“Prevailing On The Merits” Reaffirmed: Full Attorney-Fee Awards Under AS 09.60.010(c) after Donkel & Cade v. State of Alaska, Department of Natural Resources

1. Introduction

The Alaska Supreme Court’s memorandum opinion in Daniel K. Donkel & Samuel H. Cade v. State of Alaska, Department of Natural Resources (No. 2101, Aug. 13, 2025) sounds routine at first glance—it merely affirms a superior court’s decision to award only partial attorney’s fees. Yet the ruling crystallises an important and recurring point of Alaska fee-shifting law: to recover full reasonable fees under Alaska Statute 09.60.010(c) a litigant must actually prevail on a constitutional claim that the court addresses in its merits decision. Merely raising, implying, or introducing constitutional rhetoric post-judgment does not qualify.

The appellants—oil-and-gas leaseholders Daniel Donkel and Samuel Cade—had convinced the superior court that the Department of Natural Resources (DNR) wrongly refused to release decades-old well data. When they petitioned for fees, however, the superior court limited them to the “standard” 20 % award under Appellate Rule 508(e)(4). On appeal they insisted that they were “prevailing constitutional litigants” entitled to full fees. The Supreme Court disagreed, holding that:

Where the trial court resolves the dispute solely on statutory or regulatory grounds and expressly declines (or finds it unnecessary) to reach any constitutional question, a claimant has not “prevailed in asserting” a constitutional right within the meaning of AS 09.60.010(c).

2. Summary of the Judgment

• Main Holding: Affirmed the superior court’s partial award of attorney’s fees; appellants did not qualify for full fees under AS 09.60.010(c) because the court’s merits decision rested completely on statutes and regulations, not on constitutional grounds.
• Key Reasons:
  • The superior court never reached—let alone decided—procedural or substantive due-process claims.
  • The appellants had not properly “asserted” a constitutional right of public access; they cited no constitutional provision or precedent before the merits decision.
  • Because no constitutional claim was adjudicated, the Court did not address the separate statutory prerequisite of “no sufficient economic incentive” under AS 09.60.010(d)(2).
• Result: Partial fee award (20 %) stands.

3. Analysis

3.1 Precedents Cited and Their Influence

• City of Kodiak v. Kodiak Public Broadcasting Corp., 426 P.3d 1089 (Alaska 2018) – the anchor precedent. There, a Public Records Act plaintiff prevailed statutorily but not constitutionally; the Court denied full fees. Donkel & Cade relies heavily on Kodiak to reaffirm that “asserting” a constitutional claim means pleading and litigating it before judgment, not after.
• State v. Jacob, 214 P.3d 353 (Alaska 2009) – defined “asserting” a constitutional right for AS 09.60.010(c) purposes as “making a claim in a complaint or other filing requesting relief.” The Court quotes Jacob to show appellants never asserted substantive due process.
• Vote Yes for Alaska’s Fair Share v. Resource Development Council, 539 P.3d 482 (Alaska 2023) – cited for the Court’s independent-judgment review standard in statutory interpretation.
• Alaska Fish & Wildlife Conservation Fund line of cases (2012 & 2015) – provide the “avoid unnecessary constitutional questions” doctrine: if statutory grounds resolve the case, courts do not reach constitutional claims.
• Agency-review standards such as Lindhag v. DNR, 123 P.3d 948 (Alaska 2005) – referenced to explain “abuse of discretion” in administrative appeals.

3.2 Court’s Legal Reasoning

1. No constitutional issue was decided. The superior court’s ruling turned exclusively on AS 31.05.035 and 11 AAC 83.153. Its statement that DNR had “no reasonable basis in law” referred to standard agency-deference analysis, not to due-process doctrine.
2. Assertion vs. After-the-fact labeling. A litigant cannot transform a statutory victory into a constitutional one by characterising it as such in a subsequent fee petition. Constitutional claims must be framed, briefed, and decided on the merits.
3. Procedural and substantive due process. Although appellants mentioned procedural due process in briefing, the court expressly declined to address it. They explicitly disclaimed substantive due process in their administrative appeal. Therefore, they “prevailed” on none.
4. Public-records right. Alaska’s Constitution does not yet recognise an explicit, self-executing right of public access to government records. Absent an articulated constitutional source (e.g., free-speech clause or open-meetings parallels) the claim remained statutory.
5. Economic-incentive prong unnecessary. Because the appellants failed the “prevailing‐on‐a-constitutional-claim” prerequisite, the Court did not reach AS 09.60.010(d)(2)’s “sufficient economic incentive” analysis – though the superior court found against them on that point as well.

3.3 Impact on Future Litigation and the Development of Alaska Law

• Heightened Pleading Discipline. Lawyers seeking full fees must plead and argue constitutional theories early and consistently; boiler-plate references will not suffice.
• Judicial Economy Doctrine Strengthened. The decision deepens Alaska’s tradition of resolving cases on non-constitutional grounds where possible, limiting gratuitous constitutional pronouncements.
• Clarifies Cost-Benefit Calculus. Potential public-interest plaintiffs now have clearer guidance: unless they both assert and win a constitutional point addressed by the court, they risk recovering only partial fees even if they secure complete relief.
• Government Agency Strategy. Agencies may be less concerned about facing full-fee exposure when only statutory compliance is at issue; but they remain vulnerable when a plaintiff’s constitutional theory is squarely joined.
• Possible Legislative Response. Advocates of broader fee recovery for public-records suits may again petition the legislature to amend AS 09.60.010 or the Public Records Act to guarantee full fees regardless of constitutional grounding.

4. Complex Concepts Simplified

AS 09.60.010(c) – “Constitutional litigant” fee statute

An Alaska fee-shifting provision requiring courts to award full reasonable fees to a party who (1) asserts a constitutional claim, (2) prevails on that claim, and (3) lacked sufficient economic incentive to sue. It is distinct from the default partial-fee system (typically 20 %).

“Prevail on a constitutional claim”

Not merely winning the case; the litigant must win because the court accepted and decided a constitutional argument. Victory on statutory or regulatory grounds alone does not qualify.

Procedural vs. Substantive Due Process

Procedural due process concerns fair procedures (notice, opportunity to be heard); substantive due process protects against government actions that are fundamentally unfair or irrational regardless of process. In Alaska, substantive due process claims face a “shocks the universal sense of justice” standard.

Standard Partial-Fee Award

Under Alaska Appellate Rule 508(e)(4) a prevailing party in an administrative appeal usually receives 20 % of “necessarily incurred” fees—a policy aimed at discouraging unnecessary litigation and excessive fees.

Abuse of Discretion (Agency Context)

A court finds an agency abused its discretion when its decision lacks a reasonable factual or legal basis or is contrary to governing regulations. This is not synonymous with a constitutional violation.

5. Conclusion

Donkel & Cade reaffirms a critical but sometimes overlooked aspect of Alaska’s constitutional fee-shifting regime: full attorney-fee recovery is reserved for litigants who both raise and win constitutional arguments that the court must address in reaching its decision. The ruling does not create sweeping new doctrine; instead, it consolidates and clarifies existing precedent (Kodiak, Jacob) and underscores the judiciary’s preference for statutory resolution where possible.

For practitioners, the message is clear. If constitutional principles are central to a case—and full fee recovery is desired—those principles must be specifically pleaded, thoroughly briefed, and pressed through to a merits determination. Otherwise, even a decisive statutory victory may yield only the routine partial award. By anchoring the “prevailing constitutional claimant” standard to concrete, on-the-merits constitutional adjudication, the Alaska Supreme Court preserves the delicate balance between encouraging public-interest litigation and preventing automatic, open-ended fee exposure for the state and other defendants.