Trask v. Ketchikan Gateway Borough

Leta Trask owns a house in the Ketchikan Gateway Borough and wrote a letter to the Borough asking if she would need a permit to refresh and modify a painted Biblical message on her roof. The Borough responded that she did not need a permit because the message was not a sign as defined by the Borough Code. The painted message read: “DO UNTO OTHERS…:BY YOUR DEEDS YOU’RE KNOWN: LOVE YOUR NEIGHBOR: YOU’RE WELCOME.” The message being modified resulted from a dispute with her uphill neighbors as set forth in Lybrand v. Trask, 31 P.3d 801.

After some of Trask’s neighbors complained, the Borough sent her several letters informing her that the message violated the Borough Code and instructed her to remove it. She did not do so and the Borough filed a superior court complaint seeking to enjoin her from displaying the message and seeking a $200 fine. Trask counterclaimed alleging that as applied to her the ordinance violated her constitutional right to free speech. She also sought relief under 42 U.S.C. § 1983 as being deprived of constitutional rights by a government entity.

Following motion practice, the superior court dismissed the Borough’s enforcement action finding the roof message was not a sign under the Borough Code. It also ruled that Trask lacked standing to challenge the constitutionality of the Code provision. The § 1983 action was dismissed as the superior court concluded that there was no constitutional violation and Trask did not have standing to litigate the constitutionality of the ordinance. Trask was ruled the prevailing party and awarded 20% of her actual reasonable attorney’s fees under Rule 82(b)(2). She appealed the superior court’s dismissal of her § 1983 claim and its decision to not award enhanced attorney’s fees.

The Supreme Court finds that Trask has standing to bring her § 1983 claim citing with approval its past holding “…that an identifiable trifle is enough for standing to fight out a question of principle.” It further held that it was error to dismiss her § 1983 claim as she had alleged sufficient violation of her First Amendment rights to survive a motion to dismiss. The Rule 82 attorney’s fees award is vacated, and the Supreme Court points out that she may be entitled to attorney’s fees under federal statute if she prevails on her § 1983 claim on remand.

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