| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Lance Pruitt v. State of Alaska, Division of Elections, and Lt. Gov. Kevin Meyer and Director Gail Fenumiai, in their Official Capacities and Elizabeth Hodges Snyder, Intervenor (3/24/2023) sp-7644
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
LANCE PRUITT, )
) Supreme Court No. S-18191
Appellant, )
) Superior Court No. 3AN-20-09661 CI
v. )
) O P I N I O N
STATE OF ALASKA, OFFICE OF LT. )
GOVERNOR, and KEVIN MEYER, in ) No. 7644 - March 24, 2023
an official capacity, DIVISION OF )
ELECTIONS, and GAIL FENUMIAI, in )
an official capacity, )
)
Appellees, )
)
ELIZABETH A. HODGES SNYDER, )
)
Intervenor-Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Josie Garton, Judge.
Appearances: Stacey C. Stone, Holmes Weddle & Barcott,
P.C., Anchorage, for Appellant. Holly C. Wells, Jennifer C.
Alexander, and Zoe A. Danner, Birch Horton Bittner &
Cherot, Anchorage, for Intervenor-Appellee. Notice of
nonparticipation filed by Laura Fox, Assistant Attorney
General, Anchorage, and Treg R. Taylor, Attorney General,
Juneau, for Appellees.
Before: Winfree, Chief Justice, Maassen, Carney,
Borghesan, and Henderson, Justices.
----------------------- Page 2-----------------------
CARNEY, Justice.
I. INTRODUCTION
After narrowly losing an election a candidate brought an election contest
alleging that the Division of Elections had behaved improperly and allowed some voters
to cast ballots without meeting constitutional and statutory residency requirements. The
superior court affirmed the Division's certification of the election in favor of the
opposing candidate and dismissed his suit.
The winning candidate moved for attorney's fees and costs, alleging that
certain claims made in the election contest were frivolous or in bad faith. The superior
court agreed and awarded the winning candidate full attorney's fees and costs in
connection with those claims. The losing candidate appeals, claiming protection from
an adverse attorney's fees award as a constitutional claimant per AS 09.60.010, and
arguing that the superior court failed to follow proper procedure for imposing fees and
costs as sanctions.
We conclude that the unsuccessful candidate's constitutional claims were
not frivolous or in bad faith. But - to the extent the superior court's award of attorney's
fees and costs was intended as a sanction for violating court rules - the unsuccessful
candidate is not exempt from the imposition of such sanctions after notice and an
opportunity to be heard. We therefore reverse the award of attorney's fees and costs and
remand for further proceedings addressing whether sanctions could be awarded for
violations of court rules.
II. FACTS AND PROCEEDINGS
A. Election Contest
Elizabeth Snyder narrowly defeated incumbent Lance Pruitt in the
November 2020 general election in House District 27. After the results were confirmed
-2- 7644
----------------------- Page 3-----------------------
1
in a recount, Pruitt brought an election contest under AS 15.20.540 and 15.20.550. He
alleged that the Division had failed to fulfill its responsibility to ensure a fair election in
a number of ways, including by permitting at least one individual to vote twice and
allowing individuals to vote who did not meet constitutional and statutory residency
requirements. Snyder intervened in Pruitt's action against the Division.
Trial was scheduled for December 22 and 23, 2020. On December 17 Pruitt
withdrew the double-voting allegation. On the same day Pruitt requested that the court
take judicial notice of certain residency-related documents regarding 21 voters he alleged
2
voted in House District 27 but were not residents during the relevant time. On
December 18 Snyder served interrogatories a nd requests f or production regarding the
motion for judicial notice and Pruitt's underlying allegation. On December 21 - the day
before trial - Pruitt objected to most of Snyder's discovery requests on the basis of
attorney-client privilege and attorney work product, and he refused to provide any
discovery beyond that previously provided.
Snyder opposed the motion for judicial notice. She argued first that judicial
notice could not be taken of disputed issues. Specifically, she argued that home
ownership records were not indisputable proof of residency because they did not reflect
3 - for example, they would not indicate whether the voter had
a voter's residency intent
1 See Pruitt v. State, Off. of Lieutenant Governor (Pruitt I), 498 P.3d 591
(Alaska 2021) for a detailed factual b ackground. Here we describe only those details
relevant to resolving the attorney's fee dispute.
2 The documents were certified copies of residence records and property
deeds obtained from the Municipality of Anchorage, the Matanuska-Susitna Borough,
and the Recorder's Office at the Department of Public Resources.
3 See AS 15.05.020 (explaining that absence from a place will not defeat
residency so long as person has intention to return).
-3- 7644
----------------------- Page 4-----------------------
only temporarily left that district. She argued that a voter's registration record provided
the presumptive place of residence for voter residency purposes. Snyder argued that
voter residence therefore "is not a fact appropriate for judicial notice," but is a legal
conclusion to be drawn from factual evidence. Second, Snyder argued that Pruitt's
allegations were "factually incorrect or reasonably disputed." Of the 21 people that
Pruitt alleged had voted improperly, Snyder claimed that 13 had not actually voted in the
district, 2 had moved within the same district and thus voted properly; and whether the
remaining 6 had lost their voter residency was unclear. Snyder also urged the court not
to consider Pruitt's residency challenge, asserting that it should have been raised during
the voting or recount process and that considering it now would disrupt the election
result.
On the same day Snyder filed her opposition, Pruitt withdrew the voting
allegations against all but the six voters whose votes had been counted but whose voter
residency was unclear.
Snyder moved to dismiss Pruitt's suit pursuant to Alaska Civil Rule
12(b)(6) for failure to state a claim; the superior court granted her motion on December
22. The court had dismissed the motion for judicial notice on December 21 given that
"[v]oter residency is not a fact subject to judicial notice." On December 23, after it
dismissed the election contest, it also dismissed as moot Pruitt's updated motion for
judicial notice that had withdrawn some of the voters. The superior court issued a final
judgment declaring Snyder the winner, and Pruitt appealed the dismissal of his claim that
the Division had committed malconduct. We concluded the superior court had erred by
dismissing the case on the ground that Pruitt had failed to state a claim, but we
-4- 7644
----------------------- Page 5-----------------------
4
nonetheless affirmed dismissal because Pruitt's claims could not succeed on the merits.
We also affirmed the superior court's judgment pronouncing Snyder the winner.5
B. Motion For Attorney's Fees
Snyder moved for attorney's fees and costs as the prevailing party. She
sought enhanced fees as provided by Alaska Civil Rule 82(b)(3) only for work
addressing the "frivolous pleadings or claims" raised by Pruitt that she alleged were "at
best, unreasonable, and at worst, brought in bad faith." She sought "all or substantially
all" attorney's fees incurred responding to Pruitt's double-voting allegation, responding
to his motion for judicial notice, and preparing discovery requests related to the
residency allegations. Snyder stated that her actual reasonable attorney's fees were
$122,548.67 and she requested $20,782.50. Snyder calculated that the requested amount
was less than 17% of the total fees incurred in the action, rather than the full 20% that
she could have sought by statute.6
Pruitt opposed Snyder's motion for attorney's fees and costs, asserting he
was a constitutional claimant protected by AS 09.60.010 from an adverse fee award.7
4 Pruitt I, 498 P.3d at 595.
5 Id. at 595, 608.
6 See Alaska R. Civ. P. 82(b)(2).
7 AS 09.60.010(c)(2) provides that
In a civil action or appeal concerning the establishment,
protection, or enforcement of a right under the United States
Constitution or the Constitution of the State of Alaska, the
court . . . may not order a claimant to pay the attorney fees of
the opposing party devoted to claims concerning
constitutional rights if the claimant . . . did not prevail in
asserting the right, the action or appeal asserting the right was
(continued...)
-5- 7644
----------------------- Page 6-----------------------
Pruitt contended that because he made a nonfrivolous constitutional claim and did not
have an economic incentive to bring the election contest, he met the statute's
requirements to be exempt from an award of attorney's fees.
Snyder disputed that Pruitt met the requirements for a constitutional
claimant. She claimed that the action was frivolous, pointing to Pruitt's failure to
provide evidence that the Division's actions prevented voters from voting, his filing the
complaint "with total disregard" for the legal grounds required for an election contest,
and the superior court's ultimate dismissal of the case for failure to state a claim. Snyder
also claimed that Pruitt had an economic incentive to bring his action because, as the
incumbent, he stood to lose his salary, per diem, and reimbursement of business
expenses.
The superior court partially granted Snyder's motion for attorney's fees and
costs. The court recognized that "the strong public interest in fair and honest elections
justifies according public interest litigant status to officeholders or candidates pursuing
8 It therefore concluded that Pruitt "may not be ordered
a claim of error in an election."
to pay attorney's fees unless the action was frivolous." Relying on Alaska Building, Inc.
(...continued)
not frivolous, and the claimant did not have sufficient
economic incentive to bring the action or appeal regardless of
the constitutional claims involved.
8 See alsoMun. ofAnchorage v. Citizensfor Representative Governance, 880
P.2d 1058, 1062-63 (Alaska 1994) (citing strong public interest in fair and honest
elections when concluding that normal compensation of elected office is not sufficient
economic incentive to defeat political candidate's status as public interest litigant). The
superior court recognized that amendments to AS 09.60.010 abrogated the common law
public interest exception to Rule 82 in 2003, but the economic incentive prong and case
law interpreting it remained applicable. See Alaska Conservation Found. v. Pebble Ltd.
P'ship, 350 P.3d 273, 280-81 (Alaska 2015).
-6- 7644
----------------------- Page 7-----------------------
9
v. Legislative Affairs Agency , the court noted that claims are not frivolous merely
because they have "little reasonable likelihood of success" or seek to modify or establish
new law. Rather, a claim can only be considered frivolous "where a party exhibits an
improper or abusive purpose, or acts in bad faith." And the court recognized that it must
be cautious when finding frivolousness to distinguish an "abuse of the judicial process"
10
from "creative advocacy."
The court focused on the three grounds upon which Snyder based her
attorney's fees request. After apparently agreeing with Pruitt that "generally . . . his
lawsuit was non-frivolous," the court noted that Pruitt "d[id] not address [Snyder's]
claim that he failed to respond adequately to her discovery requests." It then considered
the expedited schedule of election contests and the important public interests at stake and
found that, by waiting until the day before trial to respond to Snyder's discovery requests
and failing to argue that he actually "met his discovery obligations or acted in good
faith," Pruitt had acted in bad faith. The court concluded that by acting in bad faith,
Pruitt had brought a frivolous action and was not entitled to protection from attorney's
11 The court awarded Snyder
fees as a constitutional claimant under AS 09.60.010(c).
"actual attorney's fees for preparation of her interrogatories and requests for production."
The superior court also found that Pruitt's "argument that the court should
take judicial notice of voter[s]' non-residency was unsupported by existing law or any
argument, however creative or unlikely to succeed, that the law should be modified." It
9 403 P.3d 1132 (Alaska 2017).
10 Citing id. at 1139.
11 The court, citing Alaska Building, Inc. v. Legis. Affs. Agency , 403 P.3d
1132, 1147 (Alaska 2017), concluded that "where a party . . . acts in bad faith, a claim
may be deemed frivolous."
-7- 7644
----------------------- Page 8-----------------------
observed that Pruitt had not cited any law governing voter residency or why it should be
modified, or explained how the court could use property transaction records as a basis
for taking judicial notice of voter residency. The court found that Pruitt's argument was
not "creative advocacy" but rather "an abuse of the judicial process" and, consequently,
frivolous. It awarded Snyder "fees for her legal and factual research and drafting efforts
to oppose and respond to [Pruitt's] motions for judicial notice and for review of the
deeds, foreclosure records, and tax records of voters."
The court denied Snyder's request for fees related to responding to Pruitt's
double-voting allegation. It found that Snyder had not established that the claim
amounted to an abuse of the judicial process.
Pruitt moved for reconsideration. He argued that because the action itself
was not frivolous, the court could not award fees under AS 09.06.010(c). Alternatively,
Pruitt argued, even if the court could separately consider claims made within the same
suit to determine which were protected as constitutional claims, it erred by finding he had
failed to respond to discovery or Snyder's allegations of bad faith in her motion for
attorney's fees. Pruitt contended he had responded by asserting that he was a
constitutional claimant who acted in good faith. Additionally, Pruitt noted that Snyder
never filed a motion to compel discovery, so to the extent the court's award of fees and
costs could be considered discovery "sanctions," they were inappropriate.
After granting reconsideration, the superior court issued a final judgment
granting Snyder partial attorney's fees of $17,465.00 and actual costs of $3,751.31.
Pruitt appeals. He argues that the superior court erred by awarding fees and
costs to Snyder because he is a constitutional claimant and, that if the court imposed the
fees and costs as sanctions, the court erred by failing to follow proper procedures. We
agree that Snyder was not entitled to Rule 82 attorney's fees and costs for work opposing
Pruitt's nonfrivolous constitutional claim; we therefore vacate the attorney's fees award.
-8- 7644
----------------------- Page 9-----------------------
And we remand for appropriate application of the sanctions rules and procedures.
III. STANDARDS OF REVIEW
"Interpretation of the constitutional litigant exception to attorney's fees is
12
a question of law, which we review using our independent judgment." "We interpret
statutes ' according to reason, practicality, and common sense, taking into account the
plain meaning and purpose of the law as well as the intent of the drafters.' "13
IV. DISCUSSION
A. Alaska Statute 09.60.010 Protects Constitutional Claimants Asserting
Nonfrivolous Constitutional Claims From Rule 82 Attorney's Fees
Awards.
Rule 82 generally governs the award of attorney's fees, entitling prevailing
14
parties to a certain percentage of their fees "[e]xcept as otherwise provided by law."
Rule 82(b)(3) allows the court to vary an award based on certain factors including
15
"vexatious or bad faith conduct" and "other equitable factors deemed relevant."
Vexatious or bad faith conduct can be determined directly or through inference and can
16
serve as a basis for a court to award full attorney's fees.
Alaska Statute 09.60.010 establishes certain exceptions to Rule 82. In
12 Manning v. State, Dep't of Fish & Game (Manning III), 420 P.3d 1270,
1278 (Alaska 2018) (citing Alaska Conservation Found. v. Pebble Ltd. P'ship, 350 P.3d
273, 279 (Alaska 2015)).
13 Oakly Enters., LLC v. NPI, LLC, 354 P.3d 1073, 1078 (Alaska 2015)
(quoting Native Vill. of Elim v. State, 990 P.2d 1, 5 (Alaska 1999)).
14 Alaska R. Civ. P. 82(a).
15 Alaska R. Civ. P. 82(b)(3).
16 Johnson v. Johnson, 239 P.3d 393, 400-01 (Alaska 2010) (explaining that
claim might be "legally or factually so deficient as to reasonably permit an inference of
vexatious or bad faith litigation conduct").
-9- 7644
----------------------- Page 10-----------------------
particular, AS 09.60.010(c) provides that
In a civil action or appeal concerning the establishment,
protection, or enforcement of a right under the United States
Constitution or the Constitution of the State of Alaska, the
court
. . . .
(2) may not order a claimant to pay the attorney fees of the
opposing party devoted to claims concerning constitutional
rights if the claimant as plaintiff, counterclaimant, cross
claimant, or third-party plaintiff in the action or appeal did
not prevail in asserting the right, the action or appeal
asserting the right was not frivolous, and the claimant did not
have sufficient economic incentive to bring the action or
appeal regardless of the constitutional claims involved.
Thus, a party who has raised nonfrivolous constitutional claims cannot be
required to pay the attorney's fees and costs of opposing those constitutional claims.
That party, however, may be ordered to pay attorney's fees and costs for a prevailing
17
opponent's work on other, nonconstitutional claims in the same case.
To determine if a claim is frivolous, the court must apply an "objective
standard of reasonableness," taking care to avoid stifling "creative advocacy" or the
pursuit of novel legal theories.18 "In most cases, . . . a claim should not be considered
frivolous unless the litigant has 'abused the judicial process' or 'exhibited an improper
or abusive purpose.' "19
17 See Manning v. State, Dep't of Fish & Game (Manning II), 355 P.3d 530,
539-40 (Alaska 2015).
18 Manning III, 420 P.3d 1270, 1283-84 (Alaska 2018) (citing Alaska Bldg.,
Inc. v. Legis. Affs. Agency , 403 P.3d 1132, 1136-39 (Alaska 2017)).
19 Id. (quoting Alaska Bldg., Inc., 403 P.3d 1137) (explaining frivolousness
analysis is akin to that for imposing Rule 11 sanctions).
-10- 7644
----------------------- Page 11-----------------------
Pruitt argues that he is protected as a constitutional claimant based on the
overall purpose of his "action or appeal." But AS 09.60.010(c) "requires individually
determining whether each claim in [the plaintiff's] initial complaint and proposed
amended complaint" was a constitutional claim and if it "was frivolous[,] and awarding
fees only for the work that was attributable to any frivolous claim(s)."20 The superior
court correctly determined that it should analyze each of Pruitt's claims separately to
establish which were constitutional claims and which, if any, were frivolous.
To determine whether a claim is constitutional, we have explained that one
must look not at the "source of the rule of law," but instead at the "source of the right
21
asserted." For instance, while voter residency requirements are defined by statute, the
right to vote itself is a constitutional right.22 Thus, in a case where voters asserted that
a voter residency statute deprived them of the right to vote, we determined that the claims
were properly classified as constitutional claims.23
The superior court determined Pruitt's claim regarding voter residency was
a constitutional claim. We agree because the source of his claim that only those eligible
to vote should be permitted to cast a ballot i s i n a right guaranteed by a constitutional
provision. Pruitt claimed that AS 15.05.010(3), a statute requiring voters to reside in the
district for at least 30 days before the election, had been violated. That statutory
requirement echoes article 5, section 1 of the Alaska Constitution: "A voter shall have
20 Id. at 1283 (outlining claim-by-claim frivolousness analysis); see also Lake
& Peninsula Borough Assembly v. Oberlatz, 329 P.3d 214, 227 (Alaska 2014) (applying
claim-by-claim analysis to determine which claims were constitutional).
21 Oberlatz, 329 P.3d at 226.
22 Id.
23 Id. at 227.
-11- 7644
----------------------- Page 12-----------------------
been, immediately preceding the election, a thirty day resident of the election district in
which he seeks to vote . . . ." The superior court correctly found that Pruitt's claim seeks
24
to enforce a constitutional requirement and is a constitutional claim.
But it was error to characterize Pruitt's motion practice and response to
discovery related to the voter residency claim as "claims" in themselves. The statute
requires a court to determine whether a claim is constitutional, expressly referring to "the
attorney fees of the opposing party devoted to claims concerning constitutional rights."25
The court's next step is to determine whether the claim is frivolous. If the constitutional
claim is not frivolous, the constitutional claimant is protected from an adverse award of
attorney's fees. Once a party has raised a nonfrivolous constitutional claim, Rule 82
attorney's fees can be awarded only for "work defending solely against non-
constitutional claims," not for "work on procedural issues involving the merits of a
26 Pruitt's motion practice and response to discovery were in
constitutional claim."
furtherance of his constitutional claim that nonresidents had voted in the election district.
Because that claim was based on a right whose source is in the constitution and is not a
frivolous claim, AS 09.60.010(c) prohibits the award of attorney's fees under Rule 82
24 See AS 09.60.010(c) (defining a constitutional claim as "concerning the
establishment, protection, or enforcement of a right under the United States Constitution
or the Constitution of the State of Alaska"); see also Oberlatz, 329 P.3d at 226
(explaining AS 09.60.010(c)'s language).
25 AS 09.60.010(c)(2).
26 Manning II, 355 P.3d 530, 540 (Alaska 2015). As a further measure of
protection afforded to constitutional claims, the party asserting such a claim benefits
from a presumption that the opposing party's procedural work was related to the
constitutional claims. To overcome the presumption, the party seeking the attorney's
fees award must provide "sufficiently detailed documentation" identifying what work
was done for constitutional and nonconstitutional claims in order to enable a superior
court to make correct determinations of the allowable awards. Id.
-12- 7644
----------------------- Page 13-----------------------
to Snyder for fees and costs incurred in relation to that claim.27
B. Sanctions May Be Imposed On Constitutional Claimants.
Yet a constitutional claimant is not immune from the rules that govern
proceedings. A claimant that may have otherwise been protected from Rule 82
attorney's fees by AS 09.60.010(c) can be sanctioned by the court when the claimant has
engaged in sanctionable conduct in litigation; the court may order the party to pay
attorney's fees and costs as sanctions pursuant to civil rules. The purpose behind
AS 09.60.010(c) is to prevent "chilling" constitutional litigation, but the requirement that
the claim be "not frivolous" is intended to protect against situations where a "litigant has
28
'abused the judicial process' or 'exhibited an improper or abusive purpose.' " When
the court determines that a litigant, including a constitutional claimant, "has 'abused the
judicial process' or 'exhibited an improper or abusive purpose,' " the court is authorized
27 See Alaska Conservation Found. v. Pebble Ltd. P'ship, 350 P.3d 273, 280-
81 (Alaska 2015) (holding that AS 09.60.010 controls attorney's fees for constitutional
claims); Meyer v. Stand for Salmon, 450 P.3d 689, 693 (Alaska 2019) (Winfree, J.,
concurring) ("[P]revailing defendants should not be entitled to an award of non-statutory
fees against claimants for any work devoted in any reasonably connected way to
claimants' constitutional claims." (Emphasis added)); see also In re Vernon H., 332 P.3d
565, 576 (Alaska 2014) ("[A]s a general proposition[,] . . . '[i]f a specific statutory
scheme for attorney's fees exists, Civil Rule 82 does not apply' because fees would thus
be 'otherwise provided by law' within the meaning of Civil Rule 82(a).") (quoting
Enders v. Parker, 66 P.3d 11, 17 (Alaska 2003)).
28 Manning III, 420 P.3d at 1284 (internal citation omitted); see also Alaska
Bldg., Inc. v. Legis. Affs. Agency, 403 P.3d 1132, 1138 (Alaska 2017) (explaining that
Rule 11 sanctions are "designed to deter parties from abusing judicial resources, not from
filing [claims]" (alteration in original)). Rule 82 in part seeks to effectuate similar
purposes. See Keenan v. Meyer, 424 P.3d 351, 362-63 (Alaska 2018) ("We have
explained that full fee awards against bad faith litigants are unlikely to deter good faith
claims, and an enhanced award for bad faith conduct helps compensate the prevailing
party for effort and expense that may have been avoidable had the other party acted in
good faith.").
-13- 7644
----------------------- Page 14-----------------------
29
to impose sanctions.
Court proceedings are governed by rules that apply to all litigants and give
direction to judicial officers. Alaska Civil Rule 11 requires those making representations
to the court to meet certain standards and provides:
By presenting to the court a . . . motion, . . . an attorney . . .
certifies that to the best of the person's knowledge,
information, and belief, formed after an inquiry reasonable
under the circumstances:
(1) it is not being presented for any improper purpose, such
as to harass, cause unnecessary delay, or needlessly increase
the cost of litigation;
(2) the claims, defenses, and other legal contentions are
warranted by existing law or by a nonfrivolous argument for
extending, modifying, or reversing existing law or for
establishing new law; [and]
(3) the factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary support
after a reasonable opportunity for further investigation or
discovery . . . .[30]
Alaska Civil Rule 95 permits the court to impose sanctions for violation of
Rule 11. A court may "withhold or assess costs or attorney's fees" against "offending
attorneys or parties," "after providing reasonable notice and an opportunity to be
29 Nothing in AS 09.60.010 is intended to exempt litigants from the rules and
reasonable limits of the judicial process. Cf. Thomas v. Croft, 614 P.2d 795, 798-99
(Alaska 1980) (affirming equitable power of superior court to award prevailing party
attorney's fees against co-prevailing state party, even in absence of court rule or statute
authorizing such award, because lawsuit would not have happened but for state
malconduct in elections).
30 Alaska R. Civ. P. 11(b).
-14- 7644
----------------------- Page 15-----------------------
31
heard." The rule also allows for a fine, not to exceed $50,000, against an attorney
32
violating the rules.
Alaska Civil Rule 37 authorizes sanctions for failure to cooperate in
discovery. It provides that a court may sanction "[a] party that without substantial
justification fails to disclose information required by [the discovery rules],"33 but only
"on motion and after affording an opportunity to be heard."34
One of the enumerated
sanctions is attorney's fees.35 Rule 37 also provides that a court can require a party or
attorney to pay "the reasonable expenses, including attorney's fees," caused by
"unreasonable, groundless, abusive, or obstructionist conduct during the course of
discovery," without requiring a motion but still requiring "opportunity for hearing."36
The superior court's order granting attorney's fees implies it determined
that Pruitt's motion and conduct in connection with discovery merited sanctions for
failure to comply with Rule 11's requirements for representations to the court and Rule
37's discovery obligations. The superior court granted Snyder attorney's fees and costs
for Pruitt's failure to comply with discovery (after concluding it was done in bad faith)
and for his request to take judicial notice (because it was unsupported by existing law or
argument, the court found his motion for judicial notice to be an abuse of judicial process
31 Alaska R. Civ. P. 95(a).
32 Alaska R. Civ. P. 95(b).
33 The relevant rules are Rule 26(a) (governing required disclosures) and
Rule 26(e)(1) (governing supplementation of disclosures and responses). Alaska R. Civ.
P. 37(c)(1).
34 Alaska R. Civ. P. 37(c)(1).
35 Id.
36 Alaska R. Civ. P. 37(g).
-15- 7644
----------------------- Page 16-----------------------
and therefore frivolous). To support its conclusion that he acted in bad faith, the court
noted Pruitt failed to explain how the court could use property transaction records as a
basis for taking judicial notice of voter residency and made no argument "supported by
existing law or any argument, however creative or unlikely to succeed, that the law
should be modified." The court found that Pruitt publicly accused at least 15 voters of
improperly voting in the election "without any basis." The superior court found that the
motion to take judicial notice of voter residency was "an abuse of the judicial process."
But rather than scheduling a hearing, as required by Rule 95 and Rule 11, the court
awarded Snyder Rule 82 attorney's fees for Pruitt's actions. This was error.
The superior court also found that Pruitt acted in bad faith by refusing to
respond "adequately" to Snyder's discovery requests and thus violated discovery rules.
It n oted that Pruitt had "not argue[d] that he met his discovery obligations or acted in
good faith in responding to [Snyder's] discovery requests." The court's finding that
Pruitt failed to comply with his discovery obligations is precisely the behavior that can
37 But instead of proceeding to a sanctions hearing
be sanctioned under Rule 37(c) or (g).
pursuant to Rule 37, the court instead awarded Snyder Rule 82 attorney's fees. This, too,
was error.
As Pruitt argues, the court must follow the procedures specified by the
applicable rules before it imposes sanctions.38 Chief among the requirements is an
37 We note that the superior court cited both Rule 82(b)(3)(G) and Rule 37(c)
in a footnote to its order awarding attorney's fees and cited Rule 26 in another footnote.
38 See Fox v. Grace, 435 P.3d 883, 887 n.15 (Alaska 2018) ("We also take
this opportunity to remind courts that they must follow the mandates of Alaska Civil
Rule 95 before issuing a sanctions order pursuant to Rule 11, including issuing an order
to show cause and providing for the opportunity to be heard at a hearing."); Luedtke v.
Nabors Alaska Drilling, Inc., 834 P.2d 1220, 1227-28 (Alaska 1992) (requiring superior
(continued...)
-16- 7644
----------------------- Page 17-----------------------
39
opportunity to be heard. In addition, Rule 37(c) requires a motion for sanctions. The
failure to comply with the governing rules requires us to reverse the order awarding
attorney's fees and to remand to the superior court for further proceedings if the court
40
intends to impose sanctions against Pruitt. The superior court may receive such
evidence and argument on remand as it deems appropriate.
V. CONCLUSION
We REVERSE the award of attorney's fees and costs against Pruitt and
REMAND for further proceedings consistent with this opinion.
38 (...continued)
court to clearly state reasons for imposing sanctions and to provide opportunity to contest
sanctions at a hearing).
39 See Alaska R. Civ. P. 37(c)(1) (authorizing sanctions for failure to follow
discovery rules, but requiring motion and opportunity to be heard); Alaska R. Civ. P.
37(g) (allowing sanctions for "unreasonable, groundless, abusive, or obstructionist
conduct" in discovery but requiring opportunity for hearing); Alaska R. Civ. P. 95(a)
(permitting sanctions for Rule 11 violations "after providing reasonable notice and an
opportunity to be heard").
40 See Luedtke, 834 P.2d at 1227 (Alaska 1992) (explaining we typically
remand for entry of findings after opportunity to be heard, though we may reverse where
no evidence in record supports sanctions); see also Wilson v. Mun. of Anchorage, 977
P.2d 713, 727 (Alaska 1999) (remanding for proper findings regarding imposition of
sanction against counsel, where court improperly cited Rule 82 for assessment of fees
against counsel when Rule does not provide for them).
-17- 7644
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
