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Stalnaker v. Williams (6/12/98), 960 P 2d 590
<![CDATA[
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.
THE SUPREME COURT OF THE STATE OF ALASKA
ROBERT STALNAKER, )
Administrator of the Public ) Supreme Court No. S-7751
Employees' Retirement System, )
) Superior Court No.
Appellant, ) 3AN-92-10840 CI and
) 3AN-94-6705 CI
v. )
)
MARY ANN WILLIAMS, ) O P I N I O N
)
Appellee. ) [No. 5003 - June 12, 1998]
______________________________)
Appeal in File No. 3AN-92-10840 from the
Superior Court of the State of Alaska, Third Judicial District,
Anchorage, Donald D. Hopwood, Judge. Appeal in File No. 3AN-94-
6705 from the Superior Court of the State of Alaska, Third Judicial
District, Anchorage, Karen L. Hunt, Judge.
Appearances: John B. Gaguine, Assistant
Attorney General, and Bruce M. Botelho, Attorney General, Juneau,
for Appellant. William J. Soule, Law Office of William J. Soule,
Anchorage, for Appellee. Robert M. Johnson, Wohlforth,
Argetsinger, Johnson & Brecht, Anchorage, for Amicus Curiae, Public
Employees' Retirement Board.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
Robert Stalnaker, administrator of the Public Employees'
Retirement System, challenges two superior court decisions that
reviewed administrative rulings by the Public Employees' Retirement
Board. The superior court decisions would allow Mary Ann Williams,
a former state employee, to recover occupational-disability
benefits and attorney's fees. We affirm.
II. FACTS AND PROCEEDINGS
From 1977 to 1990, Mary Ann Williams worked for the State
of Alaska in the Child Support Enforcement Division (CSED). She
went on medical leave in July 1990 and did not return to work. In
September 1990 Williams applied for occupational-disability
benefits from the Public Employees' Retirement System (PERS),
claiming that work-related stress had caused various physical and
psychological problems. In December 1991 the PERS Director decided
that Williams was not eligible for occupational-disability
benefits, but was eligible for nonoccupational-disability benefits.
Williams appealed the denial of occupational-disability benefits to
the Public Employees' Retirement Board (PERB or Board). [Fn. 1]
The Board heard Williams's appeal in October 1992 and, by
a vote of four to two, affirmed the Director's denial of
occupational-disability benefits. The Board's decision explained
that Williams's had not "demonstrated by a preponderance of the
evidence [that her condition would] presumably permanently prevent
[her] from satisfactorily performing [her] duties." Thus, the
Board did not decide whether her disabilities resulted from her
employment.
Williams appealed the Board's decision to the superior
court. Judge Donald D. Hopwood found that the Board had not paid
sufficient attention to the statutory language requiring applicants
for benefits to show that they are "presumably permanently"
disabled. [Fn. 2] Judge Hopwood reasoned that the PERB had
erroneously required Williams to prove that she was permanently
disabled, using a definition of "permanence"derived from workers'
compensation law. He outlined a definition of "presumably
permanent"and remanded the case to the PERB, ordering the Board to
reconsider the case in light of that definition and to decide
whether Williams's condition had occurred in the course of her
employment. [Fn. 3]
On remand the PERB considered the evidence from the
previous proceedings as well as new testimony and documentary
evidence regarding the "presumed"permanence of Williams's
condition. After conducting a two-day hearing in June 1994,
attended by six of the seven PERB members, the PERB concluded by a
vote of four to two that Williams was presumably permanently
disabled. On the question of whether her disability had resulted
from her employment, however, the Board tied three to three. The
Board ruled that a majority of the Board was required to overturn
a decision of the Director; thus, it concluded that the tie vote
affirmed the Director's denial of benefits. At the time, no PERS
regulation addressed the effect of a tie vote. [Fn. 4]
Williams again appealed to the superior court, asserting
that a tie vote rendered no decision on the proximate cause of her
disability. In February 1996 Judge Karen L. Hunt ordered the Board
to have the member who was absent from the June 1994 hearing review
the record and issue a tie-breaking decision. The court denied
PERB's request for reconsideration of this order.
After reviewing the record, the Board member who had been
absent from the June 1994 hearing found that Williams was suffering
from an occupational disability. He signed a supplement to the
Board's decision, effectively reversing the Director's denial of
occupational-disability benefits for Williams's mental condition.
Judge Hunt then awarded Williams one hundred percent of her claimed
attorney's fees ($11,480) plus costs. Judge Hunt later modified
that order by awarding eighty-six percent of actual attorney's fees
plus costs.
Robert Stalnaker, the PERS administrator, appeals Judge
Hopwood's decision remanding the case to the Board, Judge Hunt's
decision regarding the effect of the Board's tie vote, and Judge
Hunt's award of attorney's fees.
III. DISCUSSION
A. Judge Hopwood's Remand to the Board
1. Standard of review
"In an appeal from a judgment of a superior court acting
as an intermediate court of appeal, we give no deference to the
superior court decision. Rather, we independently review the
agency decision." Cook Inlet Pipe Line Co. v. Alaska Pub. Utils.
Comm'n, 836 P.2d 343, 348 (Alaska 1992). We use our independent
judgment in reviewing the superior court's legal conclusion that
the PERB applied the wrong definition of "presumably permanently"
disabled. In doing so, we must use our independent judgment in
deciding whether the Board applied the wrong standard. See id.
(stating that we apply our independent judgment to legal questions
that do not involve agency expertise).
2. Did the Board apply an incorrect definition of
"presumably permanent"?
An employee seeking occupational-disability benefits must
prove that his or her employment was "terminated because of a total
and apparently permanent occupational disability, as defined in
AS 39.35.680, before the employee's normal retirement date."
AS 39.35.410. An "occupational disability"is:
a physical or mental condition that, in the
judgment of the administrator, presumably permanently prevents an
employee from satisfactorily performing the employee's usual duties
for an employer or the duties of another comparable position or job
that an employer makes available and for which the employee is
qualified by training or education.
AS 39.35.680(26) (emphasis added). The debate in Williams's appeal
focuses on whether the Board required a showing of permanence
instead of presumed permanence.
Judge Hopwood found that the Board had incorrectly
required Williams to prove that her disability was permanent --
that it would certainly not improve during her lifetime. He noted
that the Board relied almost exclusively on testimony from one
medical expert, Dr. Samson, and that Dr. Samson's definition of
permanence omitted the key word "presumably."[Fn. 5] Stalnaker
challenges Judge Hopwood's ruling, arguing that the Board used the
correct standard in the October 1992 hearing. Thus, Stalnaker
argues that Judge Hopwood's decision to remand was improper and
should be reversed.
The parties have not argued that Judge Hopwood adopted an
erroneous definition of "presumably permanent." Judge Hopwood
explained:
[A]n employee who is seeking occupational or
nonoccupational disability benefits under the PERS statutes must
prove by credible evidence that her condition is more likely than
not permanent. If the employee meets that burden, her condition is
presumably permanent and she is entitled to disability benefits.
Judge Hopwood also explained that the Board retains its discretion
to assess the credibility of witnesses and the reliability of
conflicting evidence; the Board need not accept all evidence that
tends to prove the existence of a disability. Thus, "presumably
permanent"is not a presumption; it does not shift the burden of
proof of a disability from the employee to the employer.
The Board's decision and the hearing transcript do not
clearly indicate which definition the Board required Williams to
meet. [Fn. 6] The Board, however, stated that it gave more weight
to the testimony of Dr. Samson than it did to that of any other
witness. Dr. Samson testified that he never considered Ms.
Williams permanently disabled; he considered her disability to be
temporary and had suggested that she take a few weeks or months off
work and, perhaps, consider changing jobs. [Fn. 7] He also had not
realized until shortly before testifying that he would be asked to
testify about whether Williams suffered from a "presumably
permanent"condition. [Fn. 8]
The Board chair asked Dr. Samson to clarify what he meant
by "permanent." Judge Hopwood cited this exchange when explaining
his conclusion that the Board had misconstrued the presumed
permanency requirement. Dr. Samson had explained that he believed
that a "temporary"condition might require three to four years of
treatment, but that he believed a "permanent"condition would last
a lifetime. The Board chair did not ask him what he understood a
"presumably permanent"condition to be. The Board relied very
heavily on Dr. Samson's testimony. Judge Hopwood concluded that
the Board must have relied on Dr. Samson's definition of
permanency.
Although it is a close question, we agree with Judge
Hopwood's conclusion that the Board applied an incorrect
definition. The Board's clearest indication of the definition it
applied comes from Finding of Fact No. 8:
There was conflicting evidence concerning
whether Ms. Williams's disabling mental condition was presumably or
apparently permanent at the time of her termination. The Board
finds more persuasive the testimony of Dr. Samson, Ms. Williams's
treating psychiatrist, that Ms. Williams's condition was not
permanent, than the contrary testimony of other witnesses.
(Emphasis added.) That language suggests that the Board was
looking for evidence of a permanent, rather than presumably
permanent, disability. Judge Hopwood did not err in remanding to
the PERB.
B. Judge Hunt's Determination of the Effect of a Tie Vote
1. Standard of review
We have found no Alaska case that indicates which
standard of review to apply to an agency's choice of procedures in
the absence of a relevant agency provision. We will treat this as
an issue of law, which we decide by applying our independent
judgment. We will "adopt the rule of law that is most persuasive
in light of precedent, reason and policy." Brooks v. Brooks, 733
P.2d 1044, 1055 (Alaska 1987) (citation omitted). We decline to
deferentially review the Board's adoption of a "tie affirms"
practice in this case, because the Board did not adopt that
practice in advance of the hearing by generally applicable rule or
regulation, and did not inform Williams that it would adopt any
such practice until after the hearing had been conducted, the vote
taken, and the decision issued. Nothing in the record indicates
that the Board, in adopting the "tie affirms"practice for this
case, invoked its expertise in interpreting the agency's enabling
statutes. See University of Alaska v. University of Alaska
Classified Employees Ass'n, 952 P.2d 1182, 1184-85 n.6 (Alaska
1998) ("Where it appears that the agency has not invoked its
expertise, we apply the substitution of judgment standard and
review questions of law independently.").
We therefore do not defer to the decisions of the Board
or the intermediate appellate court.
2. Is the Board more analogous to a trial court or an
appellate court?
The parties dispute whether the Board is analogous to a
trial court or an appellate court. Williams contends that the
Board plays the role of trial court, and cannot end its
deliberations with a tie vote (a hung jury, in her analogy) because
it must render a decision. Stalnaker argues that the Board is more
akin to an appellate court, in that it reviews the administrator's
decision and overturns it only if a majority agrees to do so.
Absent a different rule of procedure, appellate courts, including
our own, commonly apply a "tie affirms"policy to resolve issues on
which the appellate jurists are equally split. See, e.g., Neil v.
Biggers, 409 U.S. 188, 191-93 (1972); Hayes v. A.J. Assocs., Inc.,
__ P.2d __, Op. No. 4992 at 38 (Alaska, May 22, 1998); 5 Am. Jur.
2d Appellate Review sec. 832 (1995).
Like an appellate court, the Board is empowered "to act
as an appeals board, hold hearings at the request of an employer,
employee, surviving spouse or a beneficiary on decisions made by
the administrator, and submit its findings to the administrator."
AS 39.35.040(4). Thus, it only reviews cases on appeals from the
decisions of the administrator; as Stalnaker points out, it is not
the initial fact finder. The Board's written decision sets forth
findings of fact and conclusions of law; it "is the final
administrative decision required for purposes of appeal to the
superior court." 2 AAC 35.180; see also Powers v. State, 757 P.2d
65, 67 (Alaska 1988).
Some of these functions are analogous to those of trial
courts. And like a trial court, the Board conducts hearings
complete with opening and closing arguments, witness testimony, and
evidence; it produces a written opinion. See AS 39.35.040; 2 AAC
35.150, .160, .170. The Board is free to question the witnesses
during the hearings. 2 AAC 35.160(b). The Board may consider
evidence that the parties did not present to the administrator. 2
AAC 35.160(d). It also has a duty to "submit its findings to the
administrator." AS 39.35.040(4).
Although Stalnaker's argument is not without merit, we
find Williams's analogy more apt. As this case illustrates, the
Board is to make findings, including findings based on new evidence
not presented to the administrator. We believe that the Board's
duty to make such findings distinguishes it from appellate bodies,
which only review the records from earlier proceedings. Therefore,
we do not believe that the appellate court "tie affirms"policy
applies to the Board.
3. Should the superior court have left undisturbed the
Board's determination of the effect of a tie vote?
Stalnaker asserts that, by ordering the tie-breaking
vote, the superior court substituted its own procedural rules for
the Board's. He also argues that the Board's determination of the
effect of the tie vote was reasonable and should not have been
disturbed, and that Judge Hunt's order constituted impermissible
judicial interference with the Board's discretion to fashion its
own procedures.
Stalnaker cites cases that speak strongly in favor of
giving administrative agencies latitude in designing their own
procedures. See Vermont Yankee Nuclear Power Corp. v. Natural
Resources Defense Council, Inc., 435 U.S. 519, 524-25 (1978)
("[T]his Court has for more than four decades emphasized that the
formulation of procedures was basically to be left within the
discretion of the agencies to which Congress had confided the
responsibility for substantive judgments."); Federal Communications
Comm'n v. Schreiber, 381 U.S. 279, 290-91 (1965) ("[I]n providing
for judicial review of administrative procedural rule-making,
Congress has not empowered district courts to substitute their
judgment for that of the agency."). The United States Supreme
Court, then, has cautioned courts against imposing procedural
rights or requirements on agencies.
The Board's amicus brief discusses the Board's quorum
rules, noting that "not all members of a multi-member board will be
present at all meetings." The Board argues that the quorum rules
ensure that "the Board's work is done even when all Board members
are not present."
The parties to this case argued before six-member Board
panels in 1992 and 1994, and neither party objected to the panels.
The Board impliedly argues that Williams may not object to the tie
vote since she did not object when the possibility of a tie first
arose.
Although public policy favors timely objections, it more
strongly favors clear agency regulations. This case is a good
example, because the Board first informed Williams of the "tie
affirms"rule after the six-person Board had voted and announced
its decision. [Fn. 9] Unwritten rules might facilitate faster,
less formal decisions, but they also allow an agency to act in an
arbitrary or discriminatory manner. We have recognized "the two
basic public policy interests served by impartial decision-making:
accuracy of decisions, and the avoidance of the appearance of
impropriety." Griswold v. City of Homer, 925 P.2d 1015, 1028-29
(Alaska 1996). Announcing a "tie affirms"practice only after a
vote has been taken tends to raise suspicions of post hoc
expediency. Moreover, the practice was not embodied in an agency
regulation or any written policy when the Board ruled; we agree
with Judge Hunt that "[t]here is no procedure in place for the
court to consider and give deference to." That Williams twice
accepted six-member panels should not preclude her from raising
this issue. Absent prior notice of the policy, a claimant's
acceptance of a panel with an even number of members does not
warrant a finding of waiver; it is also consistent with
expectations of either outright victory or, in the event of a tie,
referral to the absent member.
We do not believe that the informal, unwritten "tie
affirms"practice, followed only once before, rises to the level of
an agency regulation deserving deference from the court. In
addition, AS 39.35.040(4) requires the Board to make and submit
findings to the administrator, and a tie vote does not satisfy that
requirement.
In ordering a tie-breaking vote, Judge Hunt appropriately
resolved this issue.
C. The Attorney's Fees Award
Stalnaker asserts that it was an abuse of discretion to
award Williams eighty-six percent of her actual attorney's fees.
He notes that the court did not find that he had litigated in bad
faith or presented frivolous claims. He suggests that, although
Alaska Civil Rule 82 does not govern attorney's fees awards on
appeal, it is a useful guide for assessing the reasonableness of
such awards. He believes that, under our interpretation of Civil
Rule 82, successful litigants should receive only a "small
percentage"of their attorney's fees unless the court finds
"special circumstances,"such as misconduct by the losing party.
He concludes that the award should not exceed fifty percent of the
claimed attorney's fees.
Williams argues that the superior court had "broad
discretion to award significant, partial fees to the prevailing
party." She also contends that Civil Rule 82 and the cases
interpreting it do not apply. She concludes that the award was
reasonable and falls within the discretion of the superior court.
[Fn. 10]
Alaska Appellate Rule 508(e) governs attorney's fees
awards on appeals. [Fn. 11] A superior court hearing an appeal
from an administrative agency awards attorney's fees under
Appellate Rule 508, not Civil Rule 82. Carr-Gottstein Properties
v. State, 899 P.2d 136, 148 (Alaska 1995); Diedrich v. City of
Ketchikan, 805 P.2d 362, 371 (Alaska 1991). In Carr-Gottstein we
found that the Civil Rule 82 guidelines helped the trial court
calculate a "reasonable"award in a case that did not result in a
money judgment. Carr-Gottstein, 899 P.2d at 148-49. We did not,
however, require courts invariably to follow those guidelines; we
simply found that the guidelines offer one way to reach a
reasonable award.
We have limited awards under Appellate Rule 508(e) in two
respects. First, such awards should address the fees incurred on
the appeal to the superior court, not those incurred in the
underlying administrative proceeding. See, e.g., Kenai Peninsula
Borough v. Cook Inlet Region, Inc., 807 P.2d 487, 501 (Alaska
1991). Second, the award "should only partially compensate the
prevailing party for attorney's fees." State v. Cacioppo, 813 P.2d
679, 685 (Alaska 1991).
The time sheets submitted by Williams's attorney cover
the period from July 25, 1994, to March 1, 1996, except for ten
minutes of research on June 9, 1994. The PERB heard Williams's
case (after Judge Hopwood's remand) in June 1994, and issued its
written decision on June 27. Williams filed an appeal with the
superior court on February 15, 1995. Judge Hunt remanded the case
to the absent Board member on February 27, 1996, and denied
reconsideration of that order in April 1996. Thus, except for the
June 1994 legal research, it appears that Williams requested fees
only for work done on the appeal, not for work done on the
administrative hearing. [Fn. 12]
An award of eighty-six percent of actual fees also seems
to comply with Cacioppo's requirement of partial rather than full
compensation. [Fn. 13] In Cacioppo, for instance, we held that,
although full actual fees were inappropriate, "the trial court on
remand may still exercise its sound discretion and award a
substantial sum as partial attorney's fees, if persuaded the amount
of fees to be awarded is justified and reasonable." Cacioppo, 813
P.2d at 685. We have also suggested some factors for trial courts
to consider when calculating attorney's fees: "[t]he extent to
which litigants have been involved in prior administrative
proceedings, and the cost thereof, as well as the nature of
judicial review and its cost [and the importance to the litigants
of the rights asserted]." Rosen v. State Bd. of Pub. Accountancy,
689 P.2d 478, 482-83 (Alaska 1984).
In Cacioppo we noted the analogy between PERB disability
claims and workers' compensation claims. 813 P.2d at 683. The
analogy is not, however, reflected in our appellate rules, as a
successful workers' compensation claimant is entitled to full
reasonable attorney's fees, Alaska R. App. P. 508(g)(2), whereas a
successful PERB claimant is limited to partial fees. But the
similarity of PERB and workers' compensation cases makes Judge
Hunt's award of substantial partial fees under Appellate Rule
508(e) seem reasonable. It was within the court's discretion to
award a substantial percentage of the actual fees for this appeal,
especially in light of the Rosen factors: Williams has been
pursuing her case for years; the amount of her monthly disability
payments probably is very important to her; and attorney's fees
awards help ensure access to the appeals process for the
unemployed. Judge Hunt could reasonably conclude that this case
merited an award of eighty-six percent of the actual fees; this
court concludes that she did not abuse her discretion. [Fn. 14]
IV. CONCLUSION
We AFFIRM the decisions of the superior court.
FOOTNOTES
Footnote 1:
After leaving her job in 1990, Williams also applied for
workers' compensation benefits under AS 23.30, based on the same
claims as those before the PERB. The Alaska Workers' Compensation
Board (AWCB) refused to grant benefits for either the physical or
mental disabilities she claimed. The AWCB issued its decision
after Williams had appealed to the PERB but before the PERB had
held a hearing. In July 1992 the PERB ruled that collateral
estoppel prevented Williams from arguing her claims for physical
injuries allegedly arising out of her employment, because the AWCB
had conclusively decided that issue. In the same decision, the
PERB ruled that Williams was not collaterally estopped from
proceeding with her claims for PERS benefits based on nonphysical
disabilities arising out of her employment; the PERS standard of
proof for those claims differed. Therefore, the PERB agreed to
hear Williams's appeal for PERS benefits for mental disabilities
allegedly resulting from her employment.
Footnote 2:
To approve an award of nonoccupational-disability benefits,
the Director had to have concluded that Williams was "presumably
permanently"disabled. Judge Hopwood held that the Director's
decision did not bind the PERB; no statute or regulation required
the PERB to defer to the Director's determinations; and the
doctrine of estoppel did not apply.
Footnote 3:
Judge Hopwood's remand was not immediately appealable because
it was not a final judgment. When a superior court sits as an
intermediate appellate court and remands a case to an
administrative agency for further proceedings, the remand is not
considered a final judgment. Alaska R. App. P. 202; City of North
Pole v. Zabek, 934 P.2d 1292, 1295-96 (Alaska 1997); City of Juneau
v. Thiboudeau, 595 P.2d 626, 629-30 (Alaska 1979).
Footnote 4:
Stalnaker asserts that a subsequently promulgated regulation,
to be published at 2 Alaska Administrative Code (AAC) 35.170(c),
provides that a tie vote of the Board affirms the administrator's
decision.
Footnote 5:
Two other medical experts testified about the permanence of
Williams's condition, but the Board discounted their testimony.
The Board explained:
There was conflicting evidence concerning
whether Ms. Williams's disabling mental condition was presumably or
apparently permanent at the time of her termination. The Board
finds more persuasive the testimony of Dr. Samson, Ms. Williams's
treating psychiatrist, that Ms. Williams's condition was not
permanent, than the contrary testimony of other witnesses. In
particular, the Board gives more weight to Dr. Samson's opinion
than to the opinions of either Dr. Franklin, who neither examined
nor treated Ms. Williams, or Dr. Kappes, who acknowledged that he
would not testify against a client's interest.
Footnote 6:
The Board stated that it gave much weight to the opinion of
Dr. Samson, who did not apply the "presumably permanent"standard.
But the Board also stated that Williams's condition "was not
demonstrated by a preponderance of the evidence to presumably
permanently prevent"her from performing her job duties.
Footnote 7:
Dr. Samson explained that, "[i]n at least one or two points
during treatment with me, I agreed with her taking a few weeks or
a few months off. That's a temporary disability. My expectation
was that someone takes off a few months, come back to the situation
and see what's going on." Dr. Samson also explained:
There were, I think, one time or maybe even a
couple of times, where her degree of distress was significant
enough that I felt that getting away from work, and not having to
deal at least with that particular part of [her] life, would have
been helpful. And that's the context in which I recommended that
she take some time off. If calling it a disability or partial
temporary disability or whatever, is what it takes to get people to
be able to use their sick leave to do that, that's how I do it.
Footnote 8:
Ms. Williams's attorney asked Dr. Samson, "When did you find
out that, for the first time, that for PERS' purposes, there had to
be a presumed permanent disability?" Dr. Samson replied, "I think
last night."
Footnote 9:
In the one previous Board hearing that ended with a tie vote,
the Board stated that the tie vote affirmed the Director's
decision. In that case (Decision 93-12), the Board explained:
[A] tie vote . . . produces a circumstance
whereby the majority of the Board has not overturned the decision
of the Director of the Division. Similarly, the tied vote
establishes that [the employee] has not met his burden of proof of
establishing to a majority of the Board that the Director was in
error. While there is no statute or regulation specifying what
happens in the event of ties in Board decisions on appeals of this
nature, the common law assessment of decision-making by boards such
as this one holds that a tied vote results in the appealed-from
decision standing without reversal.
That proceeding involved a different claimant, and Stalnaker does
not claim that Williams was aware of the "tie affirms"rule when
the six-person Board conducted the June 1994 hearing.
Footnote 10:
We review awards of attorney's fees for abuse of discretion.
See Cook Inlet Pipe Line Co. v. Alaska Pub. Utils. Comm'n, 836 P.2d
343, 348 (Alaska 1992); Tesoro Alaska Petroleum Co. v. Kenai Pipe
Line Co., 746 P.2d 896, 907 (Alaska 1987). We will find an abuse
of discretion only "when we are left with a definite and firm
conviction, after reviewing the whole record, that the trial court
erred in its ruling." Peter Pan Seafoods, Inc. v. Stepanoff, 650
P.2d 375, 378-79 (Alaska 1982).
Footnote 11:
Alaska Rule of Appellate Procedure 508(e) provides:
"Attorney's fees may be allowed in an amount to be determined by
the court. . . . If the court determines that an appeal or cross-
appeal is frivolous or that it has been brought simply for purposes
of delay, actual attorney's fees may be awarded to the appellee or
cross-appellee."
Footnote 12:
Although it is conceivable that the fee award encompasses some
services performed before the appeal to Judge Hunt began, Stalnaker
has not raised any such claim.
Footnote 13:
Judge Hunt originally awarded attorney's fees of $11,480 --
one hundred percent of Williams's counsel's claimed actual fees.
After considering Stalnaker's motion for reconsideration, Judge
Hunt modified her order, stating, "[t]he court in its discretion
finds that 86% of actual fees is reasonable."
Footnote 14:
The author of this opinion believes that Appellate Rule 508(e)
contemplates partial fees and that an award of eighty-six percent,
while undeniably "partial,"is excessive absent the existence of
circumstances distinguishing this case from routine appeals from
most administrative decisions. Ninety-nine percent is also
"partial,"and would be equally justified by the rationale of the
court's decision on this issue. Nothing indicates that Stalnaker
litigated in bad faith. He raised legitimate issues of potential
merit. Although Civil Rule 82 does not govern such awards, recent
amendments to that rule suggest an analytical structure that
appears equally applicable to fees incurred on appeal.
This case does not fall within the exception to Appellate
Rule 508 for workers' compensation appeals or within the court-
created exception for public-interest litigation. Such a
substantial award is also contrary to our own practice, in which we
routinely apply Rule 508 to award fees to private parties
prevailing in our court. Our awards, which typically do not exceed
$1,000, are usually less, and often much less, than about twenty-
five percent of the prevailing parties' actual fees.
Although PERB and workers' compensation claims are
similar, Rule 508(g) expressly treats workers' compensation claims
differently. Perhaps we should amend Rule 508, but its unamended
language does not warrant this award.
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