Alaska Employment Law

Section 1983 fee awards for nominal damages:  The 9th Circuit has affirmed an award of $136,000 in fees in a § 1983 federal civil rights suit (excessive force) where the plaintiff recovered only nominal damages, because the plaintiff sought only nominal damages and achieved a significant public result.  The panel wrote:

A plaintiff who receives a nominal damage award for a § 1983 claim is a prevailing party under § 1988. Farrar, 506 U.S. at 112. However, under Farrar, “[i]n a civil rights suit for damages . . . the awarding of nominal damages [ ] highlights the plaintiff’s failure to prove actual, compensable injury.” Id. at 115. A nominal damages award often “accomplishe[s] little beyond giving petitioners ‘the moral satisfaction of knowing that a federal court concluded that [their] rights had been violated’ in some unspecified way.” [] Therefore, “[w]hen a plaintiff recovers only nominal damages because of his failure to prove an essential element of his claim for monetary relief, the only reasonable fee is usually no fee at all.” []We follow the general rule, derived from Justice O’Connor’s concurrence in Farrar, that “[i]f a district court chooses to award fees after a judgment for only nominal damages, it must point to some way in which the litigation succeeded, in addition to obtaining a judgment for nominal damage.” []

There are three factors a district court should consider in determining whether a plaintiff succeeded in some way
beyond the judgment for nominal damages. First, the court should consider “[t]he difference between the amount recovered and the damages sought,” which in most nominal damages cases will disfavor an award of fees. []  Second, the court should consider “the significance of the legal issue on which the plaintiff claims to have prevailed.” []  Third, the court should consider whether the plaintiff “accomplished some public goal.”

Mahach-Watkins v. Depee, ___ F.3d ___ (9th Cir. Feb. 1, 2010)(citations omitted)

Palin’s emails and the Public Records Act:  Anchorage Superior Court Judge Patrick McKay’s order granting summary judgment for ex-Gov. Palin is here (courtesy of the ADN).  McKay held that emails on Palin’s private accounts, even if they relate to public business, are not covered by the Public Records Act (AS 40.25.100-220), because the state (Palin) didn’t intend to preserve them - the often-overlooked second of the two-part statutory definition of “public records” in AS 40.25.220(3):

“[P]ublic records” means books, papers, files, accounts, writings, including drafts and memorializations of conversations, and other items, regardless of format or physical characteristics, that are developed or received by a public agency, or by a private contractor for a public agency, and that are preserved for their information value or as evidence of the organization or operation of the public agency.

(emph. added). 

McKay held that the face of the statute is clear, and not contrary to legislative intent.

McLeod v. Palin, Case No. 3AN-08-10869CI (3rd Jud. Dist. Order of Jan. 23, 2010 )

Don Mitchell represented McLeod; AAG Michael Mitchell, also of Anchorage, represented the state.

Update:  Attorney Mike Hostina responds:

Your summary may be a little broad. On p. 13 the court says that:

“If McLeod had alleged that the Governor was using private email accounts to exchange substantive information (thereby rendering them record emails) and then simply deleting them because she knew that it would be difficult or impossible to retrieve these deleted emails from the private Yahoo server, that would be a different story, and she might present a valid claim for relief-not because she was using private emails, but because she failed to preserve record emails. In other words, this issue turns on preservation, not on the emails’ provenance. . . . McLeod, though, claims not a lack of preservation, but simply a blanket order barring the use of private emails.” 

The strict holding might be that the Public Records Act did not bar Governor Palin’s use of private email or require Governor Palin to preserve all email, public or private, related to official business.

The holding arguably permits a public agency to argue that ANY email, PUBLIC OR PRIVATE, that has not been preserved affirmatively for its information value/evidence of organization or operation of the public agency, or that is not subject to other preservation requirements, is not a public record.

The decision does not address the question of whether a public agency, once it receives a request, is under an obligation to preserve all emails that may be in dispute ( e.g., still exist but have not been preserved affirmatively.)  However, because the court states that a plaintiff may state a claim by arguing that a duty to preserve was violated, retaining the email would seem to be wise.   As such this opinion may reflect judicial restraint and have limited precedential value.