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, email 

corrections@akcourts.gov. 

THE SUPREME COURT OF THE STATE OF ALASKA 

VOTE YES FOR ALASKA’S FAIR 

SHARE, 

 Appellant and 

 Cross-Appellee, 

v. 

RESOURCE DEVELOPMENT 

COUNCIL FOR ALASKA, INC., 

ALASKA TRUCKING ASSOCIATION, 

INC., ALASKA MINERS 

ASSOCIATION, INC., ASSOCIATED 

GENERAL CONTRACTORS OF 

ALASKA, ALASKA CHAMBER, and 

ALASKA SUPPORT INDUSTRY 

ALLIANCE, 

 Appellees and 

 Cross-Appellants. 

 and. 

KEVIN MEYER, in his official capacity 

as Lt. Governor of the State of Alaska; 

GAIL FENUMIAI, in her official capacity

of Director of the Alaska Divisions of 

Elections; and STATE OF ALASKA, 

DIVISION OF ELECTIONS, 

Appellees.

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Supreme Court Nos. S-18044/18063 

Superior Court No. 3AN-20-05901 CI 

O P I N I O N 

No. 7674 – December 1, 2023 
-2- 7674

Appeal from the Superior Court of the State of Alaska, Third 

Judicial District, Anchorage, Thomas A. Matthews, Judge. 

Appearances: Robin O. Brena and Jon S. Wakeland, Brena 

Bell & Walker, P.C., Anchorage, for Appellant. Matthew 

Singer and Peter A Scully, Schwabe, Williamson & Wyatt, 

P.C., Anchorage, for Appellees Resource Development 

Council for Alaska, Inc., et al. Notice of nonparticipation 

filed by Katherine Demarest, Assistant Attorney General, 

Anchorage, and Treg R. Taylor, Attorney General, Juneau, 

for Appellees Lieutenant Governor of the State of Alaska, 

Director of the State of Alaska Division of Elections, and the 

State of Alaska Division of Elections. 

Before: Winfree, Chief Justice, Maassen, Carney, and 

Henderson, Justices. [Borghesan, Justice, not participating.] 

HENDERSON, Justice. 

WINFREE, Chief Justice, with whom CARNEY, Justice, 

joins, concurring in part. 

INTRODUCTION 

 A group of trade associations sued the State and a ballot initiative group 

seeking to invalidate the State’s approval of a ballot initiative petition. The litigation 

focused primarily on the constitutionality of a statute limiting the compensation that 

may be paid for obtaining signatures on ballot initiative petitions. The superior court 

ruled that the statute was unconstitutional and dismissed the trade associations’ claims 

that a large number of petition signatures should be invalidated because the statutory 

compensation limits had been exceeded.1 

 The ballot initiative group then moved for an attorney’s fees award against 

the trade associations. The ballot initiative group contended that it was a qualified 

1 We affirmed the superior court’s decision in an earlier appeal. Res. Dev. 

Council for Alaska v. Vote Yes for Alaska’s Fair Share, 494 P.3d 541, 543-53 (Alaska 

2021). 
-3- 7674

prevailing constitutional claimant entitled to an award of full reasonable attorney’s fees 

under AS 09.60.010,2 or at least an award of partial attorney’s fees under 

Alaska Civil Rule 82.3 The trade associations responded that the ballot initiative group 

could not be a constitutional claimant because it was not a “plaintiff, counterclaimant, 

cross claimant, or third-party plaintiff,” and argued that if the ballot initiative group was 

a constitutional claimant, then they were qualified non-prevailing constitutional 

claimants entitled to protection from an attorney’s fees award.4 The ballot initiative 

group responded that the trade associations could not be constitutional claimants 

because they had sufficient economic incentive to bring their claim regardless of its 

constitutional nature. 

The superior court concluded that the ballot initiative group was a 

constitutional claimant because its claim was effectively a counterclaim. But the court 

also concluded that the trade associations did not have sufficient economic incentive to 

bring their claim regardless of its constitutional nature, and they therefore were 

constitutional claimants protected from an award of full attorney’s fees under 

2 AS 09.60.010(c)(1) and (d)(1)-(2) provide that a prevailing party — “as 

plaintiff, counterclaimant, cross claimant, or third-party plaintiff in the action” — may 

obtain an award of full reasonable attorney’s fees devoted to constitutional claims upon 

which the party prevailed so long as the party did not have sufficient economic incentive 

to bring the claims regardless of their constitutional nature.

3 See Alaska R. Civ. P. 82(a) (“Except as otherwise provided by law or 

agreed to by the parties, the prevailing party in a civil case shall be awarded attorney’s 

fees calculated under this rule.”).

4 AS 09.60.010(c)(2) provides that a party — “as a plaintiff, 

counterclaimant, cross claimant, or third-party plaintiff in the action” — who brings but 

does not prevail on a constitutional claim may be protected from an adverse award of 

attorney’s fees so long as the constitutional claim was not frivolous and the party did 

not have sufficient economic incentive to bring the claim regardless of its constitutional 

nature.
-4- 7674

AS 09.60.010. The court nonetheless awarded the ballot initiative group partial 

attorney’s fees under Rule 82.

The ballot initiative group appeals, effectively limiting its argument to 

whether the superior court correctly determined that the trade associations were 

qualified constitutional claimants because they did not have a sufficient economic 

incentive to bring their claim regardless of its constitutional nature. The trade 

associations also appeal, arguing that if they are qualified constitutional claimants, then 

the Rule 82 attorney’s fees must be vacated.

We affirm the superior court’s determination that the trade associations 

did not have a sufficient economic incentive to bring their claims. Therefore, in light 

of the way the parties litigated the matter, the trade associations are qualified, nonprevailing constitutional claimants and the Rule 82 attorney’s fees award must be 

vacated. 

FACTS AND PROCEEDINGS

A. Facts

We outlined many of the facts relevant to this appeal in our previous 

decision, Resource Development Council for Alaska v. Vote Yes for Alaska’s Fair 

Share.

5

 That decision addressed whether the lieutenant governor properly certified a 

ballot initiative from Vote Yes for Alaska’s Fair Share (Fair Share) regarding changes 

to an oil and gas production tax for certain fields. 

As we outlined in that decision, the lieutenant governor approved Fair 

Share’s petition for its ballot initiative to appear on the 2020 statewide ballot,

6

and the 

Division of Elections printed petition booklets for circulation so Fair Share could gain 

5 494 P.3d at 544-45. The State parties had participated in this previous 

case, but took no position regarding the attorney’s fees issue in this appeal and crossappeal and filed a notice of non-participation. 

6

Id. at 544.
-5- 7674

the required signatures of qualified voters.7 Fair Share hired a professional signaturegathering company that sent signature-gatherers (called circulators) to circulate the 

petition booklets.

8

 These circulators ultimately provided 544 of the 786 signed petition 

booklets Fair Share submitted.9In March 2020, the lieutenant governor confirmed that

Fair Share’s initiative had been “properly filed” and would be placed on the 2020 

general ballot.10

B. Proceedings

1. Decisions on the merits

A group of trade associations — Resource Development Council for 

Alaska, Inc.; Alaska Trucking Association, Inc.; Alaska Miners Association, Inc.; 

Associated General Contractors of Alaska, Inc.; Alaska Chamber; and Alaska Support 

Industry Alliance (collectively the “Trade Associations”) — challenged the Fair Share 

ballot initiative as invalid.11 The Trade Associations argued that the ballot initiative 

was improperly certified because the compensation for ballot circulators exceeded the

statutory threshold of $1 per signature.12

The Trade Associations filed suit against the State and Fair Share, 

claiming that Fair Share’s petition was improperly certified.13 They requested 

7

Id. For the petition to appear on the ballot, Fair Share had to obtain voter

signatures “ ‘equal in number to 10 percent of those who voted in the preceding general 

election,’ representing ‘at least three-fourths of the house districts of the state,’ with 

each of those house districts providing signatures ‘equal in number to at least seven 

percent of those who voted in the preceding general election in the house district.’ ” 

Id. at 543 (quoting AS 15.45.140(a)).

8

Id. at 543-44.

9

Id. at 544.

10 Id. 

11 Id. 

12 Id.

13 Id.
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declaratory relief that “petition booklets that are supported by false circulator affidavits 

have not been properly certified under AS 15.45.130 and that the signatures in those 

booklets may not be counted,” and also sought injunctive relief ordering the lieutenant 

governor to invalidate the booklets and associated voter signatures.14 The State and 

Fair Share both moved to dismiss, and after limited discovery the Trade Associations 

cross-moved for partial summary judgment.15

Initially, the Trade Associations’ complaint had focused on Alaska 

statutes, particularly the statutory cap on circulator compensation. But as the superior

court noted, the constitutionality of the statute quickly became and remained a central 

issue throughout the litigation. Both the State and Fair Share highlighted the protection 

of constitutional free speech rights and challenged the circulator compensation statute 

as unconstitutional under the Alaska and United States Constitutions. 

The superior court dismissed the Trade Associations’ action on 

constitutional grounds. The court noted that constitutional claims were at issue for both 

parties, and explained that “[t]he Alaska Constitution enshrines the right of the people 

to propose and enact laws by initiative, and to approve or reject acts of the legislature 

by referendum. Also implicated are fundamental First Amendment rights to engage in 

core political speech.” The court also provided an in-depth explanation of Alaska’s 

initiative process. It explained that “[p]etition circulation is ‘core political speech’ ”

that “is protected by the First Amendment.” But it noted that “there must also be 

regulation of elections to ensure they have qualities of fairness and honesty . . . to ensure 

that there is some order, rather than chaos, to accompany the democratic process.” 

Ultimately, the superior court agreed with the Trade Associations’

interpretation of the signature payment statute, but held the statute unconstitutional. It 

14 Id.

15 Id. at 544-45.
-7- 7674

explained that the statute was unconstitutional because “the prohibition on payment 

greater than $1 per signature under AS 15.45.110(c) is an unconstitutional restriction 

on free speech protected by the First Amendment to the United States Constitution.” 

The court also noted that the Trade Associations’ proposed remedy of disregarding 

39,000 valid signatures on the petition was constitutionally flawed and would result in 

disenfranchisement of thousands of Alaska voters. 

The Trade Associations appealed the superior court’s dismissal, and we 

affirmed, holding that AS 15.45.110(c)’s limitation on circulator compensation was 

unconstitutional and concluding that the petition was properly certified.16 We agreed 

that the statute provided a hard cap on all forms of circulator compensation, and that 

Fair Share’s circulators’ monthly compensation exceeded the statutory $1 per-signature 

cap.17 But we also agreed that nevertheless, the petitions were properly certified 

because “the $1 a signature limit, as a hard cap, is an unconstitutional restriction on core 

political speech,” thus eliminating the statutory basis for the Trade Associations’ 

challenge to the petition certification.

18

2. Decisions on attorney’s fees

After the superior court’s decision on the merits, Fair Share moved for full 

reasonable attorney’s fees as a “constitutional claimant,” arguing that it met the 

statutory definition because it was the prevailing party on constitutional claims and 

lacked sufficient economic incentive to otherwise bring suit. It urged that the “case 

involved fundamental rights to the initiative and political speech under the Alaska 

Constitution, as well as political speech under the U.S. Constitution.” 

Fair Share stated that it “successfully defended the constitutional rights of 

Alaskans” and “itself against [the Trade Associations’] efforts to impair the 

16 Id. at 549-54.

17 Id. at 545-46.

18 Id. 
-8- 7674

constitutional rights to initiative and political speech.” It argued that we had “found no 

sufficient economic incentive or interest in similar circumstances” and that it should 

thus receive full reasonable fees. Fair Share contended that the “Court need look only 

to AS 09.60.010 to determine its fees . . . as a prevailing constitutional claimant.” In 

the alternative, it requested that the court award it enhanced attorney’s fees pursuant to 

Rule 82(b)(3).19

The Trade Associations opposed the motion for attorney’s fees, 

contending that Fair Share was not a “constitutional claimant” because it was not a 

“plaintiff, counterclaimant, cross claimant, or third-party plaintiff” that affirmatively 

brought a constitutional claim. They also argued that “[i]f Fair Share is a constitutional 

claimant merely because it raised constitutional arguments in its motions practice, then 

by that logic [the Trade Associations] are also immune” from fee liability under the 

same statute. The Trade Associations cited Alaska Miners Association v. Holman, 

where we ruled that a non-prevailing constitutional litigant was immune from attorney’s 

fees under AS 09.60.010(c)(2). 20

The superior court held that Fair Share was a constitutional claimant 

because it “successfully defended itself against Plaintiffs’ efforts to impair the 

constitutional rights to initiative and political speech.” The court also held that the 

Trade Associations were non-prevailing constitutional claimants “because they 

19 Rule 82(b)(3) grants a court discretion to vary an attorney’s fees award 

from the standard fee awards, based on consideration of several factors including the 

complexity of litigation, length of trial, vexatious or bad faith conduct, and other 

equitable factors that the court deems relevant. 

20 397 P.3d 312, 317 (Alaska 2017). Like the Trade Associations here, the 

Alaska Miners Association had sued the Division of Elections and several sponsors of 

a ballot initiative that would have required large-scale mining operations to undergo 

additional legislative approval. Id. at 313. But unlike the Trade Associations’ 

statutorily based complaint, the initial complaint in Holman asserted constitutional 

arguments. Id at 313-14.
-9- 7674

assert[ed] constitutional arguments in their summary judgment pleadings” and “did not 

prevail in this suit.” Examining the evidence of whether the Trade Associations had 

sufficient economic incentive to otherwise bring suit, it concluded that “Fair Share has 

failed to establish that [the Trade Associations] have a direct economic incentive to 

bring this action.” It noted that “the case was brought by various trade associations that 

represent a multitude of interests. While each Plaintiff may have varying reasons for 

participating in this suit, Fair Share has not demonstrated what direct benefits Plaintiffs 

derive from filing this suit.” (Emphasis in original.) In reaching this conclusion, the 

court examined the nature and composition of the trade associations and their members, 

the nature of relief sought, and the variety of interests represented in the lawsuit. The 

court considered Fair Share’s assertion that the Trade Associations were “acting as 

proxies for the major oil companies that were funding the [OneAlaska — Vote No on 

One] campaign against the ballot initiative, as well as the litigation in this case.” But 

the court noted that “the OneAlaska — Vote No on One campaign did not bring this 

suit.” Noting the lack of evidence of direct economic incentive such that “successful 

litigation would only confer indirect or attenuated economic benefits to [the Trade 

Associations],” the court concluded that the litigation was “not primarily motivated by 

economic interests as required by the statute.” It therefore determined that the Trade 

Associations were protected from attorney’s fees as non-prevailing constitutional 

claimants. 

Despite deeming the Trade Associations “constitutional claimants” and 

therefore protected from attorney’s fees, the court then turned to Rule 82 and its 

provisions for awarding fees. The court found that Fair Share had not sufficiently 

supported its request for an “upward variance” in Rule 82 fees, but awarded Fair Share 
-10- 7674

the standard 20% of actual attorney’s fees reasonably and necessarily incurred.21 It 

deducted or reduced some contested billing entries, and ultimately awarded Fair Share

$13,100 in Rule 82 attorney’s fees.

STANDARD OF REVIEW

Interpreting AS 09.60.010 is a question of law that we review de novo.22 

“We apply our independent judgment to questions of law, adopting the ‘rule of law that 

is most persuasive in light of precedent, reason, and policy.’ ”23 When a question of 

statutory interpretation is involved, we will independently evaluate the trial court’s 

interpretation.24

DISCUSSION

The main issue before us is who, if anyone, is a constitutional claimant, 

and what attorney’s fees, if any, attach as a result.25 We agree with the superior court 

21 Rule 82(b)(2) establishes that in cases involving no money judgment that 

are resolved without trial, the prevailing party shall be awarded 20% of its “actual 

attorney’s fees which were necessarily incurred.”

22 Alaska Conservation Found. v. Pebble Ltd. P’ship, 350 P.3d 273, 279

(Alaska 2015). We have contemplated whether constitutional claimant status also 

“could be a discretionary determination by the superior court or a mixed question of 

fact and law.” Id. at 284 n.60. But interpreting a statute is a question of law we review 

de novo, and the constitutional claimant analysis is “generally made on indisputable 

facts.” See Dep’t of Health & Soc. Servs. v. Planned Parenthood of the Great Nw., 448 

P.3d 261, 262 (Alaska 2019) (Winfree, J., concurring). We therefore review 

constitutional claimant status de novo as a question of law.

23 DeVilbiss v. Matanuska-Susitna Borough, 356 P.3d 290, 294 (Alaska 

2015) (quoting Young v. Embley, 143 P.3d 936, 939 (Alaska 2006)).

24 Id. 

25 In this instance, because the Trade Associations are plaintiffs whose 

arguments focused on constitutional claims, we consider them constitutional claimants. 

We do not, however, decide the issue whether a private party may violate another 

private party’s constitutional rights such that either party could qualify as a 

“constitutional litigant” for purposes of attorney’s fees, as neither party raised or briefed 

that issue.
-11- 7674

that the Trade Associations are constitutional claimants. The court therefore erred in 

awarding Rule 82 attorney’s fees to Fair Share. That determination is dispositive, so 

we do not reach the question whether Fair Share is a constitutional claimant.

A. Statutory Overview 

Rule 82 generally entitles a prevailing party in a civil matter to an 

attorney’s fees award.

26 Beginning in 1974 we recognized a “public interest exception” 

to Rule 82 that protects litigants raising important public interest matters from the 

disincentive of attorney’s fees.27 In Anchorage v. McCabe we reasoned that the public 

interest exception encouraged good faith public interest claims and that in fee-shifting 

jurisdictions like Alaska, the public interest litigant serves as a “private attorney 

general” vindicating a significant legislative policy.28 We adopted a three-prong test to 

determine whether an action qualified for the public interest exception, considering: 

first, whether the action effectuated strong public policy; second, whether numerous 

people would benefit from successful litigation; and third, whether “only a private party 

could have been expected to bring th[e] action.”29 In 1982 we added a fourth prong 

requiring that parties claiming the public interest exception demonstrate a lack of 

economic incentive to bring the litigation.30

In 2003 the Alaska Legislature abrogated and replaced the public interest 

exception to Rule 82.31 The legislature intended that a new statute, AS 09.60.010, 

26 See Alaska R. Civ. P. 82(a); Gilbert v. State, 526 P.2d 1131, 1136 (Alaska 

1974), superseded by statute, AS 09.60.010. See also Alaska Conservation Found., 350 

P.3d 273, 279-80 (Alaska 2015) (outlining history of public interest exception).

27 Alaska Conservation Found., 350 P.3d at 279-80.

28 568 P.2d 986, 990 (Alaska 1977), superseded by statute, AS 09.60.010.

29 Id. at 991 (quoting La Raza Unida v. Volpe, 57 F.R.D. 94, 101 (N.D. Cal. 

1972)).

30 Kenai Lumber Co., v. LeResche, 646 P.2d 215, 223 (Alaska 1982). 

31 Ch. 86, §§ 1-2, SLA 2003 (codified at AS 09.60.010(b)-(e)).
-12- 7674

would, much like Rule 82’s public interest exception, encourage private parties to speak 

up for constitutional rights while mitigating the risks of loss and the costs of pursuing 

a suit, particularly one that might not result in damages.32 Relevant to this appeal, the 

“constitutional claimant” provision operates as both a sword and a shield.33 Prevailing 

qualified constitutional claimants must be awarded attorney’s fees associated with their 

constitutional claims.34 Non-prevailing qualified constitutional claimants must be 

protected from paying the attorney’s fees of their opponents provided the claims are not 

frivolous or motivated by direct economic incentive.35

B. The Trade Associations Are Non-Prevailing Constitutional Claimants 

Under AS 09.60.010.

The primary issue on appeal related to the Trade Associations’ 

constitutional claimant status is whether they had sufficient economic incentive to bring 

the suit regardless of the constitutional claims. We hold that the Trade Associations are 

non-prevailing constitutional claimants because they lacked sufficient direct economic 

incentives to otherwise bring their challenge.

We determine whether a litigant is a constitutional claimant by focusing

“on primary purpose: A litigant has sufficient economic incentive to bring a claim when 

it is brought primarily to advance the litigant’s direct economic interest, regardless of 

the nature of the claim.”

36

 To determine “primary purpose” we generally examine two 

32 See Alaska Conservation Found., 350 P.3d at 280-81 (outlining legislative 

history). 

33 See AS 09.60.010(c)(1)-(2). 

34 AS 09.60.010(c)(1).

35 AS 09.60.010(c)(2). Section (d) of the statute further refines the fees and 

associated costs available to prevailing parties, stating that the award must include only 

the portion of the prevailing party’s claims concerning constitutional rights and must 

be awarded only if the prevailing party “did not have sufficient economic incentive to 

bring the suit.” AS 09.60.010(d)(1)-(2).

36 Alaska Conservation Found., 350 P.3d at 281-82.
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factors: first, the nature of the claim and the relief sought; and second, the direct 

economic interest at stake.37 As to the first factor, the nature of the claim and the relief 

sought, we “look to statements made in the pleadings and proceedings about the 

rationale for the lawsuit, to whether the relief requested was equitable or legal, and to 

the amount of money in controversy, to determine whether the litigant had sufficient 

economic incentive to bring the claim.”

38

 The facts of the case, including arguments 

the parties make throughout the litigation, inform our determination of the primary 

purpose.39 That a litigant seeks injunctive and declaratory relief alone is informative 

but not dispositive in determining whether a litigant had sufficient economic incentive 

to bring a claim.40 Here, the Trade Associations devoted much of their briefing, 

including their summary judgment arguments, to demonstrating that the United States 

Constitution did not bar the state from regulating the initiative process. As the superior 

court found, neither the constitutional arguments nor the statutory arguments were 

frivolous. The Trade Associations sought only declaratory and injunctive relief, not 

monetary relief, meaning that the decision of the lawsuit in itself would not result in 

direct financial gain. Thus the first factor favors the Trade Associations being 

constitutional claimants.

37 Id. at 282-83.

38 Id. at 282.

39 Id. 

40 Id. (noting that “the type of relief sought” is not conclusive: “ ‘Economic 

interest need not take the form of damages,’ and requesting injunctive relief does not 

guarantee a lack of economic motivation” (quoting Matanuska-Susitna Borough Sch. 

Dist. v. State, 931 P.2d 391, 403 (Alaska 1997))); see also Eyak Traditional Elders 

Council v. Sherstone, Inc., 904 P.2d 420, 426 (Alaska 1995) (concluding that 

“economic incentives were simply not at the heart of the [qualified public interest 

litigant’s] motive to litigate” though its suit sought money damages along with 

injunctive relief).
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As to the second factor, the direct economic interest at stake, we have 

noted that “we have never required that parties seeking constitutional-claimant 

status . . . be completely disinterested in the case.”41 As we have emphasized in suits 

involving elections and the ballot-initiative process, “possible or speculated impact” is 

not direct economic benefit.42 We have repeatedly limited the proper inquiry to 

examining whether there are “direct economic benefits [that] will flow to the claimant 

as a result of successful litigation” and not “when it would confer only indirect or 

attenuated economic benefits.”43 We have held that superior courts err where they look 

to “future possibilities and contingencies well outside the contours of the litigation to 

conclude that [the] case was not merely about” the constitutional issue at hand.44 We 

have also recognized that third-party funding of constitutional litigation with direct 

economic benefit to that party can be relevant to the constitutional claimant analysis.45 

But regardless of the funding source, any economic benefit must still be direct in order 

to defeat constitutional claimant status: “Focusing on the funding of constitutional 

litigation rather than on the litigation itself to determine primary purpose . . . can lead 

easily to the wrong result.”

46

41 Alaska Miners Ass’n v. Holman, 397 P.3d 312, 317 (Alaska 2017).

42 Id.

43 Alaska Conservation Found., 350 P.3d at 283; see also Kodiak Seafood 

Processors Ass’n v. State, 900 P.2d 1191, 1198-99 (Alaska 1995) (rejecting possible 

economic effect of litigation outcome on crab fishing industry as too speculative to 

support direct “economic benefit” and finding for crab fishers); Ninilchik Traditional 

Council v. Noah, 928 P.2d 1206, 1218–19 (Alaska 1996) (same in commercial fishing 

industry).

44 Alaska Conservation Found., 350 P.3d at 284 (emphasis added).

45 Id. at 285. 

46 Id.
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Fair Share urges that the Trade Associations have direct economic 

incentive “by proxy.” Fair Share characterizes the Trade Associations as merely 

“nominal Plaintiffs” who are acting on behalf of the “major oil producers.” Fair Share 

requests that we reverse the superior court and hold that the Trade Associations had 

sufficient economic incentive based on the “additional $1 billion per year in production 

taxes” that the major oil producers would have to pay if Fair Share’s ballot measure 

succeeded. Alternatively, Fair Share asks us to remand for “discovery into the funding 

and control of this litigation.” 

But we already rejected such an approach in Alaska Conservation 

Foundation, even after the superior court there had permitted discovery analogous to 

what Fair Share seeks here.47 In that case, we recognized that “commercial . . . interests 

may fund litigation by others . . . but this does not automatically transform otherwise 

indirect economic benefit into direct economic benefit.”48 As in Alaska Conservation 

Foundation, here “the underlying litigation was limited” to constitutional requirements,

and did not directly affect the economic interests of any non-party interested in the 

result.

49

 

We reiterated this principle in Alaska Miners Association v. Holman, 

which involved a constitutional challenge to the ballot-initiative process as related to a 

ballot measure that would require additional legislative approval for large-scale mining 

operations.

50

 Similar to Fair Share’s arguments here, the litigants in Holman argued 

that a group of trade associations, funded in part by Pebble Limited Partnership 

(Pebble), had a direct economic incentive to bring a suit because the ballot measure 

47

 See id. at 275-78 (describing discovery process). 

48

 Id. at 285. 

49

 See id.; Alaska Miners Ass’n v. Holman, 397 P.3d 312

). 

, 316-17 (Alaska 

2017

50 Holman, 397 P.3d at 313-17.
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“inject[ed] uncertainty” as to whether Pebble Mine development could proceed and 

therefore could “have an immediate impact in the form of lowering the stock prices of 

companies associated with the Project.”51 

We rejected this argument, stating that “[w]e reiterate and 

emphasize — again — that direct economic benefit is needed” to show sufficient 

economic incentive.52 Even with no dispute that Pebble partially funded the ballot 

measure litigation,53 we concluded that the trade associations in that case lacked direct 

economic incentive to bring suit. And because “the primary purpose of the litigation 

was to bring constitutional challenges to a ballot initiative,” we held that the trade 

associations were protected from attorney’s fees as constitutional claimants “regardless 

of the real party in interest and regardless of the economic interests of [the trade 

associations’] typical members.”54 We noted that “we have never required that parties 

seeking constitutional-claimant status . . . be completely disinterested in the case” and 

instructed that “[p]ossible or speculated [economic] impact is not enough.”55 

Following Holman, we consider the Trade Associations’ real or 

speculative connections to “major oil producers” insufficient to establish direct 

economic impact in this context. Fair Share asserts that the Trade Associations’ 

economic impacts are more direct than those in Holman because the Trade Associations 

are “acting as proxies for the major oil companies . . . and the oil companies had 

sufficient economic incentive to file suit because the Fair Share Act will directly impact 

51 Id. 

52 Id. at 317 (emphasis in original.).

53 The superior court found that Pebble financed at least part of the litigation, 

and at oral argument the plaintiffs conceded that Pebble both partially financed the suit 

and agreed to indemnify all named plaintiffs in the event of an adverse attorney’s fees 

ruling. Id. at 313-15.

54 Id. at 317.

55 Id. 
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the production taxes they must pay.” It urges that “direct ties to the entities that would 

have paid the increased production taxes under the Fair Share Act directly affect the 

incentives of the [Trade Associations] in which they have membership.” 

Fair Share points to two cases in which we determined that an 

organization’s membership’s interests established sufficient economic incentive to 

defeat constitutional claimant status. But both cases involved Rule 82 public interest 

litigants rather than constitutional claimants, and both are distinguishable on the facts. 

In Fairbanks North Star Borough v. Interior Cabaret Hotel, Restaurant, & Retailers 

Association (ICHRRA),

56 an alcohol beverage industry nonprofit group sued the 

borough to prevent an alcohol tax referendum from being placed on the ballot, explicitly 

acknowledging that it sued “ ‘because its members would be directly and adversely 

affected’ by adoption of the tax ordinance.”57 ICHRRA’s members were all for-profit 

businesses licensed to sell alcohol.58 We concluded that the public interest litigant 

exception did not apply because ICHRRA’s members’ economic interest in avoiding 

the tax provided sufficient economic incentive to file suit.59 But as the Trade 

Associations point out, that case involved a tax that would be applied directly to all of

ICHRRA’s members, so it was “undisputed that all of ICHRRA’s members ha[d] some 

sort of direct financial interest.”60 Here, the ballot initiative sought to increase 

production taxes on oil from three major fields: Prudhoe Bay, Kuparuk, and Colville. 

And unlike ICHRRA’s relatively uniform membership, the Trade Associations’

memberships “consist of a broad constituency of individuals, organizations, and 

companies, the vast majority of which would not be directly impacted by a tax on oil 

56 137 P.3d 289 (Alaska 2006).

57 Id. at 291.

58 Id. at 290.

59 Id. at 292-94.

60 Id. at 292. 
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production.”61 The economic interests of an organization’s members and directors are 

relevant to assessing the primary motivation of litigation.62 But here, the economic 

interest asserted is that some of the Trade Associations’ members are oil and gas 

producers who would be subject to higher taxes if the Fair Share Act reached the ballot 

and if it were ultimately passed by Alaska’s voters. We view the possibility that some 

members of the Trade Associations could avoid a potential future production tax, still 

subject to voter approval, as both indirect and attenuated.63 Thus we conclude that the 

Trade Associations’ interests here are too diffuse to constitute direct economic impact.

Further, we decline to reverse and remand for discovery into the funding 

sources of the litigation. We have rejected an approach that focuses on litigation 

funding sources. And we have specifically noted that seeking evidence beyond that 

which has already been developed in the course of the litigation is a misplaced and 

potentially misleading inquiry.

64 Fair Share repeatedly asserts facts suggesting 

61 The Trade Associations note the variety of organizational structures and 

interests among their members. For example, the “Resource Development Council for 

Alaska, Inc. is a statewide business association comprised of individuals and companies 

from Alaska’s oil and gas, mining, forest products, tourism, and fisheries industries, 

including Alaska Native Corporations, local Alaska communities, organized labor, and 

industry support firms.” Some, like the Alaska Trucking Association and Alaska 

Mining Association, represent specific industries and the companies that support those 

industries. Others are significantly broader across industries and interests, like the 

Alaska Chamber, which “is an Alaskan member-based group that has been the voice of 

the Alaska business community whose membership includes individual Alaskans, 

Alaska Native Corporations, oil and gas companies, trucking companies, banks, mining 

entities, and tourism companies.”

62 See, e.g., Kachemak Bay Watch, Inc. v. Noah, 935 P.2d 816, 827-28 

(Alaska 1997) (holding nonprofit had economic incentive because evidence presented 

at trial showed that three nonprofit directors would be directly economically impacted 

by litigation outcome). 

63 See Alaska Conservation Found. v. Pebble Ltd. P’ship, 350 P.3d 273, 281-

83 (Alaska 2015).

64 See id. at 285.
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connections between the “major oil producers” and the campaign against the success of 

the ballot measure.65 These facts may have influenced the ultimate success of the Vote 

No campaign at the ballot box,66 but they are well beyond the contours of the underlying 

litigation in this case. Even if, as in Holman, there was evidence that third-party 

resource developers funded the litigation because they were interested in blocking the 

ballot measure, any financial benefit to the Trade Associations’ various individual 

members would have been both speculative and attenuated by the ballot initiative 

process and the will of the voters.

While affirming the superior court’s determination that the Trade 

Associations are constitutional claimants, we note that it was error to state that Fair 

Share had the burden to prove the Trade Associations’ economic incentive. As Fair 

Share notes, the superior court indicated twice in its decision that Fair Share had the 

burden to prove the Trade Associations’ direct economic interest. This is incorrect. 

The burden is on the Trade Associations to prove their lack of direct economic interest. 

But the error is harmless in this context.67 Regardless of whether the 

superior court proceeded as if Fair Share had the burden, the record supports the court’s 

ultimate conclusion. The superior court “must ‘look to the facts of the case to determine 

the litigant’s primary motivation for filing the suit’ ” because those facts “inform the 

65 At the superior court, Fair Share cited quarterly reports showing that the 

counter-initiative campaign against the ballot measure (called OneAlaska — Vote No 

on One, or “Vote No”) received most of its funding from BP Exploration Alaska, 

ExxonMobil, ConocoPhillips Alaska, and Hilcorp Energy. It also noted that both the 

Vote No campaign and the oil companies paid the law firms that employed the Trade 

Associations’ counsel. 

66 See Elwood Brehmer, Oil Tax Increase Defeated, but Revenue Issue 

Remains, ALASKA J. COMMERCE. (Nov. 18, 2020, 9:02 AM), https://www.alaska

journal.com/2020-11-18/oil-tax-increase-defeated-revenue-issue-remains. 

67 Pedersen v. Blythe, 292 P.3d 182, 184 (Alaska 2012) (“[W]e must 

disregard harmless errors that have no substantial effect on the rights of parties or on 

the outcome of the case.”).
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determination of primary purpose.”68 Here, the superior court’s overall analysis reflects 

a thoughtful examination of the required factors to determine the primary purpose of 

the litigation: (1) “the nature of the claim and relief sought,” and (2) “the direct 

economic interest at stake.”69 The court considered statements made by the Trade 

Associations throughout the litigation, the nature of the relief sought, and what, if any, 

direct economic impact the litigation would have. It also expressly considered Fair 

Share’s assertions that the Trade Associations were “acting as proxies” for the major 

oil companies. This included consideration of our discussion of third-party economic 

interests in Alaska Conservation Foundation.

70

 Based on these considerations the court 

reasoned that any increase in oil production taxes occurring “if the initiative was added 

to the ballot and it passed” wastoo “indirect or attenuated” to be the Trade Associations’ 

primary motivation for bringing suit. Reviewing the record and recognizing the burden 

on the Trade Associations to prove their lack of direct economic incentive, we affirm

the superior court’s determination that the Trade Associations were constitutional 

claimants.

C. It Was Error To Award Rule 82 Fees Against The Trade Associations.

We have recognized that the statutory language protecting qualifying 

constitutional claimants is “couched . . . in seemingly mandatory terms” as 

“AS 09.60.010(c)(2) states that a court ‘may not order’ a qualifying unsuccessful 

claimant to pay attorney’s fees.”71 And we have consistently recognized that the statute 

protecting constitutional claimants is an “exception to Rule 82.”72 “A qualified 

68 Alaska Conservation Found., 350 P.3d at 282 (quoting O’Callaghan v. 

State, 920 P.2d 1387, 1390 (Alaska 1996)).

69 Id. at 281-82. 

70 Id. at 285.

71 Id. at 284 n.60 (quoting AS 09.60.010(c)(2)). 

72 Id. at 280.
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constitutional claimant is entitled to protection under AS 09.60.010(c)(2) against an 

attorney’s fees award under Rule 82.”73 Fees should not be awarded against a 

constitutional claimant who brings claims that are neither frivolous nor primarily 

economically motivated.74 

The Trade Associations argue that the superior court erred by concluding 

that the constitutional claimant statute “does not protect constitutional claimants from 

adverse fee awards under Rule 82” and awarding Rule 82 fees against them. Fair Share 

concedes that if the Trade Associations are deemed constitutional claimants, “they are 

not subject to any award of fees.” We agree. As discussed above, the Trade 

Associations are constitutional claimants and the case involves only constitutional 

claims. The Trade Associations are therefore shielded from an attorney’s fee award. It 

was error for the superior court to conduct a Rule 82 analysis. We thus vacate the 

superior court’s attorney’s fees award to Fair Share.

CONCLUSION

We AFFIRM the superior court’s determination that the Trade 

Associations are constitutional claimants, and we VACATE the superior court’s 

attorney’s fees award to Fair Share.

73 Taylor v. Alaska Legis. Affs. Agency, 529 P.3d 1146, 1160 (Alaska 2023).

74 We note that the statute only protects constitutional claimants against 

attorney’s fee awards for those fees “devoted to claims concerning” constitutional 

rights. AS 09.60.010(d)(1). We have clarified that “Rule 82 attorney fees may be 

awarded only for work that would not have been necessary but for a non-constitutional 

claim.” Lake & Peninsula Borough Assembly v. Oberlatz, 329 P.3d 214, 228 (Alaska 

2014). In other words, if the suit includes separate, non-constitutional claims, fees 

could be awarded based on work on those claims. Here, however, Fair Share does not 

argue that any portion of the litigation between the parties was unnecessary to 

constitutional claims.
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WINFREE, Chief Justice, with whom CARNEY, Justice, joins concurring in part.

I agree with today’s decision because it correctly resolves the parties’ 

attorney’s fees dispute as litigated in the superior court and argued to us in this appeal. 

But there has long been an elephant in the courtroom when one private party seeks to 

obtain or avoid attorney’s fees vis à vis another private party, rather than a government 

entity, under AS 09.60.010’s “constitutional claimant” attorney’s fees framework.1 If 

it is true that vindication of a private party’s constitutional rights is sought against the 

government because only the government can violate a private party’s constitutional 

rights,2 how is it that a private party can be a “constitutional claimant” against another 

private party and invoke the benefit or protection of AS 09.60.010?

1 We summarized the effect of AS 09.60.010 in Alaska Conservation 

Found. v. Pebble Ltd. P’ship, 350 P.3d 273, 274 (Alaska 2015):

The statute both encourages and protects those challenging 

governmental action as a violation of federal or state 

constitutional rights. First, the statute provides that a 

successful claimant generally is entitled to an award of full 

reasonable attorney’s fees and costs incurred in connection 

with a constitutional claim, unless the claimant had 

‘‘sufficient economic incentive’’ to bring the claim 

regardless of its constitutional nature. Second, the statute 

protects an unsuccessful claimant from an adverse attorney’s 

fees award if the constitutional claim was not frivolous and 

the claimant did not have ‘‘sufficient economic incentive’’ 

to bring the claim regardless of its constitutional nature.

2 See, e.g., Belluomini v. Fred Meyer of Alaska, Inc., 993 P.2d 1009, 1015 

(Alaska 1999) (describing “long-standing legal principle” that “state and federal courts 

have historically recognized that the constitution protects individuals from state action 

but not from similar deprivations by private actors”); Baker v. City of Fairbanks, 471 

P.2d 386, 394 (Alaska 1970) (“The American constitutional theory is that constitutions 

are a restraining force against the abuse of governmental power, not that individual 

rights are a matter of governmental sufferance.”); see also State v. Alaska State Emps. 

Ass’n/Am. Fed’n of State, Cnty. & Mun. Emps., 529 P.3d 547, 557 (Alaska 2023)
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Our case law has developed considerably since we recognized in State v. 

Native Village of Nunapitchuk that the legislature had exercised its constitutional 

authority to abrogate our common law “public interest litigation” attorney’s fees 

framework and replace it with the narrower constitutional litigation framework of 

AS 09.60.010.3 We soon thereafter stated that for the party prevailing against the State 

on a constitutional claim, AS 09.60.010 controlled the award of attorney’s fees to the 

exclusion of Alaska Civil Rule 824and the former public interest litigation doctrine.5 

In two later cases we established parameters for determining whether, to qualify as a 

(explaining that no First Amendment violation occurs unless claimant shows that state 

or federal government was entity curtailing right to speak or associate); Anderson v. 

Alaska Hous. Fin. Corp., 462 P.3d 19, 25 (Alaska 2020) (explaining that Alaska 

Constitution’s due process clause requires claimant to prove existence of “state action 

and the deprivation of an individual interest of sufficient importance to warrant 

constitutional protection”); Miller v. Safeway, Inc., 102 P.3d 282, 288 (Alaska 2004) 

(explaining that Alaska Constitution’s right to privacy applies to “unwarranted 

intrusions by the government” and not by private parties); State v. Planned Parenthood 

of Alaska, 35 P.3d 30, 38 (Alaska 2001) (explaining that Alaska Constitution’s art. 1, 

§ 3’s equal protection provision restrains only state action).

3 134 P.3d 389, 391-92, 395, 402-06 (Alaska 2007) (discussing history of 

public interest litigation framework and legislative enactment abrogating and replacing 

it with AS 09.60.010); see also Krone v. State, Dep’t of Health & Soc. Servs., 222 P.3d 

250, 253-54, 255-57 (Alaska 2009) (discussing legislature’s abrogation of public 

interest litigation framework and its replacement with AS 09.60.010); Alaska 

Conservation Found., 350 P.3d at 274 (noting that AS 09.60.010 was “enacted to 

abrogate our previous common law public interest litigation attorney’s fees framework 

and replace it with a narrower constitutional litigation framework”).

4 See Alaska R. Civ. P. 82(a) (“Except as otherwise provided by law or 

agreed to by the parties, the prevailing party in a civil case shall be awarded attorney’s 

fees calculated under this rule.”).

5 Krone, 222 P.3d at 257.
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constitutional claimant under AS 09.60.010, a party lacked “sufficient economic 

incentive” to bring a constitutional claim regardless of its constitutional nature.6 

In Alaska Conservation Foundation a number of individuals and a nonprofit entity sued the State for allegedly issuing constitutionally defective land and 

water use permits to Pebble Limited Partnership in connection with the proposed Pebble 

Mine.7 The Pebble Limited Partnership intervened as a party-defendant aligned with 

the State.8 The State and the Pebble Limited Partnership prevailed on the constitutional 

claim and attorney’s fees litigation under AS 09.60.010 ensued.9 The Pebble Limited 

Partnership sought wide-ranging discovery from the plaintiffs and certain non-parties 

about the plaintiffs’ economic interests and obtained superior court orders compelling 

the discovery.10 We granted a petition for review and an original application for relief 

on the superior court’s discovery rulings and consolidated them for decision.11

We issued two related opinions the same day, one reversing the superior 

court’s merits-decision rejecting the plaintiffs’ constitutional claim12 and the other 

reversing the superior court’s discovery rulings.13 We recognized that, because our first 

decision resulted in the plaintiffs being prevailing constitutional claimants, the award 

of attorney’s fees had to be reversed and the plaintiffs then would be entitled to seek 

6 Alaska Conservation Found., 350 P.3d at 281-86; Alaska Miners Ass’n v. 

Holman, 397 P.3d 312, 316-17 (Alaska 2017).

7 350 P.3d at 275.

8

Id.

9

Id.

10 Id. at 275-78.

11 Id. at 274.

12 Nunamta Aulukestai v. State, Dep’t Nat. Res., 351 P.3d 1041, 1064 

(Alaska 2015).

13 Alaska Conservation Found., 350 P.3d at 286.
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attorney’s fees in the superior court.14 Concluding that the attorney’s fees litigation still 

would require a decision on the discovery disputes, and specifically the correct analysis

for analyzing sufficient economic incentive to bring constitutional claims, we reached 

those issues.15

We reversed the discovery order and concluded that the case was about 

potential constitutional limitations on State-issued land and water use permits for which 

there was not sufficient economic incentive to bring the action absent the constitutional 

issue.16 Along the way we rejected the arguments that the plaintiffs were merely 

stalking horses for fisheries and tourism interests opposed to the Pebble Mine and that 

those interests had sufficient economic incentive to bring the lawsuit, focusing instead 

on whether the ultimate decision on the constitutional issue could have a direct 

economic impact on anyone.17 Answering that question “no,” we remanded for 

proceedings in which the plaintiffs, as qualified prevailing constitutional claimants, 

could seek an AS 09.60.010(c)(1) attorney’s fees award.18 Whether the Pebble Limited 

Partnership or the plaintiffs could rely on AS 09.60.010 to seek or avoid an attorney’s 

fees award vis à vis the other was not an issue before us.19

In Holman a number of parties (Alaska Miners) aligned with the Pebble 

Limited Partnership sued the State to challenge, on state constitutional grounds, the 

certification of a ballot initiative that would require final legislative approval for largescale mining operations located within certain watersheds, such as the proposed Pebble 

14 Id. at 274-75.

15 Id. 

16 Id. at 286.

17 Id. 

18 Id. at 286.

19 Cf. id. at 274 (stating that AS 09.60.010 “encourages and protects those 

challenging governmental action as a violation of federal or state constitutional rights”).
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Mine.20 The ballot initiative sponsors collectively (Holman) intervened as a partydefendant aligned with the State to defend the ballot initiative.21

 The State and Holman 

prevailed on the constitutional issue and we later affirmed that decision on appeal.22 

Holman then sought AS 09.60.010 attorney’s fees against the Alaska Miners as a 

prevailing constitutional litigant.23 The Alaska Miners countered that they were nonprevailing constitutional claimants entitled to protection against an attorney’s fees 

award, and that Holman, as an intervenor-defendant, could not meet the statutory 

requirement that a constitutional claimant be a plaintiff, counterclaimant, crossclaimant, or third-party plaintiff.24

 The superior court awarded full reasonable 

attorney’s fees to Holman, first concluding that Holman was effectively a “claimant” 

despite being an intervenor-defendant and then concluding that because the Pebble 

Limited Partnership had agreed to indemnify the Alaska Miners and the Pebble Limited 

Partnership had a sufficient economic interest in bringing the claim regardless of its 

constitutional nature, the Alaska Miners were not protected by AS 09.60.010(c)(2).25

We reversed the superior court’s decision. Noting that the case was the 

“mirror image” of Alaska Conservation Foundation,

26 we rejected the superior court’s 

20 Alaska Miners Ass’n v. Holman, 397 P.3d at 313 (Alaska 2017).

21 Id.

22 Id. (citing Hughes v. Treadwell, 341 P.3d 1121, 1134 (Alaska 2015)).

23 Id. at 314.

24 Id.; cf. AS 09.60.010(c)(2) (providing qualified non-prevailing 

constitutional claimant protection against an attorney’s fee award); AS 09.60.010(c)(1) 

(referring to constitutional claimant as “plaintiff, counterclaimant, crossclaimant, or 

third-party plaintiff” in action concerning constitutional rights). The Alaska Miners 

couched its latter superior court argument to be that the statute was intended to protect 

persons who raised constitutional claims against the State but not to protect intervenordefendants against private parties. 397 P.3d at 314. 

25 Holman, 397 P.3d at 315.

26 Id. at 316.
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real-party-in-interest analysis and concluded that the case was about constitutional 

limitations on Alaska’s ballot initiative process and not about direct economic 

interests.27 Because the only issue before us was whether the Alaska Miners had 

“sufficient economic incentive” to bring its suit against the State,28 we reversed the 

award of AS 09.60.010 attorney’s fees against the Alaska Miners and in favor of 

Holman.29 Whether the two private parties could rely on AS 09.60.010 to obtain or 

avoid attorney’s fees awards vis à vis each other — and how the statutory language 

about a claimant being a plaintiff asserting a constitutional claim rather than being a 

defendant defending a constitutional claim might play in the analysis — was not 

resolved in our decision.30

In the case before us now, the AS 09.60.010 attorney’s fees dispute again 

is between private parties and does not involve the State. The plaintiff trade 

27 Id. at 317. 

28 Id. at 316.

29 Id. at 318.

30 The statutory definition of a claimant was an issue in more recent superior 

court litigation, although it was not an issue in the subsequent appeal. In Taylor v. 

Alaska Legis. Affs. Agency the attorney general sued a legislative agency for declaratory 

judgment on a constitutional question about the effective date of budget appropriations. 

529 P.3d 1146, 1148-51 (Alaska 2023). The superior court ruled in favor of the 

legislative agency, which then sought AS 09.60.010(c)(1) attorney’s fees. Id. at 1160. 

The superior court agreed with the attorney general that the agency did not qualify as a 

constitutional claimant because it was a defendant in the action, not a plaintiff, but it 

did award attorney’s fees to the agency under Civil Rule 82. Id. at 1152. The attorney 

general appealed the merits of the constitutional ruling and the attorney’s fees award. 

Id. The agency did not appeal the ruling that it was not entitled to an award of attorney’s 

fees under AS 09.60.010(c)(1). Id. at 1159. We affirmed the superior court’s decision 

on the constitutional issue but vacated the attorney’s fees award because the court had 

not resolved the attorney general’s contention that he was entitled to protection against 

the fees award under AS 09.60.010(c)(2). Id. at 1160 (noting we took no position on 

whether the attorney general, or any state agency, could be a qualified constitutional 

claimant under the statute).
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associations (Trade Associations) sued the State and the ballot initiative sponsor (Fair 

Share), contending that the collection and certification of signatures violated 

AS 15.45.130 and AS 15.45.110(c). But the constitutionality of AS 15.45.110(c) 

became a central issue in the litigation, and the State and Fair Share prevailed on that 

constitutional issue. Fair Share sought AS 09.60.010(c)(1) attorney’s fees against the 

Trade Associations as a successful constitutional claimant, arguing that it had 

successfully defended “against [the Trade Associations’] efforts to impair the 

constitutional rights to initiative and political speech.” The Trade Associations 

responded that Fair Share had not been a “plaintiff, counterclaimant, cross claimant, or 

third-party plaintiff” in the action, had not raised a constitutional claim in its pleadings, 

and therefore could not be a constitutional claimant under the statute. They 

alternatively argued that they were qualified non-prevailing constitutional claimants 

and protected against an attorney’s fees award under AS 09.60.010(c)(2). Like the 

superior court in Holman but unlike the superior court in Taylor, the superior court 

accepted Fair Share’s argument and concluded that Fair Share was a constitutional 

claimant despite not being a plaintiff-like party, entitling it to attorney’s fees under 

AS 09.60.010(c)(1) if otherwise qualified. But the court went on to conclude that the 

Trade Associations were qualified non-prevailing constitutional claimants protected by 

AS 09.60.010(c)(2), thus precluding an award of attorney’s fees. 

Today’s decision correctly affirms the superior court’s ruling that the 

Trade Associations are qualified non-prevailing constitutional claimants entitled to the 

protection of AS 09.60.010(c)(2) with respect to its constitutional claim. As litigated 

in the superior court and argued to us by Fair Share on appeal, that resolves the narrow 

dispute before us. But our narrow ruling begs the elephantine question: Can 

AS 09.60.010 be interpreted to provide a private party with the right to obtain or avoid 

an attorney’s fees award vis à vis another private party who did not and could not violate 

another private party’s constitutional rights? The language of the statute, when 

delineating who can be a claimant, suggests the statute is limited to someone suing the 
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government on a constitutional question, which seems consistent with the statute’s 

intent.31 This then suggests that as to a dispute between private parties about 

constitutional interpretation, Civil Rule 82 and not AS 09.60.010 applies. There also 

remains the related question whether a private or government entity defendant can 

potentially qualify as a constitutional claimant entitled to protection under 

AS 09.60.010(c)(2) merely by opposing a constitutional claim with a competing 

constitutional analysis, thus eviscerating the legislature’s intent to encourage citizens to 

bring actions to protect their constitutional rights.

32

 But, because these issues are not 

before us, we have no analysis of the statutory language, no presentation about 

legislative history and intent, and no adversarial arguments on how the statute should 

be read in this context. At some point these issues need to be presented and resolved. 

31 See supra note 1.

32 Cf. supra notes 1 and 30 (and related text).