450 P.3d 689
Alaska2019Background
- Lieutenant Governor Kevin Meyer declined to certify Stand for Salmon’s 2016 ballot initiative, prompting appellate review in Mallott v. Stand for Salmon.
- The Alaska Supreme Court held parts of the initiative constitutional and one portion (the initiative’s definition of “substantial damage”) unconstitutional, but severed the offensive portion and otherwise upheld the measure in 2018.
- The court initially ordered each side to bear its own appellate costs; Stand for Salmon moved for reconsideration seeking attorney’s fees under AS 09.60.010 (the statute awarding fees for successful constitutional claimants).
- The court granted reconsideration, solicited supplemental briefing, and framed the fee question under AS 09.60.010(c)–(d): prevailing constitutional claimants get full reasonable fees for services devoted to constitutional claims they prevailed on, but fee exposure is limited for non-prevailing constitutional claimants under (c)(2).
- The court identified four discrete constitutional issues (definition of “substantial damage”; habitat protection standards; two mitigation-framework provisions; severability) and found Stand for Salmon prevailed on three of them and lost on the “substantial damage” issue.
- The court directed Stand for Salmon to submit a limited (10-page) memorandum linking claimed appellate fees to the four issues (with timesheets/affidavits); it awarded full fees for the three issues won, denied fee recovery for work devoted solely to the lost constitutional claim, and barred an adverse fee award on that lost constitutional claim under AS 09.60.010(c)(2).
Issues
| Issue | Stand for Salmon’s Argument | Lieutenant Governor’s Argument | Held |
|---|---|---|---|
| 1) Definition of “substantial damage” | Definition was constitutional and should be certified | Definition violated the Alaska Constitution and should be struck | Lieutenant Governor prevailed; definition unconstitutional and severable |
| 2) Habitat protection standards | Standards are constitutional and should be certified | Standards violate the Constitution | Stand for Salmon prevailed; standards constitutional |
| 3) Mitigation-framework provisions | Two mitigation provisions are constitutional | Provisions are unconstitutional | Stand for Salmon prevailed; provisions constitutional |
| 4) Severability of offending provisions | Unconstitutional portions can be severed so remainder can stand | Offending provisions cannot be severed | Stand for Salmon prevailed; offending portion severable |
Key Cases Cited
- Mallott v. Stand for Salmon, 431 P.3d 159 (Alaska 2018) (prior appellate decision addressing constitutionality and severability of Stand for Salmon initiative)
- Manning v. State, Dep’t of Fish & Game, 355 P.3d 530 (Alaska 2015) (rejects simple pro rata allocation of fees between constitutional and non-constitutional claims; places evidentiary burden on fee seeker)
- Lake & Peninsula Borough Assembly v. Oberlatz, 329 P.3d 214 (Alaska 2014) (interprets AS 09.60.010: prevailing constitutional claimants may recover fees for constitutional claims they won and are protected from fees for constitutional claims they lost)
- Alaska Conservation Found. v. Pebble Ltd. P’ship, 350 P.3d 273 (Alaska 2015) (describes legislative purpose of AS 09.60.010 as replacing prior public-interest framework to encourage constitutional litigation)
- Harris v. Maricopa Cty. Superior Court, 631 F.3d 963 (9th Cir. 2011) (cited for caution against mechanical pro rata fee allocation when claims overlap)