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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Lowell v. Hayes (07/22/2005) sp-5924

Lowell v. Hayes (07/22/2005) sp-5924

     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,


) Supreme Court No. S- 10967
Appellant, )
) Superior Court No.
v. ) 4FA-01-2327 CI
JAMES C. HAYES, in his personal ) O P I N I O N
and in his capacity as Mayor of the )
City of Fairbanks, HERBERT P. ) [No. 5924 - July 22, 2005]
KUSS, in his personal capacity, and in )
his official capacity as the City )
Attorney for the City of Fairbanks, )
Alaska, and the CITY OF )
FAIRBANKS, an Alaskan Municipal )
Corporation, )
Appellees. )
          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Mary E. Greene, Judge.

          Appearances:  Michael J. Walleri, Law Offices
          of   Michael   J.  Walleri,  Fairbanks,   for
          Appellant.   Aimee  A.  Oravec,  Winfree  Law
          Office, APC, Fairbanks, for Appellees.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          CARPENETI, Justice.

          Don Lowell sued the City of Fairbanks (the city), James
Hayes, and Herbert Kuss for defamation and violation of his civil
rights.   He  sought  actual and punitive  damages,  as  well  as
declaratory  relief.   The  superior court  dismissed  his  civil
rights claim and his request for declaratory judgment and granted
summary  judgment  to  defendants on the defamation  claim.   The
court then awarded defendants enhanced attorneys fees under Rules
68 and 37.  We affirm all of the superior courts rulings.
     A.   Facts
          Former  Fairbanks-North  Star Borough  assemblyman  Don
Lowell took part in a petition effort to consolidate the City  of
Fairbanks and Fairbanks-North Star Borough governments.   In  his
capacity  as  a member of the consolidation committee  formed  to
further  the  consolidation  plan,  Lowell  appeared  before  the
borough assembly and city council, and was featured in local news
          The Alaska Administrative Code, 3 AAC 110.900, requires
consultation  between  petition sponsors  and  officials  of  the
affected governmental entities:
          (a) A petition for incorporation, annexation,
          merger,  or  consolidation  must  include   a
          practical plan that demonstrates the capacity
          of   the   municipal  government  to   extend
          essential city or essential borough  services
          into the territory proposed for change in the
          shortest practicable time after the effective
          date of the proposed change. . . .
          (b)  Each  petition must include a  practical
          plan  for the assumption of all relevant  and
          appropriate   powers,  duties,  rights,   and
          functions presently exercised by an  existing
          borough,  city,  unorganized borough  service
          area, and other appropriate entity located in
          the  territory proposed for change. The  plan
          must  be  prepared in consultation  with  the
          officials of each existing borough, city  and
          unorganized borough service area. . . .
          c)  Each  petition must include  a  practical
          plan for the transfer and integration of  all
          relevant    and   appropriate   assets    and
          liabilities  of  an existing  borough,  city,
          unorganized borough service area,  and  other
          entity located in the territory proposed  for
          change.    The  plan  must  be  prepared   in
          consultation  with  the  officials  of   each
          existing   borough,  city,  and   unorganized
          borough service area . . . .
(Emphasis added.)
          As   Lowell   notes,  nothing  in  the   code   defines
consultation,  nor  does  it  specify  with  which  officials   a
consolidation  planner  must  consult.   According   to   Lowell,
consolidation petitions are generally submitted to the  State  of
Alaska  Local Boundary Commission (LBC) with affidavits attesting
to  the fact that the plan was developed after consultation  with
municipal officials of all the affected municipal governments.
          In May 1998 Lowell and Juanita Helms, another member of
the  consolidation committee, discussed consolidation with Hayes,
the mayor of Fairbanks.  Lowell and Helms asked for permission to
discuss  consolidation-related issues with the  citys  staff  and
department  heads,  including Kuss,  the  city  attorney.   Hayes
agreed  to  this  request, and wrote a memorandum  to  the  citys
department   heads,   directing  them  to  cooperate   with   the
consolidation committee.  He also notified Kuss in person.
          Lowell did not meet with the city department heads,  or
at  least  the ones notified by Hayes.  According to  Lowell,  he
instead met with certain lower-level city officials and staff  to
discuss  consolidation, and obtained several documents  from  the
City  Clerks office.  Helms also met with various city officials,
although she did so only in the context of a mayoral campaign and
service  as director of a volunteer police organization, and  not
specifically for the purpose of planning consolidation.
          In  October  1998  Lowell filed a  draft  consolidation
petition  with  the LBC.  Lowell had given a copy of  this  draft
petition  to  Hayes in August of that year with  a  cover  letter
requesting informal review and constructive criticism.  Hayes did
not  recall  receiving  the  draft petition,  but  it  apparently
included  unsigned copies of Lowells affidavit and  other  signed
submissions  to  the  LBC, to the effect that  city  and  borough
officials  were  consulted during development of  the  transition
plan petition.
          At  a November 1998 city council meeting, concerns were
raised that consolidation committee members had not met with city
department heads or council members.  Council members asked  Kuss
to contact the LBC to try to ensure that, before a final petition
was  approved,  Lowell  would indeed consult  with  the  City  as
required.   The following month, Kuss informed Dan  Bockhorst,  a
staff member to the LBC, of the Citys concern that, based on  the
language   of   Mr.  Lowells  proposed  affidavit  and   petition
paperwork, the LBC might be misled as to the extent of the  Citys
involvement  in or agreement with the substance of  the  proposed
petition.   After  Kuss explained to Bockhorst  that  Lowell  had
formulated  the  transition plan without input or  critique  from
City officials and department heads, Kuss asked Bockhorst whether
criminal perjury charges could apply.  Although Kuss insists that
he  never  actually threatened Lowell with prosecution, Bockhorst
did inform Lowell of the substance of this discussion.
          Lowell  appeared  at  a  September  1999  city  council
meeting,  and  read a statement into the record.   He  noted  the
complaints that the Consolidation Committee did not meet with the
Council   and  all  city  department  heads  in  developing   the
transition  portion of the plan.  Lowell admitted that  this  was
because  we found that was not necessary, and explained  that  we
obtained  most of the petition-related data including information
in  the transition plan from public documents and from some  city
and  borough staff.  He also noted that he had submitted a  draft
petition  for  constructive criticism, and that the borough,  but
not  the city, had responded with comments.  Lowell insisted that
members of the consolidation committee would still be willing  to
meet with the council to resolve any concerns they may have.
          Lowell submitted his final version of the consolidation
petition  to  Hayes on May 18, 2000.  According to Hayes,  Lowell
refused  to  answer  questions  about  certain  elements  of  the
proposed  consolidation,  did not deny  that  he  had  failed  to
consult  with  the City in formulating the transition  plan,  and
indicated that working with the City was unimportant, because the
LBC   would  refer  his  petition  regardless  of  his  lack   of
consultation.   Lowell allegedly implied that he  had  an  inside
line  with  the LBC and that he was not required to consult  with
the  City because the LBC would do whatever [Lowell] wanted  with
respect to the consolidation issue.
          The  city  filed  with the LBC in  July  2000  a  brief
opposing  consolidation,  and an affidavit  from  Hayes  alleging
that  Lowell  had failed to consult with city officials.   Lowell
submitted  a  response brief in which he explained  that  he  had
planned  to  meet with City department heads and  with  the  City
Council  on  the transition plan, but instead found most  of  the
required  information  from  public  records  and  discussed  the
transition plan with some city personnel by phone or visit  where
questions  arose.   Lowells response  also  stated  that  he  had
provided  Mayor  Hayes  with a draft copy of  the  full  petition
requesting City review for correction and constructive criticism.
Lowell  furnished a copy of the relevant parts of this  brief  to
          The LBC apparently determined that Lowells petition was
adequate  for  submission to the city and borough  voters  for  a
special  election on the consolidation issue.  The  election  was
held  on  August 28, 2001, and the voters rejected the  proposal.
The  following day, Hayes sent a letter to the Chair of the  LBC.
Hayes  mentioned that Lowell falsely claimed, by affidavit,  that
the petition plan was developed in consultation with officials of
municipal  governments  yet personally admitted to  me  that  his
claim   was   untrue.   Hayes  suggested  that  [a]   number   of
improvements  should  be made to prevent a reoccurrence  of  this
type  of  flawed  petition process, including  the  adoption  and
enforcement of [r]egulations that provide sanctions for  behavior
like Lowells.  Copies of this letter were apparently forwarded to
the city council, local legislators, and a local newspaper.
          Soon  after,  Lowells  attorney wrote  to  Hayes.   His
letter  noted  that  by  accusing Lowell  of  filing  a  perjured
affidavit,  Hayes had engaged in libel per se.  The  letter  also
accused  a  city attorney of threatening criminal action  against
Lowell in violation of his civil rights.  The letter warned  that
a  lawsuit was imminent if Hayes failed to apologize and  correct
his misquotes of Lowells affidavits.  In the weeks that followed,
Hayes  and  Kuss wrote several letters to Lowells  attorney,  re-
alleging their assertions that Lowell had falsely claimed to have
consulted with city officials.  These letters were circulated  to
and excerpted in the local press.
     B.   Proceedings
          Lowell filed suit against the defendants on October  8,
2001  seeking  actual  and punitive damages  for  defamation  and
violation  of  his  civil right to petition the  government.   An
amended complaint filed on December 3, 2001 added a request for a
declaratory  judgment that the defendants violated Lowells  civil
rights.   On  March  15,  2002  the superior  court  granted  the
defendants  Civil Rule 12(b)(6) motion to dismiss  Lowells  claim
for violation of his civil rights.  Lowell filed a second amended
complaint  on  May 28, 2002, in which he requested a  declaratory
judgment that the defendants had falsely accused him of perjury.
          As   part  of  the  pre-trial  discovery  process,  the
defendants submitted to Lowell a request for an admission that he
was  a  public  figure  with respect to the consolidation  issue.
Lowells  only response was Deny.  The defendants then  moved  for
summary  judgment  on the issue of whether Lowell  was  a  public
figure.   The  superior court rejected Lowells arguments  against
the  motion,1  held that as a matter of law Lowell  is  a  public
figure  for  purposes  of  this  controversy,  and  granted   the
defendants motion on August 1, 2002.2  The court then imposed  on
Lowell the expenses incurred by the defendants in litigating  the
motion, pursuant to the defendants Civil Rule 37 motion.
          On  November  14, 2002 the superior court  granted  the
defendants  Rule  12(b)(6) motion to dismiss  as  non-justiciable
Lowells requests for declaratory relief.
          On  December  3, 2002 the court granted the  defendants
motion  for summary judgment on Lowells defamation claim  in  its
entirety, finding that as a matter of law the defendants did  not
publish their statements with actual malice.  Shortly thereafter,
the superior court dismissed with prejudice all claims brought or
which could have been brought by Lowell against the defendants.
            The defendants had served Lowell with a Civil Rule 68
Offer  of Judgment several months after he filed his claim.   The
defendants had proposed, without admitting any fault or liability
of  any  kind,  that  a  $1.00 judgment be entered  against  each
individual  defendant for Lowells defamation claim,  and  that  a
$1.00 judgment be entered against the defendants collectively for
Lowells  civil  rights  claim.  That is, the  defendants  offered
Lowell  a  total  of four dollars to settle the lawsuit.   Lowell
rejected the offer, and instead offered to settle the whole  case
for  $0  and  a  written apology signed by Hayes and  Kuss.   The
defendants  rejected this offer.  Following the  superior  courts
entry of final judgment in their favor, the defendants moved  for
and  were  awarded attorneys fees and costs in excess of $40,000.
Lowell has appealed each of these decisions.
            In  reviewing a grant of summary judgment, we examine
whether  a  genuine  issue of material fact existed  to  preclude
judgment  as  a  matter  of law, drawing all  reasonable  factual
inferences  in favor of the non-moving party.3  In an action  for
defamation brought by a public figure, we will reverse a grant of
          summary judgment for the defendant if there is any genuine
factual question that the defendant entertained serious doubts as
to the truth of his statements.4
          We review dismissals pursuant to Civil Rule 12(b)(6) de
novo,  construing the dismissed complaint liberally, and assuming
the truth of all facts it alleges.5  Rule 12(b)(6) dismissals are
viewed  with  disfavor and should only be  granted  on  the  rare
occasion  where  it appears beyond doubt that the  plaintiff  can
prove no set of facts in support of the claims that would entitle
the plaintiff to relief.6
          In light of the significant role of judicial discretion
in  the  administration of declaratory judgment, we will  reverse
the  dismissal of a declaratory judgment action that is based  on
prudential  grounds  only when we find that  the  superior  court
abused its discretion.7
          We  review  de  novo those exceptions to Rule  37(c)(2)
sanctions that raise legal questions.8  We review for clear error
those  exceptions to Rule 37(c)(2) sanctions that rely on factual
          Whether  Rule  68 is applicable to a given  case  is  a
question  of law.10  Where Rule 68 applies, we review  the  lower
courts  determination of the prevailing party11  and  the  amount
awarded12 for abuse of discretion.

     A.   The Superior Court Properly Granted Summary Judgment on
          Lowells Defamation Claim.
          Under  the First Amendment of the U.S. Constitution,  a
public  figure can win damages for defamation only where  he  can
prove  that  the defendant published the defamatory statement  at
issue  with  actual malice.13  Prior to granting  the  defendants
motion for summary judgment, the superior court had determined as
a  matter of law that Lowell was a public figure for purposes  of
the  events surrounding his consolidation petition, and therefore
this  lawsuit.   Lowell  does not challenge  this  conclusion  on
appeal.   The  issue on appeal is thus whether, as  the  superior
court  concluded, Lowell failed to raise a genuine issue of  fact
regarding  the defendants actual malice that could have precluded
          Actual  malice  involves a subjective  inquiry  into  a
speakers   intent   specifically,  whether  he  knew   that   his
defamatory  statement  was  false or recklessly  disregarded  the
possibility of its falsity.14  A plaintiff must prove by clear and
convincing  evidence that the declarant acted with  knowledge  of
the statements falsity or in reckless disregard of the statements
truth   or  falsity.15   To  show  that  a  declarant  recklessly
disregarded  the  truth  or  falsity  of  published  material,  a
plaintiff  must  show  that  the declarant   entertained  serious
doubts  as  to  the truth of the publication.  16   A  defendants
[f]ailure  to  make a prior investigation into  the  accuracy  of
published  statements  does  not, by  itself,  constitute  actual
malice.17  Neither does a defendants incorrect usage of a key term
          or word whose meaning is reasonably disputed.18  Thus, [t]he
actual malice standard is a difficult one to satisfy.19
          Nevertheless,  we  have refused to  adopt  the  federal
standard  for summary judgment on defamation claims, under  which
summary judgment is granted unless the plaintiff has shown actual
malice  by clear and convincing evidence.20  Concluding that  the
federal standard  intrudes into the province of the jury,  21  we
have   decline[d]  to  incorporate  the  applicable   substantive
evidentiary standard into this states summary
judgment  practice.22  Thus, it is somewhat harder  for  a  libel
defendant  to  win summary judgment in our state courts  than  in
federal courts.23
          A  finding that a defendant lacked actual malice may or
may  not  be  based  on  his own testimony;  a  defendant  cannot
automatically insure a favorable verdict by
testifying  that he published with a belief that  the  statements
were true.24  But we have held that such testimony will suffice to
counter  a  claim  of actual malice where (1) the  plaintiff  has
failed to present conflicting evidence, and (2) the circumstances
do  not  indicate  that  the  statement  was  fabricated  by  the
defendant,  . . . the product of his imagination,  .  .  .  based
wholly  on an unverified anonymous telephone call . . .  [or]  so
inherently  improbable that only a reckless man  would  have  put
[it] in circulation. 25
          In  this  case,  as  the superior  court  noted,  [t]he
ultimate   dispute  between  the  parties  revolves  around   the
definition of the word consultation.   But because the  test  for
actual malice is eminently subjective, the court correctly stated
that  it  does not matter what a court might determine the  legal
definition of consultation in 3 AAC 110.900 to be, so long as the
defendants  concept of the term fell within a standard dictionary
definition.   The  defendants  presented  affidavits  and   other
testimonial evidence that they actually believed that Lowell  had
failed  to  consult with city officials as required  by  law,  at
least as far as the defendants understood this requirement.
          Lowell  indicated  to Hayes that he  intended  to  meet
personally with Hayes, Kuss, and various city department heads to
discuss his consolidation petition.  Lowell does not dispute this
fact.  Hayes testified that his understanding was that they  were
actually going to sit down, discuss it, work it, find out.  Hayes
later discovered that Lowell had in fact not met with any of  the
city department heads or chief officials, a fact that Lowell also
did  not dispute.26  The superior court thus correctly held  that
the  defendants evidence amounted to a prima facie  showing  that
their   statements   were  not  fabricated,   based   on   wholly
unverifiable  and  suspect  sources,  or  inherently  improbable.
Lowell was therefore required to present conflicting evidence  in
          In opposing the defendants motion for summary judgment,
Lowell  argued that after he filed his petition, but  before  the
defendants published their defamatory statements, the  Mayor  had
actual  knowledge  that  consultation had  taken  place.   Lowell
presented  evidence that he and Juanita Helms consulted  in  some
way with city officials, but the superior court held that Lowells
          evidence did not suffice to show that the defendants actually
knew,  or should have known, of his relatively low-level,  vague,
and indirect contacts with the city bureaucracy.  Lowell had also
submitted a draft of his consolidation petition to Hayes and  the
city  for  comments.  But the superior court felt that while  the
defendants  were certainly aware that Lowell had  submitted  this
draft,   Lowell   offered  no  evidence   that   the   defendants
subjectively felt that submitting a draft constituted consulting,
particularly in light of Hayess testimony that he had a policy of
not making official comments on the petition until it was finally
filed.   The superior court thus concluded that Lowell  presented
no evidence that the defendants statements were made in bad faith
or  with  serious  doubt as to the truth of  their  content.   We
          Lowell argues that he offered evidence that, during LBC
hearings  on his petition, the city put forward allegations  that
the   petition   contained  false  statements  similar   to   the
allegations at issue in this case.  Lowells response brief to the
LBC  explained, along essentially the same lines as his briefings
in  this  lawsuit, that he had met with lower city officials  and
submitted  a  draft  petition to Hayes.  As Lowell  reminded  the
superior court, the LBC subsequently found that the Petition  for
Consolidation  was  sufficient and ordered  an  election.   Thus,
Lowell  reasons,  the  LBC  implicitly  determined  that  he  had
adequately  consulted  with  city  officials.   And  since  Hayes
received  a copy of the relevant parts of the response,  and  the
defendants  were  obviously aware of the  LBCs  decision,  Lowell
argues  that  they  must  have known  that  Lowell  had  in  fact
fulfilled   the  consultation  requirement,  or  at   least   one
reasonable interpretation of it.
          Notably,  however, Lowells response brief  to  the  LBC
never  affirmatively used the term consult, and never  explicitly
stated  that Lowells low-level meetings, research, and submission
of  draft  proposals constituted consultation.   Similarly,  even
Lowell  admits that his subsequent affidavit to the LBC  did  not
use  the word consultation or any derivation thereof.  And though
the  LBC  submitted Lowells petition to the voters,  it  did  not
define  consultation,  or expressly rule on  whether  Lowell  had
actually and adequately consulted.  The defendants also presented
evidence that they believed that Lowell had an inside line  or  a
well-placed  friend at the LBC, and that the  LBC  would  approve
[Lowells] consolidation proposal regardless of the fact  that  he
did  not comply with the regulations regarding consultation  with
City  staff.   The  defendants thus had  reasonable  grounds  for
thinking that Lowell did not regard his actions to be a  form  of
consultation  but  instead intended to  use  them  to  avoid  the
consultation  requirement.   In  sum,  the  content  of   Lowells
response  brief to the LBC and the LBCs decision to  approve  the
consolidation  petition do not constitute evidence rebutting  the
defendants testimony that their statements were not fabricated or
inherently  improbable.   Accordingly,  we  affirm  the  superior
courts  decision  to  grant  the defendants  motion  for  summary
judgment on Lowells defamation claim.
     B.   The  Superior  Court Properly Dismissed  Lowells  State
          Constitutional Claims.
            Article  I,  Section  6  of the  Alaska  Constitution
provides:  The right of the people peaceably to assemble, and  to
petition the government shall never be abridged.  Lowell  claims,
as  he  did  before  the  superior  court,  that  the  defendants
attempt[ed]  to inhibit and otherwise limit the free exercise  of
[his] right to petition the government in a manner prescribed  by
law.   According  to  Lowell,  by  gratuitously  attack[ing  his]
character  and  threatening him with prosecution, the  defendants
intended  to  warn other like-minded citizens of the  dangers  of
petitioning  the government.  Lowell insists that he should  have
received  monetary and declarative relief on  this  ground.   The
superior court dismissed this cause of action.
          Federal  courts allow direct tort actions for violation
of  certain  provisions  of the federal  constitution,  but  only
reluctantly,  where no alternative remedies are available.27   We
have  never recognized a Bivens-type private right of action  for
constitutional  torts under the Alaska Constitution.28   We  have
stated that we will not allow a constitutional claim for damages,
except  in  cases  of  flagrant constitutional  violations  where
little  or  no alternative remedies are available.29   This  case
meets neither requirement.
          As  the  superior court noted, Lowell does  not  allege
that  he  was actually prevented from petitioning the government.
Lowell was quite clearly afforded the right of petition; as  even
he admits, he did in fact submit a petition, and his petition was
offered to the voters.  Lowell does not allege any direct  action
on the part of the defendants to thwart his constitutional right.
In  fact,  the  defendants  actions only  occurred  after  Lowell
submitted  his petition.  Lowell alleges only that the defendants
intended  to  discourage future petitioners like  himself.   Even
assuming   that   all  of  Lowells  assertions  are   true,   the
constitutional violation he alleges, if there is one at  all,  is
certainly  not flagrant.  It amounts, at most, to an indirect  or
tacit  threat  to  violate  others constitutional  rights  at  an
undetermined and uncertain point in the future.30
          Moreover, the availability of alternative remedies  for
the  defendants actions is evident, as the superior court  noted.
Lowell  sued  the defendants for defamation.  Lowell argues  that
the  trial  court failed to consider the threats and intimidation
of  criminal  prosecution by Kuss and Hayes, and  rather  focused
only  on  the  elements  of the complaint that  mirrored  Lowells
defamation  claims.  To the extent that they  were  not  intended
merely  to  dissuade  future petitioners  (as  discussed  in  the
preceding paragraph), the defendants threats never blossomed into
an  actual prosecution of Lowell.31  They were at most, as Lowell
suggests,  part  of  the overall campaign by  the  defendants  to
discredit him.  They were thus more properly considered a form of
defamatory conduct, for which the appropriate remedy was  Lowells
non-constitutional cause of action.
          Lowell  further  argues  that even  if  his  claim  for
defamation was an adequate alternative remedy to a constitutional
cause  of  action, it was dismissed.  Assuming this  was  proper,
Lowell  protests  that  he no longer has  an  alternative  remedy
          available.  This argument is facially untenable, and Lowell cites
no authority to support it.  Surely the inadequacy of alternative
remedies for alleged constitutional violations cannot be measured
per  se  by the dismissal or defeat of those remedies.   If  that
were so, the perverse result would be that the more frivolous  or
unjustifiable  a  claim,  the more  it  would  merit  an  implied
constitutional  cause  of action for damages.   As  we  have  not
adopted  Bivens and its progeny,32 we have clearly not  expressed
any support for the broad proposition advanced by Lowell.  At the
time the superior court dismissed Lowells constitutional cause of
action, his defamation cause of action was still pending.  Lowell
had  properly availed himself of this alternative remedy, and the
superior court properly dismissed his implied constitutional tort
cause of action.
     C.   The Superior Court Properly Dismissed Lowells Request for
          Declaratory Relief on His Defamation Claim.
          A.    The superior court dismissed Lowells requests for
declaratory  relief,  holding them to be non-justiciable  because
the  grant  of  declaratory  relief would  not  be  a  final  and
conclusive  judgment and/or would not serve a useful  purpose  in
light  of  the  courts earlier dismissal of Lowells  state  civil
rights claim.  Lowell appeals this decision.  He argues that  the
superior  court improperly dismissed his request for  declaratory
relief as to his defamation claim, because the U.S. Supreme Court
has never applied its actual malice standard to defamation claims
brought  by public figures for relief other than damages; because
a  declaratory  judgment for Lowell would counter the  aspersions
respecting his character and reputation, which money damages  may
be  limited  to  ameliorate; because application  of  the  actual
malice  standard to Lowells defamation claims may render illusory
his  other  avenues  of  relief,  making  declaratory  relief   a
necessary  substitute;  and  because despite  the  constitutional
value   in   free  speech,  there  should  be  no  constitutional
protection for public officials false statements of fact.
          1.   Dismissal of Lowells requested declaratory  relief
               was within the superior courts discretion.
          Alaska  Statute 22.10.020(g) (the Declaratory  Judgment
Act)  grants  to  superior courts the power to issue  declaratory
judgments in cases of actual controversy.33  It states in relevant
part: In case of an actual controversy in the state, the superior
court,  upon  the filing of an appropriate pleading, may  declare
the rights and legal relations of an interested party seeking the
declaration, whether or not further relief is or could be sought.
And Alaska Rule of Civil Procedure 57 states that [t]he procedure
for obtaining a declaratory judgment pursuant to statute shall be
in  accordance  with [the civil] rules. . . .  The  existence  of
another  adequate  remedy  does  not  preclude  a  judgment   for
declaratory relief in cases where it is appropriate.34
          A  complaint asking for declaratory relief must  allege
one or more facts demonstrating that the plaintiff is entitled to
a  declaratory  judgment.35  We have explained  that  declaratory
judgments are rendered to clarify and settle legal relations, and
to  terminate and afford relief from the uncertainty, insecurity,
and  controversy giving rise to the proceeding.36  A court should
          decline to render declaratory relief when neither of these
results can be accomplished.37
          We  have  noted  that  Civil  Rule  57  is  practically
identical to its federal counterpart, and that the formulation of
Alaskas declaratory judgment provision makes it apparent that our
legislature  intended  to  parallel  the  text  of  the   federal
Declaratory  Judgment  Act.38  Because  the  Alaska  and  federal
declaratory   judgment   acts  and  procedural   provisions   are
substantially similar, we consider federal precedent pertinent in
our determination of declaratory judgment issues.39
          The   language   of  AS  22.10.020(g)   suggests   that
declaratory  relief  may be allowed in any actual  controversy.40
But  commentary suggests that declaratory relief is  a  tool  for
resolving  controversies that [have] not  reached  the  stage  at
which  either  party may seek a coercive remedy or  in  cases  in
which a party who could sue for coercive relief has not yet  done
so.41  That is, declaratory relief is generally used to settle  a
controversy that has yet to ripen into violations of law,42 or to
afford  one  threatened  with  liability  an  early  adjudication
without  waiting until an adversary should see fit  to  begin  an
action after the damage has accrued.43
          In  Wilton  v.  Seven Falls Co.,44  the  United  States
Supreme Court declared that the Federal Declaratory Judgment  Act
invests federal courts with unique and substantial discretion  in
deciding  whether to declare the rights of litigants.45   Federal
Courts   may declare the rights and other legal relations of  any
interested   party  seeking  such  declaration.  46  The   Alaska
Declaratory  Judgment  Act  employs  language  identical  to  the
Federal  Act  and  we  have  similarly  interpreted  the   Alaska
Declaratory Judgment Act such that Alaskan superior  courts   may
declare  the  rights and legal relations of an  interested  party
seeking the declaration.47  Declaratory relief is a nonobligatory
remedy  and  the  Federal  Declaratory Judgment  Act  created  an
opportunity,  rather  than a duty for  federal  courts  to  grant
relief  to  qualifying litigants.48  In the declaratory  judgment
context,  the  Court  noted, the normal  principle  that  federal
courts  should adjudicate claims within their jurisdiction yields
to    considerations   of   practicality   and   wise    judicial
administration.49   A court that know[s] at the  commencement  of
litigation  that it will exercise its broad statutory  discretion
to  decline  declaratory relief, need not  undertake  a  wasteful
expenditure  of  judicial resources in  the  futile  exercise  of
hearing a case on the merits first.50
          As  occurred in Wilton, federal courts often refuse  to
hear  declaratory  judgment claims because parallel  proceedings,
particularly  those  in  other jurisdictions,  present  the  same
issues.51  Similarly, where the same proceeding offers a plaintiff
alternative remedies, though the existence of other remedies does
not  preclude  declaratory judgment per  se,  the  court  in  its
discretion  properly  may  refuse  declaratory  relief   if   the
alternative remedy is better or more effective.52
          As  explained above, a trial court has wide  discretion
to   determine   that  a  request  for  declaratory   relief   is
inappropriate.  Lowells defamation claim arose out of  statements
          that the defendants had already made, not that they were likely
to  make or threatened to make.  Thus, by the time Lowell brought
suit,  the  dispute at issue had already ripened into an  alleged
actual  violation of law.  The superior court therefore  did  not
abuse  its  discretion in determining that the coercive  remedies
available  to  Lowell  would  be more  effective,  or  final  and
          2.   The  actual  malice standard applies to defamation
               claims for declaratory relief.
          We can quickly dispose of Lowells argument that because
the  actual  malice  standard does  not  apply  to  requests  for
declaratory remedies, declaratory relief would in fact be a  more
effective  remedy,  or  his  only remedy  if  we  affirm  summary
judgment.  It is true, as Lowell suggests, that in both New  York
Times  Co.  v. Sullivan53 and Gertz v. Robert Welch,  Inc.54  the
Supreme  Court  required  actual malice in  claims  for  coercive
relief  but  did  not  address declaratory relief.   However,  an
action  for  declaratory relief is procedural and  remedial,  not
substantive.55  Declaratory judgments vindicate substantive rights
they  do not create them.56  To the extent that the law offers  a
public figure no substantive right to seek coercive remedies  for
non-malicious  defamation, it also offers him no  right  to  seek
declaratory relief for that defamation.57
          There  is  also  a  strong  public  policy  ground  for
rejecting Lowells argument. In New York Times, the Supreme  Court
emphasized the profound national commitment to the principle that
debate  on  public  issues  should be  uninhibited,  robust,  and
wide-open.58  Such debate would be intolerably curtailed  by  the
self-censorship that inevitably arises under the common law rules
of  defamation  (particularly the rule that defendants  bear  the
burden  of  proving  the  truth  of  their  statements),  because
erroneous  statement is inevitable in free debate.59   The  vital
logic  underpinning New York Times, Gertz, and many  other  First
Amendment  cases  is that erroneous but non-malicious  speech  on
public issues must be protected if the freedoms of expression are
to have the breathing space that they need to survive.60
          The  reasoning of New York Times should apply  even  to
claims  that seek only declaratory relief.  While not  presenting
the  threat of monetary damages, they nonetheless impose the same
litigation costs and burdens on a defendant, as well as the  same
threat  of  reputational harm.  Allowing actions for  declaratory
judgments to proceed without the requirement of actual malice  is
likely  to intolerably chill free speech and public debate.   The
actual  malice  standard should therefore apply to  any  form  of
defamation claim brought by a public figure.  In sum, where false
statements  of  fact regarding a public figure are  made  without
malicious intent, they are constitutionally protected and  should
not be considered grounds for any form of relief, declaratory  or

          3.   Declaratory  relief was not an appropriate  remedy
               for   any  alleged  criminal  prosecution  threats
               against Lowell.
          Lowell  also  argues that dismissal  of  his  plea  for
          declaratory judgment regarding his defamation claim was improper
because a declaratory judgment would clarify and settle the issue
of  whether the defendants are permitted to threaten Lowell  with
prosecution  for  his alleged perjury.  To the extent  that  this
argument is distinct from Lowells appeal of the dismissal of  his
state  constitutional claims, discussed above in  Part  IV.B,  we
reject it.
          Because  Alaskas  Declaratory  Judgment  Act  and   its
federal   counterpart  require  an  actual   controversy   as   a
prerequisite to granting declaratory relief, we have held that  a
trial  court  has  discretion  to  deny  such  relief  where   it
determines that a plaintiff lacks standing to sue, or  the  claim
lacks  ripeness.61   Based  on  considerations  of  standing   or
ripeness,  federal  courts are generally disinclined  to  provide
declaratory relief to foreclose a threat of prosecution unless it
is  reasonably clear and specific.62  The First Circuit has noted
that  just how clear the threat of prosecution needs to be  turns
very  much  on  the  facts  of the case and  on  a  sliding-scale
judgment  that  is very hard to calibrate.63  The court  noted  a
trend  toward  the  practical  approach  of  requiring  realistic
inferences that show a likelihood of prosecution.64
          Lowells assertion that he was, and still is, faced with
criminal  prosecution  is  apparently  based  entirely   on   the
allegations in his own complaint.  According to Lowell, Mr.  Kuss
.  . . threatened to bring criminal charges against Mr. Lowell in
a  conversation  with  Mr. Bockhorst, a staffer  with  the  Local
Boundary  Commission.   Mr. Hayes repeated  that  threat  in  his
letter  to  Kevin  Warring, by urging that  sanctions  should  be
applied  to  Mr. Lowell.  But Lowell offers no citations  to  the
record  to  support  this  claim, and  the  record  offers  ample
evidence  refuting  it.  Prior to the onset of  litigation,  Kuss
wrote  a  letter to Lowells attorney, insisting that  Lowell  had
mischaracterized  his  legal  discussions  with  Bockhorst.    An
affidavit  submitted  by  Kuss states:   At  no  time  during  my
conversation  with  Mr.  Bockhorst did  I  threaten  to  bring  a
criminal prosecution against Mr. Lowell because of the statements
in   his  proposed  October  1998  petition  and  affidavit.   An
affidavit submitted by Hayes states that the first time he  heard
of  any  threats to criminally prosecute Lowell was  when  Lowell
himself  mentioned  them in a meeting.  The superior  court  thus
acted,  to  be  sure, well within its discretion in  finding  any
alleged    criminal    prosecution   threats    against    Lowell
insufficiently  clear  and  specific  to  support  a  claim   for
declaratory relief.
     D.   The Superior Court Properly Imposed the Defendants Attorneys
          Fees and Sanctions Under Civil Rule 37(c) for Lowells Failure To
          Admit His Public Figure Status.
          Lowell  claims  that  the superior courts  decision  to
award  attorneys  fees  to the defendants under  Rule  37(c)  was
          Civil Rule 37 states in relevant part:
          If  a party fails to admit . . . the truth of  any
          matter  as  requested under Rule 36,  and  if  the
          party  requesting the admissions thereafter proves
          .  .  .  the  truth of the matter, the  requesting
          party   may  apply  to  the  court  for  an  order
          requiring  the  other party to pay the  reasonable
          expenses  incurred in making that proof, including
          reasonable  attorneys fees. The court  shall  make
          the order unless it finds that (A) the request was
          held objectionable pursuant to Rule 36(a), or  (B)
          the   admission  sought  was  of  no   substantial
          importance, or (C) the party failing to admit  had
          reasonable ground to believe that the party  might
          prevail on the matter, or (D) there was other good
          reason for the failure to admit.[65]
          Thus,  where  a  party fails to admit the  truth  of  a
matter,  and the opposing party requests Rule 37(c)(2) sanctions,
they are mandatory if none of the four listed exceptions applies.66
Since  the superior court found that Lowell had failed  to  admit
the  truth  that he was a public figure, the court had no  choice
but to sanction Lowell, unless a Rule 37(c)(2) exception applied.
Lowells briefings suggest, though without explicitly stating,  an
argument under exception (A).67
          In  order  to  avoid  Rule  37(c)(2)s  sanctions  under
Exception (A) of the rule, the superior court must find that  the
requested  admission  was  held objectionable  pursuant  to  Rule
36(a).   According to Lowell, the defendants request concerned  a
question of law and fact, and requests for admissions of law  and
fact   are   impermissible  under  Alaskas   discovery   rules.68
Therefore, he reasons, the requested admission was objectionable,69
and  Rule 37(c)(2) penalties were inappropriate.  But it is  pure
questions of law, not mixed questions of law and fact,  that  are
generally considered improper matters for discovery.70  Where, as
here,  the  relevant facts are undisputed, [t]he nearly universal
rule  is that determination of public figure status is a question
of  law for the court to determine.71  Thus, Lowells argument has
some  legal merit, although it misstates several aspects  of  the
relevant  law, because the defendants request that  Lowell  admit
that he was a public figure was objectionable.
          But Lowells argument ignores the clear implications  of
Rule  37s  wording.  Rule 37(c)(2) does not except from sanctions
parties  who unilaterally determine that a request for  admission
is  objectionable;  it  excepts a request  actually  held  to  be
objectionable.  A request for admission can be held objectionable
only  by  a court of law.  At no point was the defendants request
that Lowell admit to being a public figure held objectionable  by
the  superior  court.   Exception (A) to Rule  37(c)(2)  is  thus
          On  a more general level, Lowell waived his opportunity
to  object  to the defendants request for admission.  Rule  36(a)
states that a request for admission is considered admitted by the
party upon which it is served, unless that party serves upon  the
party  requesting  the admission a written  answer  or  objection
addressed to the matter. . . .  If objection is made, the reasons
therefor shall be stated.  Nowhere does the record indicate  that
Lowell  objected to, or stated any reasons for objecting to,  the
defendants  request at the time he answered  it.   Lowell  simply
          responded Deny.  This response implied that Lowell did not object
to  the  legal validity of the defendants request for  admission,
and  intended  to  litigate  his  public  figure  status  on  the
substantive  merits.  And Lowell then proceeded to litigate  only
the  substantive issue of his status.  In his Partial  Opposition
to  the  defendants  motion for summary judgment  on  the  public
figure  issue,  Lowell  contested his public  figure  status  for
purposes of this case, but failed to object to the form or nature
of  the  requested  admission itself.   It  was  only  after  the
superior  court rejected this argument and considered sanctioning
Lowell  that  Lowell changed tack and argued that  the  requested
admission had been improper from the beginning.
          Alaskas  Rules  of  Civil Procedure  are  construed  to
further the speedy and inexpensive determination of every  action
and proceeding.72 In this spirit, Rule 36 is intended to expedite
litigation  through the elimination of uncontested issues,73  and
Rule 37 is obviously meant to encourage compliance with Rule  36.
Since   Lowell   clearly  failed  to  abide  by  the   procedural
requirements  of  Rule  36(a),  he  cannot  avoid  Rule  37(c)(2)
sanctions,  even if he later discovered a legal basis  for  doing
          E.   The  Trial  Court Properly Awarded the  Defendants
               Enhanced Attorneys Fees.
          Lowell challenges the superior courts decision to award
the  defendants Rule 68 attorneys fees.74  Rule 68, as applicable
to cases filed after August 7, 1997, states in relevant part:
          (a) [Either party] may serve upon the adverse
          party  an  offer  to  allow  judgment  to  be
          entered in complete satisfaction of the claim
          for  the  money or property or to the  effect
          specified in the offer . . . .
          (b)  If the judgment finally rendered by  the
          court is at least 5 percent less favorable to
          the  offeree than the offer, or, if there are
          multiple defendants, at least 10 percent less
          favorable to the offeree than the offer,  the
          offeree  . . . shall pay all costs as allowed
          under   the   Civil  Rules  and   shall   pay
          reasonable  actual attorney fees incurred  by
          the  offeror from the date the offer was made
          as follows:
               (1)  if  the offer was served  no  later
          than  60  days  after both parties  made  the
          disclosures  required by Civil Rule  26,  the
          offeree  shall pay 75 percent of the offerors
          reasonable actual attorney fees
          . . . .
          (c)   If   an  offeror  receives  costs   and
          reasonable   actual   attorney   fees   under
          paragraph   (b),   that  offeror   shall   be
          considered the prevailing party for  purposes
          of an award of attorney fees under Civil Rule
          1.   The defendants settlement offer was valid.
          Lowell  argues  that  because the  defendants  Rule  68
settlement  offer contained an express reservation  that  it  was
made  without admitting any fault or liability of any  kind,   it
did  not meet Rule 68s very specific requirement that the offeror
have  judgment  entered in complete satisfaction  of  the  claim.
But, Lowell offers no support for his interpretation of Rule  68,
and  the  general  rule  is that a Rule 68 settlement  offer  may
include language that the offer is not an admission of liability.75
Thus,  we  hold that the defendants offer was valid for  Rule  68
          2.   The superior court did not abuse its discretion in
               awarding Rule 68 fees to the defendants.
          Lowell  offers  two arguments as to  why  the  superior
court   abused  its  discretion.   First,  he  argues  that   the
defendants  judgment of zero dollars and no apology  was  clearly
not  more favorable than Lowells settlement offer of zero dollars
and an apology.  Second, Lowell suggests that defendants were not
entitled to Rule 68 fees because his offer to settle the case for
zero  dollars and an apology bettered the defendants  four-dollar
settlement offer.  We reject both of these arguments.
          In  regard to Lowells first argument, we note that  the
final  judgment was more favorable to the defendants than Lowells
offer because they did not have to apologize.  Lowell admits that
it  is  rather  obvious that he was primarily  interested  in  an
apology.   For him then to argue that the defendants did  not  do
better  at  trial because the apology is valueless,  or  that  it
might even have negative value as he suggests, is illogical.   We
need  not decide whether an apology is worth ten percent  of  the
judgment.  It is enough to observe that Lowells primary goal  was
an apology and that the defendants secured a judgment better than
his offer by not having to give one.77
          As  to Lowells second argument  that his offer bettered
the  defendants  offer  it is irrelevant.  Rule 68  requires  the
court to compare each individual offer to the final judgment, not
that it weigh parties offers against each other.  The purpose  of
Civil  Rule 68 is to encourage settlement in civil cases  and  to
avoid protracted litigation.78  The rule encourages settlement by
creating  an incentive for parties to accept offers that approach
their  own  estimation  of  what they might  secure  at  trial.79
Because Rule 68 requires only that the court compare the offer of
judgment against the judgment itself, Lowells second argument  is
          Because  the final judgment was in fact more  favorable
to the defendants than Lowells offer, we conclude the court acted
within  its  discretion.  Similarly, the superior court  did  not
abuse  its discretion in determining that its final judgment  was
more  than  ten  percent  less  favorable  to  Lowell  than   the
defendants  pre-trial offer to settle the case for  four  dollars
and  no apology.  The court thus did not abuse its discretion  in
awarding Rule 68 attorneys fees to the defendants.
          Because  Lowell  did  not  raise  a  genuine  issue  of
          material fact regarding defendants actual malice, we affirm the
award  of  summary judgment against him on his defamation  claim.
Because  this  case  presents neither a  flagrant  constitutional
violation nor  a situation where other remedies for any violation
do  not  exist, we affirm the superior courts denial  of  Lowells
implied  constitutional  tort  cause  of  action.   Because   the
superior  court  did not abuse its discretion in denying  Lowells
claim  for declaratory relief, the actual malice standard applies
to  defamation  claims  for declaratory relief,  and  declaratory
relief  was  not  an  appropriate remedy for threatened  criminal
prosecution against Lowell, the superior court properly dismissed
Lowells request for declaratory relief.  Because Civil Rule 37(c)
sanctions  and  attorneys fees may be imposed for  a  failure  to
admit  that  which  the  requesting party later  proves,  and  no
exceptions under the rule apply here, the superior court did  not
abuse  its  discretion in imposing sanctions and fees.   Finally,
because   defendants  valid  settlement  offer  which  was   more
favorable  to  the  defendants was not accepted  by  Lowell,  the
superior  court was within its discretion in awarding fees  under
Civil Rule 68.
          For  these  reasons,  we AFFIRM  the  decision  of  the
superior court in all respects.
     1    Lowell admitted that he had been a public figure in the
context of the Fairbanks City-Borough Consolidation issue between
April  1998 and August 28, 2001.  But following the consolidation
petitions election defeat on the latter date, Lowell claimed,  it
ceased  to be a public issue, and Lowell retired from any further
activities related to consolidation.  Lowell argued that a public
figure  ceases  to  be a public figure when the controversy  into
which he injects himself ceases to be a public controversy.

     2     Lowell  does not dispute the substantive determination
of this issue on appeal.

     3     Mt.  Juneau Enters., Inc. v. Juneau Empire,  891  P.2d
829, 834 (Alaska 1995).

     4    Id.

     5     Angnabooguk  v. State, Dept of Natural Res.,  26  P.3d
447, 451 (Alaska 2001).

     6    Id.

     7     Brause v. State, Dept of Health & Soc. Servs., 21 P.3d
357,  358 (Alaska 2001).  Lowell asserts that [i]n reviewing  the
trial   courts  exercise  of  discretion  to  grant   or   refuse
declaratory  relief,  the  appellate  court  may  substitute  its
judgment for that of the lower court.  Lowell cites Jefferson  v.
Asplund,  458  P.2d 995, 998 (Alaska 1969), in  support  of  this
assertion.   In  Jefferson  we  did  not  adopt  the  substituted
judgment  standard  of  review,  which  had  been  suggested   by
Professor  Moore.   Id. (citation omitted).   Rather,  we  merely
noted Moores proposed standard, and warned that we choose to make
no  comment  upon  the  merits of his thesis.   Id.   We  instead
stressed  the clearly significant role of judicial discretion  in
the declaratory process.  Id. at 997.

     8     Dobos  v.  Ingersoll, 9 P.3d 1020, 1026 (Alaska  2000)
(citing  Strong  Enters.,  Inc. v. Seaward,  980  P.2d  456,  458
(Alaska 1999)).

     9     Id. (citing Cockerham v. State, 933 P.2d 537, 539  n.9
(Alaska 1997)).

     10    Van Deusen v. Seavey, 53 P.3d 596, 603-4 (Alaska 2002).

     11    Glamann v. Kirk, 29 P.3d 255, 259 (Alaska 2001); Andrus
v. Lena, 975 P.2d 54, 58 (Alaska 1999).

     12    Van Deusen, 53 P.3d at 603 n.23.

     13     Mt.  Juneau Enters., Inc. v. Juneau Empire, 891  P.2d
829, 834-35 (Alaska 1995) (citing New York Times Co. v. Sullivan,
376 U.S. 254, 283 (1964), and Curtis Publg Co. v. Butts, 388 U.S.
130 (1967)).

     14     Id.,  891 P.2d at 834 (citing New York Times  Co.  v.
Sullivan, 376 U.S. 254, 283 (1964)).

     15    Moffat v. Brown, 751 P.2d 939, 941 (Alaska 1988).

     16     Mt.  Juneau,  891 P.2d at 838 (citing  St.  Amant  v.
Thompson, 390 U.S. 727 (1968)).

     17    Id. (citing Beckley Newspapers Corp. v. Hanks, 389 U.S.
81, 84-85 (1967)).

     18     Moffat,  751 P.2d at 945-46 (defendants reference  to
boycott  of abortion procedures by hospital nursing staff,  while
technically incorrect, was not malicious where defendant had been
told  that  the  nursing staff objected to abortionists  methods,
that  ever-increasing  number  of nurses  refused  to  assist  in
abortions,  and  that hospital was forced to obtain  nurses  from
other communities).

     19     Id. at 941.

     20    Id. at 943.

     21     Id.  at  944, quoting Dairy Stores, Inc. v.  Sentinel
Publg Co., 516 A.2d 220, 236 (N.J. 1986).

     22    Id. at 943.

     23    Id. at 944.

     24     Id.  at 942 (quoting St. Amant v. Thompson, 390  U.S.
727, 732 (1968)).

     25    Id. at 946 (quoting St. Amant, 390 U.S. at 732).

     26    Lowell and other members of the Consolidation Committee
consulted  instead  with various lower-level  city  officials  or
workers,  including  a police lieutenant, the  city  Director  of
Public Works, and the city Surveyor.

     27     Thoma v. Hickel, 947 P.2d 816, 824 n.5 (Alaska  1997)
(citing Bivens v. Six Unknown Named Agents of the Fed. Bureau  of
Narcotics, 403 U.S. 388 (1971)).

     28     Id.;  see  also Vest v. Schafer, 757  P.2d  588,  598
(Alaska  1988) (judiciary will not hold state liable for  damages
on  grounds that legislature enacted statute later invalidated as
unconstitutional);  Walt v. State, 751 P.2d  1345,  1353  (Alaska
1988)  (where  legislature has provided  administrative  remedial
system   court  does  not  address  availability  of  Bivens-type
action);  State  v.  Haley, 687 P.2d 305,  317-18  (Alaska  1984)
(where  there is statutory right of action court does  not  reach
availability of Bivens-type action); King v. Alaska  State  Hous.
Auth.,   633  P.2d  256,  259-61  (Alaska  1981)  (concern   over
penalizing  public duplicatively by awarding damages  for  rigged
bidding  constitutes  special  factor  counseling  hesitation  in
creating damages remedy under Bivens).

     29     Dick  Fischer Dev. No. 2 v. State of Alaska, Dept  of
Admin., 838 P.2d 263, 268 (Alaska 1992).

     30     In  King, 633 P.2d at 261 n.5, we noted our agreement
with the 5th Circuits  flagrancy requirement discussed in Hearth,
Inc.  v. Dept of Pub. Welfare, 612 F.2d 981, 982 (5th Cir. 1980).
Hearth  interpreted  Bivens and Davis v. Passman,  442  U.S.  228
(1979),   to  provide  a  damages  remedy  against  the   Federal
Government  for a constitutional violation only when a  violation
is  flagrant and no alternative remedy is available.  In Passman,
a  female  Congressional  staffer sued  a  U.S.  Congressman  for
depriving  her of an employment interest on the basis of  sex  in
violation  of  the  5th Amendment after he fired  her  explicitly
because of her sex.  Passman, 442 U.S. at 230-31.  In Bivens, the
plaintiff  sued  Federal  drug  agents  for  violating  his   4th
Amendment rights after the agents mistook him for a drug  dealer,
entered his home without a warrant, manacled him in front of  his
wife  and  children,  threatened  his  family  with  arrest,  and
searched his home  also without a warrant.  Bivens, 403  U.S.  at
389.   He  was  later  taken  into  custody,  interrogated,   and
subjected to a visual strip search.  Id.

     31     Lowell mentions Burrell v. Disciplinary Bd. of Alaska
Bar Assn, 777 P.2d 1140 (Alaska 1989), In re Vollintine, 673 P.2d
755  (Alaska  1983),  and In re Craddick, 602  P.2d  406  (Alaska
1979),  to  prove  that  threatened criminal  prosecution  by  an
attorney to gain advantage in a civil matter is wrongful conduct.
That  point  is not disputed.  But these cases do not  strengthen
Lowells argument that defendants behavior was flagrant and cannot
be  adequately  punished by existing tort  remedies  because  the
wrongful  conduct  in  each  case was addressed  by  disciplinary
proceedings   not  an  implied constitutional  right  of  action.
Burrell,  777  P.2d  at 1141; Vollintine,  673  P.2d  at  756-57;
Craddick,  602 P.2d at 407-8. Moreover, the wrongful  conduct  in
each  of  these cases was far more flagrant than the  conduct  in
this  case.   In  Burrell,  the conduct  was  aggravated  by  the
defendants  repeated  offenses  and  his  refusal  to  admit  any
wrongdoing.   777  P.2d  at  1145.  In Vollintine,  the  attorney
explicitly threatened opponents in order to influence  a  pending
matter and defamed an opponent as an incompetent and racist liar.
673  P.2d  at 756-58.  In Craddick, the Disciplinary Board  found
that  the  defendant committed clear and flagrant  violations  of
Disciplinary Rules.  602 P.2d at 408.

     32    Thoma, 947 P.2d at 824 n.5.

     33    Brause v. State, Dept of Health & Soc. Servs., 21 P.3d
357, 358 (Alaska 2001).

     34    Alaska R. Civ. P. 57(a).

     35    Jefferson v. Asplund, 458 P.2d 995, 1000 (Alaska 1969)
([T]he  requirements of pleadings in actions seeking  declaratory
relief  do not differ from those standards of pleadings governing
other  types  of civil actions.) (citing Gomillion v.  Lightfoot,
364 U.S. 339 (1960)); see generally, Alaska R. Civ. P. 8.

     36     Id. at 997-98 (citing Borchard, Declaratory Judgments
at 299 (2d ed. 1941)).

     37    Id. at 998.

     38     Id. at 996 & n.4.  Compare Fed. R. Civ. P. 57 and  28
U.S.  2201-2202 (Federal Declaratory Judgment Statute).

     39    Id. at 997 n.7.

     40    AS 22.10.020(g) provides, in relevant part: In case of
an  actual controversy in the state, the superior court, upon the
filing  of  an appropriate pleading, may declare the  rights  and
legal  relations of an interested party seeking the  declaration,
whether or not further relief is or could be sought.

     41    Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice and Procedure: Civil  2751 at 456 (3d ed.1998).

     42    Id. at 457-58.

     43    Id. at 457.

     44    515 U.S. 277 (1995).

     45    Id. at 286.

     46    Id. (emphasis in original).

     47    Asplund, 458 P.2d at 997 (quoting 28 U.S.C.  2201).

     48    Wilton, 515 U.S. at 288.

     49    Id.

     50    Id. at 287-88.

     51    Wright, Miller & Kane, supra note 41,  2758-59; Wilton,
515 U.S. at 279-82.

     52    Wright, Miller & Kane, supra note 41,  2758 at 513.

     53    376 U.S. 254 (1964).

     54    418 U.S. 323 (1974).

     55    Jefferson v. Asplund, 458 P.2d 995, 997 (Alaska 1969).

     56    Id.

     57    See, e.g., Intl Assn of Machinists & Aerospace Workers
v.  Tennessee  Valley Auth., 108 F.3d 658, 668  (6th  Cir.  1997)
(claim  for declaratory relief is barred to the same extent  that
the  claim for substantive relief on which it is based  would  be

     58    New York Times, 376 U.S. at 270.

     59    Id. at 271.

     60    Id. at 271-72 (quotations omitted).

     61    Brause v. State, Dept of Health & Soc. Servs., 21 P.3d
357,  358 (Alaska 2001).  The requirement of standing means  that
the  plaintiff  must  have a sufficient  stake  in  an  otherwise
justiciable  controversy,  and must have  been  injured  or  been
threatened with the injury by governmental action complained  of.
Best  v. Municipality of Anchorage, 712 P.2d 892, 895 n.4 (Alaska
App.  1985) (quoting Blacks Law Dictionary 1260-61 (rev. 5th  ed.
1979)).   The  requirement of ripeness  means  there  must  be  a
substantial  controversy, between parties  having  adverse  legal
interests,  of  sufficient immediacy and reality to  warrant  the
issuance  of  a  declaratory judgment.  Brause, 21  P.3d  at  359
(quoting  13A  Charles Alan Wright, et al., Federal Practice  and
Procedure  3532, at 112 (2d ed. 1984)).

     62    New Hampshire Hemp Council, Inc. v. Marshall, 203 F.3d
1,  4-5  (1st  Cir.  2000) (citing 13A Wright, Miller  &  Cooper,
Federal Practice and Procedure  3532.5, at 175-80 (2d ed.1984)).

     63    Id. at 5.

     64    Id.

     65    Alaska R. Civ. P. 37(c)(2) (emphasis added).

     66    Dobos v. Ingersoll, 9 P.3d 1020, 1026 (Alaska 2000).

     67     Since  Lowells  public figure status  was  clearly  a
determination  of  vital  importance  to  the  outcome   of   his
defamation  claim, Exception (B) is inapplicable.  If Lowell  had
reasonable  ground or other good reason for failing to  admit  he
was  a  public  figure, he has not suggested it in his  appellate
briefings, and so Exceptions (C) and (D) do not apply.

     68     Lowells briefing also seems to suggest a privilege or
attorney  work-product  exemption from the  requested  admission.
The  point is insufficiently explained and supported, and  we  do
not consider it.

     69    Lowell actually bases his argument that the request was
objectionable  on  Rule  26(b)(1), rather  than  Rule  36(a),  as
Exception (A) requires.

     70     Rule 36(a) states in relevant part that [a] party may
serve upon any other party a written request for the admission  .
.  .  of the truth of any matters . . . that relate to statements
or  opinions  of  fact  or of the application  of  law  to  fact.
(Emphasis added.)  This language clearly indicates that  a  party
may  not  request  the  admission of a purely  legal  conclusion,
though neither the text of the rule nor this courts caselaw  make
the  point  explicitly.  Federal cases interpreting  Rule  36(a)s
identical  federal counterpart have held that requests  for  pure
admissions of law are improper.  See, e.g., Reliance Ins. Co.  v.
Marathon  LeTourneau  Co., 152 F.R.D. 524, 525  n.2  (S.D.W.  Va.
1994); Williams v. Krieger, 61 F.R.D. 142, 144 (S.D.N.Y. 1973).

     71     Mt.  Juneau Enters., Inc. v. Juneau Empire, 891  P.2d
829,  835-36  (Alaska  1995) (citations  omitted)  (holding  that
determination of individuals public figure status may be resolved
on summary judgment if the facts relating to public figure status
are uncontroverted).

     72    Alaska R. Civ. P. 1.

     73     Riley v. N. Commercial Co., Mach. Div., 648 P.2d 961,
965 (Alaska 1982).

     74    Lowell does not challenge the award of fees under Rule
82,  insofar as the defendants were the prevailing party.  Lowell
also  does not challenge the specific amounts of fees claimed  by
the defendants and awarded by the superior court.

     75     See McCauley v. Transunion, L.L.C., 2005 WL 675565 at
*2  (2d Cir. Mar. 24, 2005) (citing Cathas v. Local 134 IBEW, 233
F.3d  508,  512  (7th  Cir.  2002) (Rule  68  offer  may  contain
disclaimer  of liability).  See also Charles Alan Wright,  Arthur
R.  Miller  &  Richard l. Marcus, Federal Practice and  Procedure
3002 at 93 n.20 (2d ed.1997) (citing relevant cases).

     76     Lowell  does  not challenge the defendants  offer  as
unreasonable or made in bad faith.  A Rule 68 offer  of  judgment
may be invalid where a party disingenuously makes a low offer  so
that  it  may  benefit from Rule 68.  See Beattie v. Thomas,  668
P.2d 268, 274 (Nev. 1983) (In determining the validity of Rule 68
offers,  trial courts should consider (1) whether the  plaintiffs
claim was brought in good faith; (2) whether the defendants offer
of  judgment was reasonable and in good faith in both its  timing
and  amount;  (3) whether the plaintiffs decision to  reject  the
offer  and  proceed to trial was grossly unreasonable or  in  bad
faith;  and  (4)  whether  the fees sought  by  the  offeror  are
reasonable and justified in amount.).  However, we need not reach
this issue because Lowell does not raise it.

     77    Cf. Domanski v. Funtime, 149 F.R.D. 556, 558 (N.D. Ohio
1993)  (damages  of  $5,581 and permanent  injunction  held  more
favorable than offer of $9,500); Lish v. Harpers Magazine Found.,
148  F.R.D.  516,  519  (S.D.N.Y.  1993)  (finding  of  copyright
violation  and  vindication of authors  right  to  control  first
publication held more favorable than offer of $250).

     78    Rules v. Sturn, 661 P.2d 615, 616 (Alaska 1983).

     79    Rule 68 prompts both parties to a suit to evaluate the
risks  and  costs of litigation, and to balance them against  the
likelihood of success upon trial on the merits. Marek v.  Chesny,
473 U.S. 1, 5 (1985).