeal is that the superior court "erred in ruling  



                                                                                                                                      

that KMXT asserted a constitutional claim, and was, therefore, entitled to full attorney's  



                                                                                                                                                 

fees."        Phrased  differently, the primary issue is  whether  it was error  to award  full  



                                                                                                                                               

attorney's fees under AS 09.60.010, rather than awarding partial fees under Civil Rule  



                                                                                                                                     

82.  We conclude that it was, because KMXT did not assert a constitutional claim.  



            7          See   Riddle   v.   Lanser,   ___   P.3d   ___,   Op.   No.   7235   at   14,   2018   WL  



 1661600, at *7 (Alaska Apr. 6, 2018).                  



            8	         Id. (quoting Fernandes v. Portwine, 56 P.3d 1, 4-5 (Alaska 2002)).  

                                                                                                                                



            9          Brandner v. Pease, 361 P.3d 915, 920 (Alaska2015) (alteration in original)  

                                                                                                                                         

(quoting Dearlove v. Campbell, 301 P.3d 1230, 1233 (Alaska 2013)).  

                                                                                                             



            10         Alaska Conservation Found. v. Pebble Ltd. P'ship , 350 P.3d 273, 279  

                                                                                                                                                

(Alaska 2015) (citing Krone v. State, Dep't of Health & Soc. Servs., 222 P.3d 250,  

                                                                                                                                               

252-53, 257-58 (Alaska 2009)).  

                                            



            11         Lake  & Peninsula  Borough  Assembly  v.  Oberlatz,  329  P.3d  214,  221  

                                                                                                                                                

(Alaska 2014) (quoting Soules v. Ramstack, 95 P.3d 933, 936-37 (Alaska 2004)).  

                                                                                                                                  



                                                                         -7-	                                                                 7291
  


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

                                        Alaska Statute 09.60.010(c)(1) provides that                                                                                           



                                        [i]n 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 . . . shall award, subject to [certain limitations], full                                                                                                        

                                        reasonable attorney                                           fees and costs to a claimant, who, as                                                                        

                                        plaintiff,   counterclaimant,   cross   claimant,   or  third-party  

                                        plaintiff in the action or on appeal, has prevailed in asserting                                                                                        

                                        the right.                 [12]  



The  parties  do  not  dispute  the  superior  court's  determination  that  KMXT  was  the  

                                                                                                                                                                                                                                                       



prevailing party. Instead, they dispute whether KMXT's action seeking injunctive relief  

                                                                                                                                                                                                                                                   



under thePublicRecords Act "concern[ed]theestablishment, protection, or enforcement  

                                                                                                                                                                                                                             

of a [constitutional] right."13  

                                                             



                                        The  City  argues  that  the  superior  court  erred  in  finding  that  KMXT  

                                                                                                                                                                                                                                          



prevailed  in  asserting  a  constitutional  claim  because  KMXT's  complaint  alleged  

                                                                                                                                                                                                                                          



violations only of the Public Records Act and Kodiak City Code 2.36.060.  But KMXT  

                                                                                                                                                                                                                                            



contends that we and the Alaska Legislature have characterized access to public records  

                                                                                                                                                                                                                                            

as a "fundamental right,"14  and that because KMXT successfully asserted and enforced  

                                                                                                                                                                                                                                        



                    12                  "Alaska Statute 09.60.010 was enacted to abrogate our previous common                                                                                                                           



law public interest litigation attorney's fees framework and replace it with a narrower                                                                                                                                             

constitutional litigation framework."                                                                           Alaska Conservation Found.                                                                 , 350 P.3d at 274.                                        

AS 09.60.010(c) has two parallel provisions:                                                                                              subsection (1) provides full reasonable                                                

attorney's   fees to                                    a plaintiff who                                  prevails on                          a constitutional claim; subsection                                                                        (2)  

protects a plaintiff who brings an unsuccessful constitutional claim from an adverse                                                                                                                                                      

attorney's fee award so long as the constitutional claim was not frivolous.                                                                                                                    



                    13                  AS 09.60.010(c).  

                                                   



                    14                  See City of Kenai v. Kenai Peninsula Newspapers, Inc., 642 P.2d 1316,  

                                                                                                                                                                                                                                                

 1323 (Alaska 1982) ("In balancing the [applicable] interests . . . the scales must reflect  

                                                                                                                                                                                                                                               

the fundamental right of a citizen to have access to the public records as contrasted with  

                                                                                                                                                                                                                                                     

                                                                                                                                                                                                                          (continued...)  



                                                                                                                             -8-                                                                                                                   7291
  


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

"the   public's   right   to   access   government   information"   the   superior   court   correctly  



determined that AS 09.60.010(c)(1) applied.                                                          KMXT argues that it is irrelevant that the                                           



court ruled on the basis of the Public Records Act rather than the Alaska Constitution                                                                               



because "[t]he applicability of AS 09.60.010(c) is determined by the source of the right                                                                                               



asserted[,] not the source of the rule of law."                                                           But the superior court did not rule on                                           



whether the right to public records derives from the constitution, and it was not asked to                                                                                                   



do so.          The question before us is not whether a constitutional right to public records                                                                                  



exists,   but   rather  whether   KMXT   asserted   a   claim   "concerning   the   establishment,  

protection, or enforcement" of a constitutional right.                                                               15  



                              In  State  v.  Jacob  we  reversed  an  award  of  full  attorney's  fees  under  

                                                                                                                                                                                    



AS 09.60.010(c)(1) because we concluded that the prevailing party did not assert a  

                                                                                                                                                                                              

                                             16   That case involved an action for declaratory and injunctive relief  

constitutional claim.                                                                                                                                                                 

                                



against the Office of Children's Services for failing to provide the Jacobs with statutorily  

                                                                                                                                                                           



required   notice   of   their   grandchildren's   child-in-need-of-aid   and   permanency  

                                                                                                                                                                   

                             17   In an initial appeal we held that the Jacobs were entitled to a declaratory  

proceedings.                                                                                                                                                            



               14             (...continued)  



                                                                                                                                                                  

the  incidental  right  of  the  [government]  agency  to  be  free  from  unreasonable  

                                                                                                                                                                                

interference." (quoting MacEwan v. Holm, 359 P.2d 413, 421-22 (Or. 1961) (en banc)));  

                                                                                                                                                                 

ch. 200,  1, SLA 1990 ("[P]ublic access to government information is a fundamental  

                                                                                                                                                                                          

right that operates to check and balance the actions of elected and appointed officials and  

                                                                                                      

to maintain citizen control of government."); see also Gwich'in Steering Committee v.  

                                                                                                                                                                                             

Office of the Governor, 10 P.3d 572, 578 (Alaska 2000) ("The right of citizen access to  

                                                                                                                                                                                     

public records has been characterized as a 'fundamental right.' " (citing these same  

sources)).  



               15             AS 09.60.010(c).  

                                       



               16             State v. Jacob (Jacob II), 214 P.3d 353, 360-61 (Alaska 2009).  

                                                                                                                                                            



               17             Id.  at  356;  Jacob  v.  State,  Dep't  of  Health  &  Soc.  Servs.,  Office  of  

                                                                                                                                                                                            

                                                                                                                                                                   (continued...)  



                                                                                             -9-                                                                                      7291
  


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

                                                                                                                                                                                           18  

judgment acknowledging OCS's failure to comply with the statutory requirement.                                                                                                                   We  



 also observed that "notice of proceedings and a meaningful right to be heard are essential                                                                                           



 to due process" but did not address this issue further because "the Jacobs never sought                                                                                                  

                                                                                                                                           19   On remand, the superior  

 a declaration specifically regarding their due process rights."                                                                                                                      



 court  issued  a  declaratory  judgment  and  awarded  the  Jacobs  full  fees  under  

                                                                                                                                                                                         

 AS 09.60.010(c)(1), with an alternative award of enhanced fees under Rule 82.20                                                                                                                We  

                                                                                                                                                                                                



 affirmed the prevailing party determination but reversed the award of full fees under  

                                                                                                                                                                                           

 AS 09.60.010(c)(1).21   We held that although they were the prevailing party, the Jacobs  

                                                                                                                                                                                          



had not prevailed in asserting a constitutional right "because they did not make a due  

                                                                                                                                                                                               

process claim in their complaint."22                                                      We therefore vacated the portion of the order  

                                                                                                                                                                                            



 granting full fees, but we affirmed the alternative award of enhanced Rule 82 fees as  

                                                                                                                                                                                                    

within the superior court's discretion.23  

                                                                



                               In  short,  State v.  Jacob  held  that "asserting" a constitutional right for  

                                                                                                                                                                                                 



purposes of AS 09.60.010(c) means making a claim on the basis of that right in a  

                                                                                                                                                                                                      



                17              (...continued)
  



                                                                                                                                                          

 Children's Servs. (Jacob I), 177 P.3d 1181, 1184 (Alaska 2008).
  



                18             Jacob  I,   177  P.3d  at   1186.  



                19             Id .  at   1185.  



                20             Jacob  II,  214  P.3d  at  357-58.  



                21             Id.  at  360-61.  



                22             Id.  at  360.   "Where  no  party  has  properly  raised  a  constitutional  claim,  an  



 award  of  fees  under  AS  09.60.010(c)  is  not  appropriate."   Id.  at  360-61.  



                23             Id.  at  362-63.  



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

                                                                                       24  

complaint   or   other   claim   for   relief.                                                Like   the   Jacobs,   KMXT   did   not   raise   a  



constitutional claim in its complaint, which cited no provisions of either the state or                                                                                                        



 federal constitutions and no court opinions analyzing a constitutional provision. Rather,                                                                                          



KMXT asserted                          a   statutory   right   seeking   injunctive   relief   under   the   Alaska   Public  

                                                                                                                                          25      The first time KMXT  

Records Act, and it prevailed entirely on statutory grounds.                                                                                                                       



asserted that its claim was constitutional in nature was in its motion for attorney's fees.  

                                                                                                                                                                                                      



Because KMXT's Public Records Act claim was statutory and because KMXT did not  

                                                                                                                                                                                             



raise a constitutional claim in its complaint, we conclude that KMXT - although it was  

                                                                                                                                                                                          



the prevailing party - did not prevail in asserting a constitutional right. It was therefore  

                                                                                                                                                                                



legal error to award KMXT full attorney's fees under AS 09.60.010(c)(1).  

                                                                                                                                   



                               The City asks us to reverse the award of full attorney's fees and to require  

                                                                                                                                                                                    



the City to pay only 20% of KMXT's reasonable attorney's fees under Rule 82(b)(2).  

                                                                                                                                                                                                      



               24             Id. at 360-61;                  cf. Krone v. State, Dep't of Health & Soc. Servs.                                                              , 222 P.3d   



250,   251-52,   258   (Alaska   2009)   (affirming   award   of   full   attorney's   fees   under  

AS 09.60.010(c) where plaintiffs prevailed on claim that DHSS violated their state and                                                                                                      

 federal due process rights);                                  Southeast Alaska Conservation Council v. State                                                                , 211 P.3d     

 1146,  1147    (Alaska    2009)    (awarding    full    attorney's    fees    on    appeal    under    AS  

09.60.010(c) where appellants prevailed in challenging unconstitutional dedications of                                                                                                          

revenue).  



               25              Cf. All. of Concerned Taxpayers, Inc. v. Kenai Peninsula Borough, 273  

                                                                                                                                                                                           

P.3d 1128, 1138-39 (Alaska 2012) (reversing  the determination that plaintiffs who  

                                                                                                                                                                                          

unsuccessfully sought toenforceaballot initiative wereconstitutional claimants and thus  

                                                                                                                                                                                           

protected from an adverse attorney's fee award by AS 09.60.010(c)(2) because the right  

                                                                                                                                                                                          

at issue was "statutory rather than constitutional . . . even though an analysis of the  

                                                                                                                                                                                             

limitations  [of  that  right]  necessitates  an  analysis  of  constitutional  case  law.").                                                                                                  In  

                                                                                                                                                                                              

Alliance of Concerned Taxpayers the plaintiffs "ask[ed] this court to conclude that '[a]ll  

                                                                                                                                                                                         

municipal initiative cases should be treated as . . . arising under the Constitution of  

                                                                                                                                                                                               

Alaska,' " but we declined to do so. Id. at 1139 (second and third alterations in original).  

                                                                                                                                                                                                      

KMXT is effectively asking the same for all Public Records Act cases, and we decline  

                                                                                                                                                                                    

that invitation as well.  

                                        



                                                                                              -11-                                                                                       7291
  


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

But KMXT sought an alternative enhanced attorney's fee award under Rule 82(b)(3) and                                                                              



                                                                                                                                     26  

maintains on appeal that full fees are available under that provision.                                                                             

                                                                                                                                           We "ordinarily  



                                                                                                                                                                     

ha[ve] broad authority to affirm a trial court's ruling on any legal theory established in  



                                                                                                                                                            

the appellate record," but this authority does not extend "to new theories that would  



                                                                                                                                                                     27  

                                                                                                                                                                          

normally be resolved by discretionary powers traditionally reserved for trial courts." 



 "[The] trial court has broad discretion to award Rule 82 attorney's fees in amounts  

                                                                                                                                                        



 exceeding those prescribed by the schedule of the rule, so long as the court specifies in  

                                                                                                                                                                     

the record its reasons for departing from the schedule."28   Because the superior court did  

                                                                                                                                                                   



not specify any reasons for a variation in this case, we cannot uphold the award of full  

                                                                                                                                                                  



 attorney's fees on the alternative basis of Rule 82, and we therefore reverse the superior  

                                                                                                                                                         



 court's attorney's fee award.   Because variation of attorney's fees is a discretionary  

                                                                                                                                               



power reserved to the superior court, we remand for the superior  court to craft an  

                                                                                                                                                                    



 appropriate award of attorney's fees pursuant to Rule 82.  On remand, any deviation  

                                                                                                                                                      



 from the standard fee schedule must be accompanied by an explanation of the factors  

                                                                                                                                                           



justifying such a deviation.  

                                  



             B.           Rule 82 Does Not Authorize Awarding Sales Tax On Attorney's Fees.  

                                                                                                                                                               



                          The City argues that the superior court erred in including municipal sales  

                                                                                                                                                               



tax in the award of attorney's fees to KMXT. We agree. In Long v. Arnold, we held that  

                                                                                                                                                                  



             26           Rule82(b)(3)allows                      thesuperior court to varyan                           attorney's feeaward from                



the   default   amount   specified   by   subsection   (b)(2)   if,   upon   consideration   of   listed  

 equitable factors, the court determines that such a variation is warranted.                                             



             27            Vaska v. State, 135 P.3d 1011, 1019 (Alaska 2006).  

                                                                                                                   



             28           Alaskasland.com, LLC v. Cross , 357 P.3d 805, 826 (quoting Johnson v.  

                                                                                                                                                                     

Johnson, 239 P.3d 393, 400 (Alaska 2010)).  

                                                                         



                                                                                -12-                                                                           7291
  


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

                                                                                                                                                      29  

 a Rule 82             award may               not include municipal sales tax                                  on   attorney's fees.                        It was   



                                                                                                                          30  

therefore legal error to include sales tax in KMXT's fee award,                                                                                                 

                                                                                                                               and the superior court  



                                                                                                                                

 on remand must exclude municipal sales tax from its revised fee award.  



                                                                                                                                                                 

              C.	          On Remand, The Superior Court's Rule 82 Award Must Exclude Fees  

                                                                                                                                                    

                          Incurred For Work That Is Duplicative, Unnecessary, Or Frivolous.  



                                                                                                                                                           

                          Finally, the City argues that the superior court erred in awarding KMXT  



                                                                                                                                                      

 attorney's fees that not necessarily were incurred.  Rule 82 provides that the prevailing  



                                                                                                                                                            

party in a case like this - where the case was resolved without trial and without a money  



                                                                                                                                                    

judgment - is entitled to "20 percent of its actual attorney's fees which were necessarily  



                     31  

 incurred."                                                                                                                                                            

                           "[T]o the extent that work performed is duplicative and unnecessary, it  



                                                                                                                                                         32  

                                                                                                                                                 

 should not be considered in determining a proper award under Civil Rule 82." 



                                                                                                                                                                           

                           The attorney's fees the City objects to fall into two general categories:  



                                                                                                                                                                

 (1) fees incurred in relation to KMXT's December 30, 2015 motion for an order to show  



                                                                                                                                                                    

 cause, which the City contends was frivolous; and (2) fees incurred after December 31,  



                                                                                                                                                                     

2015,when the City contends KMXT's claims were mooted by the City's release of all  



             29            386   P.3d 1217,                 1223-24   (Alaska 2016).                            Although   Long   was decided   



 several months after the parties' filings on the motion for attorney's fees (specifically,                       

 on December 16, 2016), it was decided nine days                                                    before  the superior court issued its                            

 attorney's fee award and                         Long  was therefore governing law at the time.                                   



             30           KMXT correctly notes that the City raises this argument for the first time  

                                                                                                                                                                 

 on appeal and that the issue should be considered waived.  However, because we have  

                                                                                                                                                                 

 already concluded that the fee award must be reversed and remanded for the reasons  

                                                                                                                                                           

 explained in Part IV.A above, it would make no difference if we considered the issue  

                                                                                                                                                                

waived: either way, the superior court's revised fee award on remand must comply with  

                                                                                                                                                                 

 our holding in Long and exclude sales tax.  

                                                                             



             31           Alaska R. Civ. P. 82(b)(2) (emphasis added).  

                                                                                                     



             32            Tenala, Ltd. v. Fowler, 993 P.2d 447, 452 (Alaska 1999) (quoting Alaska  

                                                                                                                                                             

State Fed'n of Labor v. State, Dep't of Labor, 713 P.2d 1208, 1212 (Alaska 1986)).  

                                                                                                                                                      



                                                                                 -13-	                                                                          7291
  


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

requested records.  The City raised essentially the same objections before the superior  



court but the court did not address them, instead awarding KMXT the full amount of fees  

                                                                                                                        



it requested under AS 09.60.010(c)(1). On remand, the superior court should address the  

                                                                                                                          



City's  objections  and  parse  KMXT's  requested  fees  to  determine  which  fees  were  

                                                                                                                      



necessarily and reasonably incurred and which were not.  To the extent the court finds  

                                                                                                                       



that any legal work performed on KMXT's behalf was duplicative, unnecessary, or not  

                                                                                                                         



reasonably  related  to  the  litigation,  fees  incurred  in  relation  to  that  work  must  be  

                                                                                                                          

excluded from KMXT's fee award.33  

                                          



V.        CONCLUSION  



                   WeREVERSEthesuperior court's attorney'sfeeaward and REMAND for  

                                                                                                                          



an award of attorney's fees under Rule 82 consistent with this opinion.  

                                                                                           



          33       See   id.   (vacating   in   part   an   attorney's   fee   award  and   remanding   for  



consideration   of   whether   specific   billing   entries   were   "reasonably   related   to   the  

litigation").  



                                                            -14-                                                      7291
  

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