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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Braun v. Denali Borough (09/12/2008) sp-6305
Notice: This opinion is subject to correction before pub
lication 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, e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| DAVID P. BRAUN, | ) |
| ) Supreme Court No. S- 12050 | |
| Appellant, | ) |
| ) Superior Court No. 4FA-04-02616 CI | |
| v. | ) |
| ) O P I N I O N | |
| DENALI BOROUGH, | ) |
| ) No. 6305 September 12, 2008 | |
| Appellee. | ) |
| ) | |
)
DAVID P. BRAUN, )
) Supreme Court No. S-12359
Appellant, )
) Superior Court No. 4FA-02-
02156 CI
v. )
)
DENALI BOROUGH, )
)
Appellee. )
)
Appeal in File No. S-12050 from the Superior
Court of the State of Alaska, Fourth Judicial
District, Fairbanks, Charles R. Pengilly,
Judge. Appeal in File No. S-12359 from the
Superior Court of the State of Alaska, Fourth
Judicial District, Fairbanks, Randy M. Olsen,
Judge.
Appearances: David P. Braun, pro se, Healy,
Appellant. James M. Gorski, Hughes Bauman
Pfiffner Gorski & Seedorf, LLC, Anchorage,
for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
FABE, Chief Justice.
I. INTRODUCTION
David Braun filed four lawsuits against the Denali
Borough, challenging the 2002 and 2004 reapportionment plans
adopted by Denali Borough voters. Two of these suits have
resulted in appeals that we have consolidated for decision.
Brauns appeals challenge three issues in the decisions
of two superior courts: (1) Judge Charles R. Pengillys grant of
summary judgment to the Denali Borough on the ground that Brauns
November 2004 lawsuit was an unsuccessful election challenge to
the 2004 vote on the Denali Borough reapportionment plan; (2)
Judge Randy M. Olsens decision that the 2004 Denali Borough
reapportionment plan was constitutional; and (3) Judge Olsens
denial of attorneys fees to Braun for his challenge to the 2002
reapportionment plan.
We conclude that Braun is entitled to attorneys fees
for his challenge to the 2002 reapportionment plan under the
catalyst theory. But because the lawsuit before Judge Pengilly
was indeed an unsuccessful election challenge, and because the
2004 Denali Borough reapportionment plan does not violate the
equal protection clauses of the Alaska Constitution or the United
States Constitution, we affirm those decisions.
II. FACTS AND PROCEEDINGS
The Denali Borough Charter, adopted in 1989, provides
for a nine-seat elected assembly and calls for reapportionment
[a]s the need arises. Assembly apportionment is governed by AS
29.20.060.120. On August 12, 2001, after the release of the 2000
census results, the Denali Borough Assembly declared itself
malapportioned. The Assembly then developed a by-district
reapportionment proposal and presented it, along with an
alternative at-large proposal submitted by a group of Borough
voters, to the public in a special election. On February 19,
2002, the voters approved the Boroughs proposed by-district
reapportionment plan and rejected the at-large proposal. The
total variance of the 2002 approved reapportionment plan was
11.9%.1
Braun and at least fifty other Denali Borough voters
submitted a petition to the Department of Community and Economic
Development requesting review of the reapportionment plan to
determine if it met the equal representation standards of
AS 29.20.060. The petition was received in the Department office
on March 26, 2002, and after a thorough[] review of the plan and
the process used to adopt it, the Commissioner determined that
the plan was constitutional and issued a written decision to that
effect on May 9, 2002.
Approximately one month later, Braun filed a complaint
with the State of Alaska Ombudsman. He charged that the 2002
reapportionment plans variance improperly exceeded 10%, that the
plan purposefully disenfranchised Healy area voters, and that the
Commissioner erred in determining that the plan was
constitutional. Beth Liebowitz, counsel for the office of the
Ombudsman, agreed with the Commissioner that the plan was
constitutional and explained her reasoning to Braun in a detailed
letter dated August 6, 2002. But two days later, Liebowitz wrote
a letter to the Department director stating that several aspects
of [the Departments] review disturbed [her] and attempted to
explain what [she] found so that [the Department] may consider
these issues in future decisions. Despite characterizing the
matter as a close case in many ways, Liebowitz could not say that
the Commissioners decision was clearly wrong and concluded that
Brauns complaints, though serious, d[id] not necessarily
establish a constitutional violation.
After Liebowitz issued her letter approving the plan,
Braun appealed the Commissioners decision to the superior court
in his first complaint.2 Then, in November 2003, the Borough
held a regularly scheduled election using the district boundaries
adopted in the 2002 reapportionment plan. Braun filed a separate
lawsuit challenging this election.3
Then, in May 2004, the parties reached a settlement.
Under its terms, Braun and the Borough agreed to submit
presumptively constitutional apportionment plans (with a
population variance of less than 10%) to the voters, who would .
. . choose an apportionment plan in the general election to be
held the following November. Braun I would be stayed pending
voter decision of assembly apportionment in accordance with these
terms and then dismissed [u]pon approval . . . of a
constitutionally acceptable apportionment plan. Judge Wood also
dismissed Braun II based on this settlement.
Braun and the Borough set about developing their
reapportionment plans. Michael Walleri, counsel for Braun,
attended an Assembly meeting and urged the Assembly to build
their plan around census blocks. He also highlighted the
importance of community representation and strongly urged the
Borough to stick to those community bases in its new
reapportionment plan. The Borough complied and drafted a
proposal reapportioning its four election districts to coincide
with the 2000 U.S. Census block boundaries. The 2004 Borough
proposal achieved a variance of 9%. The citizen-generated plan,
which was developed by Braun, featured five districts, also
following census boundaries, and at-large voting. Its variance
was 8.7%.
About one month before the election on the new
reapportionment plan, Braun filed a third suit against the
Borough, alleging that the proposal it intended to submit to
voters was unconstitutional and therefore violated the settlement
agreement.4 On November 2, 2004, the voters considered both
reapportionment plans; they ultimately rejected Brauns proposal
and adopted the Boroughs plan. On November 10, 2004, Braun filed
a fourth suit against the Borough, challenging the
constitutionality of the election and the plan.5 Shortly
thereafter, Braun and other voters petitioned the Department of
Commerce, Community and Economic Development6 to review the newly
adopted reapportionment plan for compliance with AS 29.20.060.
In early December 2004 the Borough filed a Notice of
Compliance with Settlement Agreement in Braun I based on the 2004
vote. The Borough urged the court to decide the issue of
attorneys fees and costs so that the case could be closed. Three
days later, Braun emailed the Commissioner of the Department of
Commerce, Community and Economic Development and outlined his
theory on why the Boroughs reapportionment plan was
unconstitutional. Nonetheless, in a letter dated January 10,
2005, the Commissioner upheld the adopted plan.
On February 18, 2005, the parties met with Judge Olsen
for a status conference. They agreed that the constitutionality
issues related to the 2004 reapportionment election should be
adjudicated by either Judge Savell or Judge Pengilly in Braun III
or Braun IV. Judge Olsen consequently considered Braun I
resolved as to all issues but attorneys fees. Coincidentally,
Judge Savell (of Braun III) ruled on the very same day that Judge
Olsens case (Braun I) was the appropriate forum to consider the
constitutionality of the 2004 plan.
In light of the dismissal of all issues but attorneys
fees in Braun I, Braun moved for attorneys fees in that case on
March 21, 2005. Braun argued that he was entitled to attorneys
fees under the catalyst theory and that he was a public interest
litigant. The Borough opposed the motion, contending that Braun
was not the prevailing party, that he was not a public interest
litigant, and that the fees and costs he sought were
inappropriate.
Meanwhile, Braun moved for a partial judgment and
ruling in Braun IV that the plan and the process by which it was
adopted were unconstitutional. The Borough opposed the motion,
arguing (1) that the settlement agreement precluded Braun from
filing new reapportionment cases and (2) that Braun IV was an
election contest demanding a high burden of proof that Brauns
complaint could not meet. In March 2005 Braun filed a
supplemental motion informing Judge Pengilly that Judge Olsen
would not be considering the constitutionality of the 2004
reapportionment per stipulation of the parties in Braun I, and
that Judge Olsen and the parties anticipated Judge Pengilly would
decide that issue in Braun IV.
Judge Pengilly heard oral argument on March 31, 2005.
Two weeks later, he determined that Braun IV was an election
contest in which Braun had failed to meet the high burden of
proof required; he therefore granted the Boroughs motion for
summary judgment. He also decided that his court was the wrong
forum to consider the constitutionality of the 2004
reapportionment and suggested three possible avenues to Braun for
consideration of that issue: (1) Braun could seek to enforce the
settlement agreement in [Braun I] before Judge Olsen; (2) he
could seek to have the agreement set aside on the ground that it
was unenforceable; or (3) he could file an appeal of the
Commissioners decision that the apportionment plan adopted in
2004 was constitutional.
Approximately six weeks after Judge Pengillys decision,
the parties returned to Judge Olsen for a status conference.
They informed him that Judge Pengilly had declined to rule on the
constitutionality of the 2004 plan and they requested that Judge
Olsen do so himself. As Judge Olsen recognized, the parties
agreed that if the 2004 apportionment plan was found to be
constitutional, that will be the end of all questions in this
case. Judge Olsen agreed to review the constitutionality of the
2004 plan and, with the input of the parties, developed a
schedule for submission of evidence and briefing.
Brauns counsel, Walleri, withdrew from Braun I, Braun
III, and Braun IV in early January 2006. Braun then filed two
motions requesting direction from Judge Olsen on how to proceed.
Judge Olsen responded in an order of clarification dated February
16, 2006 that the case was now solely about the constitutionality
of the 2004 reapportionment plan and applicable attorneys fees.
Judge Olsen stated that he would not entertain arguments on any
other subject.
In a brief filed about six weeks later, Braun contended
that Judge Olsen had no jurisdiction to consider the
constitutionality of the 2004 plan but nonetheless argued
alternatively that the 2004 plan was unconstitutional because it
purposefully diluted the vote of Healy area residents. The
Borough filed a brief supporting the constitutionality of the
plan on March 31, 2006, and Braun filed a reply brief reiterating
his position that the court had no jurisdiction to consider the
constitutionality of the 2004 plan.
Judge Olsen heard oral argument on May 5, 2006. He
issued a written decision on May 15 in which he agreed with Braun
that he did not have jurisdiction to consider the 2004 plan. He
concluded that Braun I remained dismissed and that the Borough
was the nominal prevailing party. He declined to award the
Borough attorneys fees because he decided that Braun was a public
interest litigant. Alternatively, Judge Olsen ruled that if he
did have jurisdiction to consider the constitutionality of the
2004 plan, the plan was constitutional and Braun I remained
dismissed.
Braun moved for reconsideration, arguing that he was
the prevailing party because his challenge to the 2002
reapportionment plan was successful and that he was entitled to
attorneys fees. Judge Olsen denied this motion. Braun filed a
second request for reconsideration, which was also denied. Judge
Olsen entered judgment in favor of the Borough on July 12, 2006.
Of the four suits Braun filed in this line of cases,
two have resulted in appeals: Braun I and Braun IV, in S-12359
and S-12050.7 In December 2006 we consolidated these cases.
III. STANDARD OF REVIEW
We review summary judgment decisions de novo, affirming
the trial courts grant of summary judgment if there are no
genuine issues of material fact and the moving party is entitled
to judgment as a matter of law.8 In reviewing a superior courts
grant of summary judgment, we draw all factual inferences . . .
in favor of the party against whom summary judgment was entered.9
We review a superior courts determination of prevailing
party status and attorneys fees for abuse of discretion.10 We
will overturn such determinations only if they are manifestly
unreasonable.11 With respect to the constitutionality of
reapportionment plans, our review is limited in scope.12 We have
explained that [t]hough we remain mindful of our obligation to
assure compliance with all constitutional guarantees, we will not
lightly interfere with the reapportionment process.13 We accord
deference to the legislature in this inquiry,14 and a
reapportionment plan will be upheld if reasonable and not
arbitrary.15
Review of an administrative decision calls for
deference to the administrative agency when the issue is a
question of law requiring agency expertise16 or a question of
fact.17
IV. DISCUSSION
A. Braun Is Entitled to Attorneys Fees and Costs for His
Challenge of the 2002 Reapportionment Plan Under the
Catalyst Theory.
In Braun I, Braun challenged the constitutionality of
the 2002 reapportionment plan. The case was conditionally
resolved through a settlement agreement negotiated by the parties
in May 2004.18 The settlement agreement provided that Denali
Borough voters would be presented with two presumptively
constitutional apportionment plans19 one submitted by the
Borough, the other submitted by a citizen in the next election.
Braun submitted the citizen-generated reapportionment plan, which
was presented to Denali Borough voters alongside the Boroughs
plan in the following election. The voters opted for the
Boroughs plan rather than Brauns.
Braun moved for attorneys fees in Braun I on March 21,
2005. The Borough opposed. Judge Olsen denied the motion as
premature but later ruled on the issue in May 2006, declining to
award Braun attorneys fees because [Brauns] challenge to the 2002
apportionment scheme ha[d] not been successful and because [t]he
small modification in the 2004 scheme[20] would not change this
conclusion.
Braun argues that his lawsuit led the Borough to
withdraw the 2002 plan, which had a variance over the 10% prima
facie constitutional limit, and to develop the 2004 plan that was
prima facie constitutional. He contends that this fact alone
makes him the prevailing party. He incorporates the arguments
made in his March 2005 motion for attorneys fees, which were
grounded in the catalyst theory.
We have held that the prevailing party is the one who
succeeds on the main issue.21 A party need not prevail on every
issue to enjoy prevailing party status,22 nor need he achieve
formal judicial relief.23 Under the catalyst theory, a plaintiff
who settles enjoys prevailing party status if he proves: (1) that
the goal of his litigation was achieved, meaning that he
succeeded on a significant issue and achieved a benefit for which
the suit was brought, and (2) that his lawsuit was a catalyst in
motivating the defendant to settle.24 Once the plaintiff makes
this prima facie case, he is entitled to Rule 82(b)(2) attorneys
fees unless the defendant proves that his lawsuit lacked
colorable merit.25
Here, both prongs of the test have been fulfilled. The
first question is whether motivating the Borough to set aside the
2002 plan and to develop a new one constitutes success for Braun
on the main issue of his case challenging the constitutionality
of the 2002 reapportionment plan. Braun argues that the
settlement agreement, particularly the replacement of an over-10%
variance plan with a prima facie constitutional, sub-10% variance
plan, proves that his suit was a success. Conversely, the
Borough maintains that its participation in the settlement
agreement does not constitute an admission that the 2002 plan was
unconstitutional, but rather evidences a practical desire to
avoid litigation. But the Borough itself has stated that the
settlement agreement gave [Braun] nearly everything he asked for
in his complaint. Braun challenged the constitutionality of the
2002 reapportionment plan, and as a result of his suit, the
Borough withdrew that plan and replaced it with a prima facie
constitutional one. As to the second prong, the Borough
developed the 2004 reapportionment plan and presented it to the
voters in furtherance of its settlement agreement with Braun.
Braun is entitled to appropriate attorneys fees and costs under
the catalyst theory.26
B. The Superior Court Did Not Err in Deciding that the
2004 Denali Borough Reapportionment Plan Was
Constitutional.
Braun argues that the reapportionment plan adopted by
Denali Borough voters in 2004 violates the equal protection
guarantees of both the United States and Alaska Constitutions.
The 2004 Denali Borough reapportionment plan provides for four
voting districts with borders defined by the U.S. census blocks.
Under the plan, (1) 609 of the total 1,893 Denali Borough voters
are in the North District, meriting three of the nine assembly
seats; (2) 212 are in the East Central District, meriting one
assembly seat; (3) 850 are counted in the West Central District,
meriting four assembly seats; and (4) 222 are counted in the
South District, meriting one assembly seat.27 Braun contends that
these district lines have been drawn to split Healy area voters,
who number 1,000 of the 1,893 total Borough voters, by improperly
combining some of them with other districts. According to Braun,
this arrangement provides fewer assembly seats for Healy area
voters than the majority they deserve, diluting their vote and
improperly denying them majority control. Braun also complains
that the plan provides Cantwell (in the South District) and
Anderson (in the North District) enough seats together to block
an attempted override of the mayors veto by representatives of
over two thirds of borough residents, which he believes is
improper since Anderson and Cantwell number only 589 residents.
The Borough maintains that the plan is presumptively
constitutional and moreover that it is constitutional in fact.
In his May 2006 opinion, Judge Olsen based his dismissal of
Brauns constitutional claims on two alternative grounds: (1)
that he did not have jurisdiction to consider the
constitutionality of the 2004 plan or (2) if he did have
jurisdiction, that the 2004 plan was constitutional, thereby
fulfilling the settlement agreement.
1. Judge Olsen did not lack jurisdiction to consider
the constitutionality of the 2004 reapportionment
plan.
As he contended below, Braun argues on appeal that
Judge Olsen did not have jurisdiction to consider the 2004
reapportionment plan. We disagree. At the May 2005 status
conference before Judge Olsen, the parties stipulated that Judge
Olsens case was the correct forum to decide this discrete issue,
and Judge Olsen, Braun, and the Borough developed a schedule for
submission of evidence and briefing accordingly. The case moved
forward in that court, and the February 2006 order of
clarification reiterated that the only issue to be decided was
the constitutionality of the 2004 reapportionment plan. It was
not until late March 2006, ten months after the parties
stipulated that the case belonged before Judge Olsen, that Braun
changed course and argued that Judge Olsen did not have
jurisdiction.
Brauns eleventh-hour argument that Judge Olsen lacked
jurisdiction to decide the issue is belied by two factors: (1)
the constitutionality of the 2004 plan directly affected the
settlement agreement in the case originally assigned to Judge
Olsen (Braun I) and (2) the parties stipulated that the case
before Judge Olsen was an appropriate forum to decide the issue,
and they litigated it there to completion. After extensive
briefing from both parties on the constitutionality of the 2004
plan, Judge Olsen issued a decision resolving the question.
Judge Olsen had jurisdiction to decide the constitutionality of
the plan.
2. The superior court did not err in affirming the
constitutionality of the 2004 Denali Borough
reapportionment plan.
Braun and other voters petitioned the Department of
Commerce, Community and Economic Development to review the
constitutionality of the 2004 reapportionment plan. The
Commissioner issued a written decision concluding that the plan
was constitutional. In his May 2006 opinion, Judge Olsen upheld
the Commissioners decision, stating that the deference granted to
the voters who adopted the [2004 reapportionment] scheme in the
first place, and to the Commissioner who reviewed the scheme in
the second place, would prevent the court from reversing the
decision of the Commissioner. Under our precedent, that
deference was appropriate. In Kentopp v. Anchorage, we likened
the deference due a municipal assembly in adopting a municipal
reapportionment plan to the deference the Governor enjoys in
fashioning a state reapportionment plan.28 We explained that the
formulation of a reapportionment plan is a decidedly political
process in which we would not lightly interfere, though we
recognized our obligation to assure compliance with all
constitutional guarantees.29 We characterized our review of
reapportionment plans as limited and stated we would validate
them as long as they were reasonable and not arbitrary.30 With
that in mind, we examine Brauns equal protection claims in turn.
a. The 2004 Denali Borough reapportionment plan
does not violate the federal Equal Protection
Clause.
Two fundamental principles govern our analysis of
Brauns federal Equal Protection Clause claim. In our federal
equal protection analysis in Kenai Peninsula Borough, we
recognized that
in the context of voting rights in
redistricting and reapportionment litigation,
there are two basic principles of equal
protection, namely that of one person, one
vote the right to an equally weighted vote
and of fair and effective representation the
right to group effectiveness or an equally
powerful vote.[31]
We have held that an apportionment plan with a variance under 10%
falls in a category of minor deviations and meets the
quantitative standard of one person, one vote.32 It is undisputed
that the variance of the 2004 reapportionment plan is under 10%.
The 2004 reapportionment plan therefore meets the first element
of the Kenai test.
The second element of the test requires that the plan
provide fair and effective representation to voters. Examining
this issue in Kenai, we cited the United States Supreme Courts
plurality decision in Davis v. Bandemer, which held that an equal
protection violation
may be found only where the electoral system
substantially disadvantages certain voters in
their opportunity to influence the political
process effectively. In this context, such a
finding of unconstitutionality must be
supported by evidence of continued
frustration of the will of a majority of the
voters or effective denial to a minority of
voters of a fair chance to influence the
political process.[33]
As we discussed in Kenai, a successful constitutional claim in
the political context requires proof not only of purposeful
discrimination but also proof that a group of voters is being
consistently and substantially excluded from the political
process [and] denied political effectiveness over a period of
more than one election.34 In Kenai, we held a reapportionment
plan did not violate the federal Equal Protection Clause because
it had not been proven that the Board attempted to consistently
and substantially deny voters representation, and because the
Reapportionment Boards goal was to create proportionality.35
Here, Braun has not met his burden of proving that
Denali Borough voters are being consistently and substantially
excluded from the political process. Braun argues that
the Denali Borough has over many elections
impermissibly discriminated against borough
residents by 1) providing for weighted
voting, 2) not providing for majority rule,
3) not providing as nearly as practicable for
relatively integrated socio-economic areas
and, 4) unnecessarily depriving rural
residents of representation.
But these arguments against the 2004 plan are unavailing. The
variance of the 2004 plan is under 10%, which we have held is
prima facie constitutional and insufficient to prove weighted
voting.36 Braun claims that the Healy area population, which
constitutes a majority of Denali Borough residents, is being
improperly deprived of majority control in the Assembly. But as
we have explained before:
Kenai Peninsula Borough does not entitle
political subdivisions to control a
particular number of seats based upon their
populations. Kenai Peninsula Borough simply
held that the board cannot intentionally
discriminate against a borough or any other
politically salient class of voters by
invidiously minimizing that classs right to
an equally effective vote.[37]
Moreover, the Boroughs plan was adopted over Brauns by a majority
vote. And his claim that rural residents are being deprived of
representation does not find support in the record.
Though he does not cite it, the third factor Braun
lists, which concerns integrated socio-economic areas, refers to
language from article VI, section 6 of the Alaska Constitution.
But article VI governs legislative apportionment, not municipal
apportionment.38 Municipal apportionment is governed by statute.39
Furthermore, the language Braun cites is specific to
apportionment of house districts,40 and we have declined to extend
this language even to apportionment of senate districts,41 which,
unlike municipal apportionments, are legislative in nature and
implicated elsewhere in article VI. To the extent that Brauns
argument is not a reference to article VI but instead a broader
attack on the quality of the 2004 plan for its failure to
provid[e] as nearly as practicable for relatively integrated
socio-economic areas, that contention calls on this court to
decide whether the 2004 reapportionment plan is the best plan,
rather than whether it is simply constitutional. We are
authorized to consider only the latter. As we noted in Kentopp:
It cannot be said that what we may deem to be
an unwise choice of any particular provision
of a reapportionment plan from among several
reasonable and constitutional alternatives
constitutes error which would invoke the
jurisdiction of the courts.[42]
Nor has Braun proven the purposefulness of the
exclusion he alleges, as Kenai requires,43 beyond his own
conclusory statements. Even the Liebowitz letter addressed to
the Department director, which refers to the 2002 plan, not the
2004 plan, states only that Liebowitz found evidence not proof,
but evidence that the district lines were drawn for the specific
purpose of preserving three assembly seats for the Anderson/Clear
district.
Ultimately, as Braun has recognized, the basis of his
constitutional claim is a very fact-intensive inquiry. But in
the context of reapportionment plans, our review is deferential;
as long as the reapportionment plan is reasonable and not
arbitrary,44 we must uphold it. In light of the Kenai standard to
prove a constitutional claim in reapportionment cases, and in
light of the deference accorded to the Assembly and the
Commissioner in this context,45 Brauns federal equal protection
claim fails.
b. The 2004 Denali Borough reapportionment plan
does not violate the Alaska equal protection
clause.
We employ a three-part test to evaluate equal
protection challenges under the Alaska Constitution.46 We first
consider what weight is afforded the constitutional interest
impaired by the challenged action.47 We next consider the
purposes served by the challenged action, and we evaluate lastly
the states interest in the particular means used to achieve those
purposes.48 In the context of reapportionment cases, the Alaska
Constitutions equal protection standard is stricter than its
federal counterpart.49
In examining whether an apportionment plan violated the
equal protection clause of the Alaska Constitution, we held in
Kenai that a voters right to an equally geographically effective
or powerful vote is, while not a fundamental right, . . . a
significant constitutional interest.50 The right of Healy area
voters to be grouped in one district and enjoy majority control
in the Assembly is therefore significant, but not fundamental.
Next, we must consider what purposes are served by the
challenged action. In Kenai, it was undisputed that the Board
deliberately fashioned the reapportionment plan to prevent
another Anchorage seat.51 Once a discriminatory intent is proven,
redistricting will be held illegitimate unless that redistricting
effects a greater proportionality of representation.52 Because
the Boards intent in Kenai was facially discriminatory, and
because its effect was to create greater disproportion, we held
that the redistricting plan violated the equal protection clause
of the Alaska Constitution.53
But here, Braun has not proven that the 2004
reapportionment plan was developed to purposefully disenfranchise
Healy area voters. Beyond his own conclusory statements and the
qualified concern Liebowitz expressed regarding the 2002 plan,
which she described as evidence not proof, but evidence that the
district lines may have been drawn for a specific purpose, there
is nothing in the record proving the Boroughs intent to
disenfranchise Healy area voters in the 2004 plan. Indeed, the
Commissioner, to whose view we accord deference on questions of
law requiring agency expertise and on questions of fact,
explicitly determined that the district lines were not drawn to
achieve any particular outcome. As discussed above, Brauns
constitutional claim is a very fact-intensive inquiry, and as
long as the reapportionment plan is reasonable and not arbitrary,54
we must uphold it. Braun has not established that the Borough
intentionally discriminated against Healy area voters in
developing the 2004 plan, and he has not overcome the deference
we accord the Assembly and the Commissioner in the
reapportionment context.55 His equal protection claim under the
Alaska Constitution fails.
C. The Superior Court Did Not Err in Determining that
Braun IV Was an Election Contest and in Granting the
Boroughs Motion for Summary Judgment.
Judge Pengilly granted the Boroughs motion for summary
judgment in Braun IV because he concluded that the case was an
unsuccessful election challenge. Braun appeals that conclusion.
The purpose of an election contest is to ascertain
whether the alleged impropriety in fact establishes doubt as to
the validity of the election result.56 For this reason, [w]hether
a cause of action should be deemed an election contest [] turns
on the remedy sought.57 If the plaintiffs proposed remedy would
defeat the public interest in the stability and finality of
election results, it is appropriate to deem the cause of action
an election contest and to require compliance with the procedures
for such contests.58 A cause of action is deemed not to be an
election challenge only if the remedy will not affect the
stability and finality of the election result.59
Braun asserts that his lawsuit is ultimately a claim
for judicial review of [the Boroughs] plan of apportionment, and
that it does not challenge the validity of the election result
approving the 2004 apportionment.60 But the remedy he sought
before Judge Pengilly was a judgment prohibiting the use of the
reapportionment plan . . . approved by the voters on November 2,
2004 in future elections. And in his October 2007 reply brief
for the consolidated case, Braun asked that we
[e]nter a judgment declaring that the
apportionment plans approved by voters in the
February 19, 2002 special election and the
November 2, 2004 regular election violated
the state and federal constitutions and order
the results of those elections void[.]
(Emphasis added.) Applying this remedy would clearly defeat the
public interest in the stability and finality of election results61
by nullifying the 2004 elections. Moreover, the 2004 election
was itself held pursuant to a settlement that invalidated the
2002 election. If the next reapportionment scheme is also put
before the electorate, it would be the third election on the
subject a situation that, in itself, would seriously undermine
the publics confidence in the finality of election results. The
superior court did not err in concluding that his case was an
election challenge.
We next consider, viewing the evidence in the light
most favorable to Braun, whether the superior court erred in
concluding Brauns election challenge was unsuccessful as a matter
of law. Under AS 15.20.540, an election may be contested on the
following grounds: (1) malconduct, fraud, or corruption on the
part of an election official sufficient to change the result of
the election; (2) when the person certified as elected or
nominated is not qualified as required by law; [or] (3) any
corrupt practice as defined by law sufficient to change the
results of the election. We apply a higher standard of review
for post-election challenges to ballot language than . . . [for]
pre-election challenges.62 In a post-election challenge such as
the one at bar, it is insufficient to establish a lack of total
and exact compliance with the constitutionally and statutorily
prescribed form of ballot.63 Rather, the challenging party has
the dual burden of showing that there was both a significant
deviation from statutory direction, and that the deviation was of
a magnitude sufficient to change the result of the election. 64
Here, Braun made clear both in oral argument before
Judge Pengilly and in his briefing to this court that he
challenges the constitutionality of the 2004 elections subject
matter, not the fairness of its procedures. Braun does not
claim, and nothing in the record indicates, that the November
2004 election was marred by malconduct, fraud, or corruption on
the part of an election official sufficient to change the result
of the election or by any corrupt practice as defined by law
sufficient to change the results of the election.65 Nor does
Braun claim that a person certified as elected or nominated is
not qualified as required by law.66 Brauns election challenge
does not adhere to the grounds outlined in AS 15.20.540, nor has
he proven the significant deviation from statutory direction . .
. sufficient to change the result of the election that is
required in a successful election challenge.67 Judge Pengilly did
not err in concluding that Brauns election challenge was
unsuccessful as a matter of law.
D. Brauns Other Claims in Braun IV Are Meritless.
Braun raises three additional claims in his appeal of
Braun IV: (1) that both Judge Pengillys decision directing Braun
to seek relief before Judge Olsen and the settlement agreement
itself created a process that is contrary to established law; (2)
that the trial courts68 erred by not demanding discovery and [by]
allowing the opposing attorneys and the State of Alaska to
withhold evidence; and (3) that the superior court judges who
have adjudicated his lawsuits are biased and have facilitated
efforts to avoid discovery and cover up evidence of illegal
actions by the State of Alaska and the Denali Borough.
1. Brauns claims regarding the creation of a process
that is contrary to established law fail.
Braun claims that Judge Pengilly created a process that
is contrary to established law by directing Braun to seek relief
in the case before Judge Olsen, and that there is no provision in
[the] Alaska Statutes for successive remedies to be challenged in
this manner. But as discussed above, the case before Judge
Pengilly (Braun IV) was inextricably linked to the case before
Judge Olsen (Braun I) because the settlement brokered to resolve
Braun I hinged on the constitutionality of the 2004
reapportionment plan, a subject implicated in Braun IV. For the
same reason that Judge Olsen had jurisdiction to consider the
constitutionality of the 2004 plan, Judge Pengillys decision
directing Braun to seek relief in the case before Judge Olsen did
not create[] a process that is contrary to established law.
Similarly, Brauns argument that the settlement agreement created
a process contrary to law because it allow[ed] the Denali Borough
to delay fair and effective representation . . . in Denali
Borough by repeatedly putting forth illegal apportionment plans
must fail as we have already concluded that the 2004
reapportionment plan is constitutional.
2. The trial courts did not err in their treatment of
discovery as Braun alleges.
Braun argues that the trial courts erred in their
treatment of discovery by not demanding discovery and [by]
allowing the opposing attorneys and the State of Alaska to
withhold evidence. But Braun did not preserve this objection for
appeal because he did not request discovery in Braun IV, a point
the Borough makes and Braun does not contest.69 Moreover, even
had he done so, the issue would be moot. Because Braun conceded
that he was not contesting the procedures by which the 2004
election was held, no amount of evidence would transform Braun IV
into a valid election challenge. Nor has Braun preserved a
discovery objection in Braun I, for as he notes, the parties
chose to forgo discovery in that case on the issue of
constitutionality.70
3. Brauns claim of bias fails.
Brauns next claim is a general allegation of bias and
judicial misconduct on the part of the judges who have presided
over his various lawsuits:
The record indicates that [t]rial [c]ourt
[j]udges were manifestly erroneous, not
impartial, and have facilitated efforts to
avoid discovery and cover up evidence of
illegal actions by the State of Alaska and
the Denali Borough. I argue that some in the
Fairbanks Court are aiding the State of
Alaska, the Denali Borough and Mr. Walleri in
an attempt to quash my appeal before this
court.
Braun also accuses his former attorney of deliberately
withholding crucial evidence and claims that permitting the
attorney to withdraw from his cases without appointing a
replacement was an example of misconduct on the part of the
courts involved.71 The overall plan, Braun asserts, appears to be
to narrow the focus and withhold evidence in [Judge Olsens case]
so that my prosecution of that case fails for lack of evidence.
As we have noted, the Alaska Code of Judicial Conduct
requires that [i]n the performance of judicial duties, a judge
shall act without bias and prejudice and shall not manifest [such
bias or prejudice] by words or conduct.72 Where a judge has a
personal bias or prejudice concerning a party or a partys lawyer,
that judge should be disqualified.73 But the burden of proof is
on the party alleging bias,74 and the issuance of a ruling adverse
to that party is not, in and of itself, sufficient to meet the
burden.75
There is no evidence in the record to suggest that any
of the judges involved in Brauns cases were biased against him.
Declining to appoint counsel is not an indication of bias here
because Brauns claims do not fall within any of the categories of
civil cases for which appointment of counsel is required.76 And
we have already concluded that the trial courts treatment of
discovery was not error. Furthermore, despite declining to
decide the issue, Judge Pengilly actually provided Braun a list
of three possible methods of challenging the constitutionality of
the Denali Borough voting districts. Brauns claim of bias fails.
E. Braun Is Not Entitled to Attorneys Fees in Braun IV.
Finally, Braun seeks a judgment declaring him to be a
public interest litigant and awarding him his costs and attorneys
fees in Braun IV. Alaska Statute 09.60.010(c)(1) provides that
[i]n a civil action . . . 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 . . . full reasonable attorney fees and
costs to a claimant, who, as plaintiff . . . has prevailed in
asserting the right. But because Braun did not prevail on the
claims he asserted in Braun IV, he is not entitled to attorneys
fees in that action.
V. CONCLUSION
Braun is entitled to attorneys fees and costs for his
challenge to the 2002 reapportionment plan under the catalyst
theory. We therefore REVERSE Judge Olsens decision to the
contrary and REMAND for consideration of the appropriate award.
But we AFFIRM Judge Olsens decision upholding the
constitutionality of the 2004 Denali Borough reapportionment
plan, and we AFFIRM Judge Pengillys grant of summary judgment to
the Borough regarding Brauns challenge of the 2004 election.
Brauns remaining claims in Braun IV also fail. Accordingly,
Braun is not entitled to attorneys fees in that case.
_______________________________
1 Under the one-person, one-vote doctrine, population
among the districts should be equal so that the vote of any
citizen is approximately equal to that of any other citizen in
the Borough. Hickel v. Se. Conference, 846 P.2d 38, 47 (Alaska
1992). A total variance indicates the percentage by which a
given apportionment deviates from this mathematical ideal,
calculated by adding the percentage deviation of the least
populated district and the percentage deviation of the most
populated district. Kenai Peninsula Borough v. State, 743 P.2d
1352, 1356 n.1 (Alaska 1987); Kentopp v. Anchorage, 652 P.2d 453,
464 (Alaska 1982); Groh v. Egan, 526 P.2d 863, 874 (Alaska 1974).
2 Braun v. Denali Borough (Braun I), Case No. 4FA-02-
02156 CI (2002). Judge Olsen presided over this case.
3 Braun v. Denali Borough (Braun II), Case No. 4FA-03-
02607 CI (2003). Superior Court Judge Mark I. Wood presided over
this case.
4 Braun v. Denali Borough (Braun III), Case No. 4FA 04-
02428 CI (2004). Superior Court Judge Richard D. Savell presided
over this case.
5 Braun v. Denali Borough (Braun IV), Case No. 4FA 04-
02616 CI (2004). Judge Pengilly presided over this case.
6 At this point, the title of the department had changed
from the Department of Community and Economic Development to the
Department of Commerce, Community and Economic Development.
7 Braun II was dismissed after the negotiation of the
settlement agreement. The record indicates that as of May 2006,
all Braun III claims but one, an Open Meetings Act claim, had
been dismissed. We are unaware of any appeal in that case.
8 Brannon v. Contl Cas. Co., 137 P.3d 280, 284 (Alaska
2006).
9 Id.
10 Bromley v. Mitchell, 902 P.2d 797, 804 (Alaska 1995).
11 Id.
12 Kentopp v. Anchorage, 652 P.2d 453, 462 (Alaska 1982).
13 Id.
14 See id. (Deference similar to that owed the Governor in
fashioning a state reapportionment plan is due the Anchorage
Assembly in its decisions regarding the adoption of a municipal
reapportionment plan.).
15 Kenai Peninsula Borough v. State, 743 P.2d 1352, 1363
(Alaska 1987).
16 Premera Blue Cross v. State, Dept of Commerce, Cmty. &
Econ. Dev., Div. of Ins., 171 P.3d 1110, 1115 (Alaska 2007) (In
questions of law involving an agencys expertise . . . a rational
basis standard is applied and we defer to an agencys
determination so long as it is reasonable.).
17 Halter v. State, Dept of Commerce & Econ. Dev., Med.
Bd., 990 P.2d 1035, 1037 (Alaska 1999) (stating that review of
the Boards factual findings is limited to whether there was
substantial evidence in the record to support the Boards
findings); see also Ketchikan Gateway Borough v. Ketchikan Indian
Corp., 75 P.3d 1042, 1045 (Alaska 2003) (noting that the
substantial evidence test is deferential).
18 The settlement agreement stayed the case pending voter
decision of assembly apportionment in accordance with the[] terms
outlined in the agreement, and it conditioned dismissal of the
case [u]pon approval by the voters of a constitutionally
acceptable apportionment plan.
19 Reapportionment plans with variances under 10% are
prima facie constitutional. Kenai, 743 P.2d 1352, 1366-67
(Alaska 1987); see also Groh v. Egan, 526 P.2d 863, 877 (Alaska
1974). Though the 1998 amendments to article VI of the Alaska
Constitution may affect the applicability of this rule to
legislative apportionments, as discussed in In re 2001
Redistricting Cases, 44 P.3d 141, 145-46 (Alaska 2002), they do
not affect the applicability of the rule to municipal
apportionments. The plain language of article VI, section 6
makes clear that the section applies only to house and senate
district boundaries drawn by the Redistricting Board. Municipal
apportionment plans are governed instead by statute. See AS
29.20.060.120.
20 In its 2004 reapportionment plan, the Borough achieved
a variance of 9%, versus the 11.9% variance of the previous plan.
21 Halloran v. State, Div. of Elections, 115 P.3d 547, 553
(Alaska 2005).
22 Id.
23 DeSalvo v. Bryant, 42 P.3d 525, 530 (Alaska 2002).
24 Id.
25 Id.
26 We note that the Borough has conceded that Braun is a
public interest litigant as to the merits of his
constitutionality challenge, and in his May 2006 decision, Judge
Olsen determined that Braun was a public interest litigant.
27 The trial court noted that [t]he Denali Borough, at
12,000 square miles, is larger than nine of the states of the
United States. With only 1,893 residents, its average population
density is 0.1 person per square mile, and the majority of census
blocks contain no or virtually no residents. Braun agrees that
the Borough does have a large area and a small population, and
the Borough comments that equaliz[ing] election districts in
lightly populated rural boroughs is particularly challenging.
Indeed, we have noted before that [r]edistricting in Alaska is a
task of Herculean proportions. In re 2001 Redistricting Cases,
44 P.3d 141, 147 (Alaska 2002).
28 652 P.2d 453, 462 (Alaska 1982).
29 Id.
30 Id.; see also Kenai Peninsula Borough v. State, 743
P.2d 1352, 1363 (Alaska 1987).
31 743 P.2d at 1366.
32 Id. at 1366-67.
33 Id. at 1369 (quoting Davis v. Bandemer, 478 U.S. 109,
133 (1986)).
34 Id.
35 Id. at 1370, 1372.
36 Id. at 1366-67.
37 In re 2001 Redistricting Cases, 44 P.3d 141, 144
(Alaska 2002) (quotations omitted).
38 The plain language of article VI makes it clear that it
governs senate and house apportionment. Alaska Const. art. VI.
39 See AS 29.20.060.120.
40 Each house district shall be formed of contiguous and
compact territory containing as nearly as practicable a
relatively integrated socio-economic area. Alaska Const. art.
VI, 6.
41 Kenai, 743 P.2d at 1365 ([W]e hold that the provisions
of article VI, section 6 which set forth socio-economic
integration, compactness and contiguity requirements are
inapplicable to redistricting and reapportionment of senate
districts.).
42 652 P.2d at 462.
43 743 P.2d at 1369 (In summation, proof of purposeful
discrimination alone is insufficient to state a cause of action
for political gerrymandering. The plurality in Bandemer would
require additional proof that the group has been consistently and
substantially excluded from the political process . . . in order
to raise a constitutional claim.).
44 Kentopp, 652 P.2d at 462; Kenai, 743 P.2d at 1363.
45 The Borough characterizes Brauns attack on the
constitutionality of the 2004 plan as an administrative appeal.
Braun contests this characterization and points out that his case
challenging the constitutionality of the 2004 plan was filed
before administrative review of the plan was completed. But we
need not reach this dispute because it does not affect the
result. Under Kentopp and Kenai, our review of reapportionment
plans must be deferential.
46 Kenai, 743 P.2d at 1371.
47 Id.
48 Id.
49 Id.
50 Id. at 1372.
51 Id. at 1370.
52 Id. at 1372.
53 Id. at 1372-73.
54 Kentopp, 652 P.2d at 462.
55 See id.
56 Walleri v. City of Fairbanks, 964 P.2d 463, 466 (Alaska
1998) (quoting Boucher v. Bomhoff, 495 P.2d 77, 80 (Alaska
1972)).
57 Walleri, 964 P.2d at 466; see also DeNardo v.
Municipality of Anchorage, 105 P.3d 136, 140 (Alaska 2005)
(holding that a cause of action was an election challenge where
the plaintiffs sought to void Proposition 2, a remedy that would
both overturn the proposition and mandate a runoff in the mayoral
election).
58 Walleri, 964 P.2d at 466.
59 Id.
60 In the first paragraph of the Braun IV complaint, Braun
stated: This is an election contest seeking judicial review of
the regular election held in the Denali Borough on the 2nd day of
November 2004. In his appeal, Braun argues this phrasing was a
procedural error by a pro se litigant and mischaracterizes his
claim. But Judge Pengilly did not mention this paragraph in his
decision; he concluded Braun IV was an election challenge on
independent grounds.
61 Walleri, 964 P.2d at 466.
62 DeNardo, 105 P.3d at 141.
63 Boucher, 495 P.2d at 80.
64 Denardo, 105 P.3d at 141 (quoting Dansereau v. Ulmer,
903 P.2d 555, 559 (Alaska 1995)).
65 AS 15.20.540.
66 Id.
67 Denardo, 105 P.3d at 141 (quotations omitted).
68 Braun does not specify which trial courts he means,
although his subsequent discussion mentions both the Olsen case
(Braun I) and the Pengilly case (Braun IV).
69 See Duffus v. Duffus, 72 P.3d 313, 317 (Alaska 2003)
(noting that we have long adhered to the tenet that matters not
raised at trial will not be considered on appeal (quotations
omitted)).
70 Braun states in his brief that Mr. Walleri [counsel for
Braun] and Mr. Gorski [counsel for the Borough] agreed, for their
own reasons, to [forgo] discovery relative to the equal
protection issue . . . .
71 Braun states that he fired Walleri in Braun IV and that
two of the other judges presiding over his cases permitted
Walleri to withdraw. He appears to claim that each of these
judges should have appointed counsel for him.
72 Hanson v. Hanson, 36 P.3d 1181, 1184 (Alaska 2001)
(alteration in original) (quotations omitted).
73 Id.
74 See, e.g., Nelson v. Jones, 781 P.2d 964, 972 (Alaska
1989) (stating, in the context of a motion to disqualify, that
the appellant was required to establish that the prior adverse
rulings were the result of personal bias developed from a
nonjudicial source).
75 See Lacher v. Lacher, 993 P.2d 413, 421 (Alaska 1999)
(declining to reverse a trial judges refusal to recuse himself
where the appellants claim of bias was little more than an
expression of [her] dissatisfaction with the superior courts
ruling).
76 See, e.g., Midgett v. Cook Inlet Pre-Trial Facility,
53 P.3d 1105, 1111 (Alaska 2002) (requiring counsel for cases
involving termination of parental rights, child custody,
paternity suits, and civil contempt proceedings for nonpayment of
child support (citations omitted)).
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