Written by Anmei Goldsmith
Last Friday, September 24, 2018, the Alaska Supreme Court issued opinions in three cases briefed and argued by the BHBC municipal team – with favorable decisions in two of the three. In each case, the municipal team, led by the practice group’s lead attorney Holly Wells, vigorously defended its client city’s interests. These three cases highlight the municipal team’s depth of experience in appellate work, particularly for its municipal clients.
In City of Kodiak v. Kodiak Public Broadcasting Corporation, Slip Op. No. 7291, Holly Wells and Katie Davies successfully defended the City of Kodiak from an award of full attorney’s fees in a case involving production of public records under the Public Records Act. A radio station in Kodiak, KMXT, filed suit against the City to compel production of certain public records after the City objected. After brief litigation lasting less than two months, the City agreed to turn over all the records KMXT requested. KMXT then demanded its full attorney’s fees – almost $25,000, arguing that because access to public records is a fundamental right, it was entitled to full fees under AS 09.60.010, which allows full fees to the prevailing party in a constitutional claim. The trial court awarded KMXT its full attorney’s fees. The Supreme Court overturned this award, agreeing with the City that KMXT asserted a statutory right rather than a constitutional right, and was therefore not entitled to its full attorney’s fees. The case was remanded back to the Superior Court for a decision on Rule 82 attorney’s fees.
In Griswold v. Homer City Council, et al., Slip Op. No. 7297, BHBC defended the City of Homer in another case involving disclosure of public records under the Public Records Act. Holly Wells and Katie Davies defended the City’s assertion of the attorney-client privilege and the deliberative process privilege as exceptions to the general rule that the public has full access to inspect and copy public records generated by municipal governments. The Supreme Court took this opportunity to reaffirm the existence of the deliberative process privilege and the balancing test that trial courts must apply when this privilege is litigated. The Supreme Court also addressed for the first time how the attorney-client and work-product privileges interact with the Public Records Act. The Supreme Court held that these two privileges are exceptions to the general disclosure rule of the Public Records Act and provided guidance for future cases. This case was remanded to the trial court to re-examine the requested records in light of the Supreme Court’s holdings and to decide issues not addressed in the appeal.
In Griswold v. Homer Board of Adjustment, et al., Slip Op. No. 7295, the trial court issued an order “sua sponte” dismissing Griswold’s appeal of a conditional use permit granted by the City of Homer’s Board of Adjustment. Though neither side had raised the standing issue in the trial court, the trial court nevertheless decided the issue on its own. This placed Homer in the unusual legal position of defending an order it did not request. The Supreme Court overturned the trial court’s dismissal order and reaffirmed the principle that notice of an adverse argument that affects a party’s participation in a case, such as standing, is an essential part of due process. The case was remanded to Superior Court for further proceedings on the substantive issues of the case. Holly Wells and Tom Klinkner briefed and argued this case.