Editor’s note: This story has been updated to include a comment from Frank Griswold sent in an email that he clarified he had intended for publication. The story also has been changed to clarify that the Griswold v. Wrede decision was a partial victory for both sides.
The Alaska Supreme Court on Friday found the Kenai Superior Court violated the due process rights of citizen activist Frank Griswold in his appeal of a Homer Advisory Planning Commission decision to the Homer City Council.
The Supreme Court said the Superior Court dismissed Griswold’s appeal for lack of standing, even though neither party raised the issue. Griswold had challenged a conditional use permit the HAPC approved in January 2014 for a downtown development off Heath Street by landowner Jose Ramos.
“Because Griswold did not have notice that his standing was at issue, his due process rights were violated,” Supreme Court Justice Craig Stowers wrote in his decision for Frank Griswold v. Homer Board of Adjustment et al.
The Supreme Court reversed a Kenai Superior Court affirming the conditional use permit and remanded the case to the superior court to decide Griswold’s appeal on its merits.
In reaction to the court rulings, Homer City Manager Katie Koester wrote in an email that “Griswold v. Homer board of Adjustment et al. was a bit of an oddity for the city, as the Superior Court judge dismissed this case on his own, finding that Mr. Griswold did not have standing to appeal the conditional use permit despite the fact that neither party argued this point. … The City is looking forward to the court’s decision on the substantive issues of the case, which will provide the city important guidance regarding municipal land use and administrative proceeding matters.”
Griswold filed the cases pro se, or without the assistance of an attorney, as he has done in several Supreme Court cases challenging city actions.
“The City is content with the Supreme Court’s actions and does not anticipate significant additional legal expenses in either case,” Koester wrote.
In response to the decisions, in an email Griswold wrote, “Even a blind squirrel finds a nut once in a while. The City is paying good coin for bad legal advice. Heads should roll.”
The decision released Sept. 14 was part of two Griswold cases the Supreme Court ruled on. In a related case where Griswold sought public records, including invoices for attorney fees, for the appeal of the Ramos CUP, the Supreme Court delivered a partial victory for the city and for Griswold.
In Griswold v. Homer City Council and Walt Wrede (the former city manager), the Supreme Court affirmed a superior court order that communications related to a June 2014 decision were privileged and thus exempt from the Alaska Public Records Act. It also affirmed that the city did not commit contempt of court when it failed to respond to a superior court order in a timely manner.
However, the Supreme Court vacated a Superior Court decision that said attorney invoices Griswold requested were exempt from the Public Records Act. It also vacated a Superior Court decision that the city was the prevailing party and could be awarded attorney fees.
The court remanded to the superior court consideration of attorney invoices “in light of our discussion of this opinion.” The Supreme Court directed the superior court to review the invoices and “redact the attorneys’ mental impressions, conclusions, opinions, or legal theories.” The Supreme Court thus allowed for the possibility of some invoices to be released as Griswold had argued.
Koester said the city “expects to remain the prevailing party for purposes of attorney’s fees in this case. The Supreme Court generally vacates the lower court’s attorney’s fee award when they send a case back down for more findings. The Superior Court will then reissue an attorney’s fee award after issuing its new judgment.”
In the records request case, the Supreme Court noted that the Superior Court applied a pre-2003 public interest litigant analysis and concluded Griswold was not a public interest litigant. Griswold argued the Superior Court erred because he, not the city, had been the prevailing party on appeal.
“Because we vacate part of the superior court’s decision, we also vacate its prevailing party decision and its attorney’s fees award,” Stowers wrote. “We remind the superior court that the Alaska Legislature abrogated and replaced the common law public interest litigant doctrine with a constitutional claimant provision.”
That statute redefined a public interest litigant as “claims concerning rights under the United States Constitution or the Constitution of the State of Alaska upon which the claimant ultimately prevailed.”
Reach Michael Armstrong at firstname.lastname@example.org.