Keller v. French
Full Opinion (html_with_citations)
OPINION
I. INTRODUCTION
Claiming that a legislative investigation into the governorâs dismissal of the Public Safety Commissioner violated the Alaska Constitutionâs fair and just treatment clause, five legislators sued two other legislators, a permanent legislative committee, and the investigator to halt the investigation. The five legislators argue on appeal that the superior court erred in denying their motion for a temporary restraining order and preliminary injunction, in reasoning that there was no justiciable dispute, and in dismissing their complaint. We affirmed in a highly expedited dispositive order issued October 9, 2008. This opinion explains why we did so. We hold that the five legislators did not have standing to claim in this case that there was a violation of the fair and just treatment clause.
II.FACTS AND PROCEEDINGS
Governor Sarah Palin dismissed Public Safety Commissioner Walter Monegan on July 11, 2008. On July 28 the Alaska Legislative Council, a bipartisan,
The Legislative Council, chaired by Senator Kim Elton, chose Senator Hollis French to act as the investigationâs project director. Former state prosecutor Stephen Branch-flower was selected as the independent investigator. Branchflower was originally expected to produce a report to be released on October 31, 2008, but the release date was later changed to October 10.
On September 16 five state legislators
The defendants responded on September 24 with a motion to dismiss. On September 25 the Keller plaintiffs moved for a temporary restraining order and preliminary injunction to stop the investigation immediately-
Also on September 25, seven state employees who had been subpoenaed in the investigation to appear before the Senate Judiciary Committee commenced a separate lawsuit, Case No. 3AN-08-10780 Cl, challenging the validity of their subpoenas.
They sued the subpoenas in rem and Senator French, Senator Lyda Green, and the Senate Judiciary Committee.
The superior court consolidated the two lawsuits.
After conducting an October 2 hearing on the Keller plaintiffsâ temporary restraining order, the superior court ruled that the claims of the Keller and Kiesel plaintiffs raised nonjusticiable political questions, denied the motion for injunctive relief, and dismissed both complaints.
On October 3 the Keller plaintiffs filed their appeal in this court and asked us to expedite the appeal. They sought an appellate decision by October 9, 2008, one day before Branchflower was then expected to release the results of the investigation. The Kiesel plaintiffs filed notice with us that they would not participate in the appeal. The active appellees in this appeal are Senator French, Senator Elton, Branchflower, and the Legislative Council (the defendants in the Keller lawsuit) and Senator Green and the Senate Judiciary Committee (two of the defendants in the Kiesel lawsuit).
Also on October 3 we granted the Keller plaintiffsâ motion for an expedited appeal. The parties submitted highly expedited briefs.
We heard oral argument on October 8. On October 9, we issued a dispositive order stating:
Appellants are six legislators who claim that the Alaska Legislative Councilâs investigation into the dismissal of Public Safety Commissioner Walter Monegan is unlawful and should be enjoined. The superior court denied the' appellantsâ Motion for Temporary Restraining Order and granted the Motion to Dismiss submitted by the 'â Alaska Legislative Council and the other defendants.
At the request of.the appellants for a decision no later than today, October 9, 2008, we heard the appeal on an expedited basis. On consideration of the October 6, 2008 appellantsâ brief, the October 6, 2008 amicus curiae brief, the October 7, 2008 appelleesâ brief, and the oral argument held on October 8, 2008,
It is Ordered: The order of the superi- or court issued on October 2, 2008 granting the Motion to Dismiss is Affirmed. An opinion will follow.C9 ]
III. STANDARD OF REVIEW
Whether a party has standing to sue is a question of law that we review de novo.
IV. DISCUSSION
The parties have focused on two main issues, either of which is potentially disposi-tive: (1) whether the Keller plaintiffs have standing to bring this suit; and (2) whether, as the superior court held, the entire dispute is not justiciable. Our resolution of the standing issue makes it unnecessary to reach the other issue.
A. Whether the Keller Plaintiffs Have - Standing To Challenge the French Defendantsâ Alleged Constitutional Violation
Standing is a ârule of judicial self-restraint based on the principle that courts should not resolve abstract questions or issue advisory opinions.â
1. Citizen-taxpayer standing
To establish citizen-taxpayer standing, plaintiffs must show that the case is of public significance and that they are appropriate plaintiffs.
We agree' with the Keller plaintiffs that they were not âsham plaintiffsâ and that they were capable of competently advocating their positions. And we assume, without deciding, that an alleged violation of the fair and just treatment clause is a matter of public significance. But there is nonetheless a'substantial question here as to whether other persons who are more directly affected have sued or are likely to sue.
In addition to the subpoenaed plaintiffs, as of October 9 when we issued otir dispositive order there was at least one other potential plaintiff who was directly affected by the investigation and who was fully capable of suing. The Keller plaintiffs concede that Governor Palin was âarguably more directly concerned,â but argue that she is âunlikely to sue.â They argue that the governor stated that she would cooperate with the investigation, and that this, along with the fact that she was in the middle of a national election campaign, indicated that she was hot going to bring suit.
We have denied citizen-taxpayer standing on similar grounds before. In Kleven v. Yukon-Koyukuk School District a former employee who filed a grievance but resigned before it was resolved sued to challenge his former employerâs grievance process.
Comparing other potential, partiesâ claims with those of the Keller plaintiffs reveals how indirectly, if at all, the investigation affected the Keller plaintiffs. The fair and just treatment clause was written to
As the French defendants argue, it appears the Keller plaintiffs are attempting to assert the individual rights of potential or âimaginaryâ third parties. We have never before allowed citizen-taxpayer standing to be used in this way. The Keller plaintiffs assert that we did so in State v. Planned Parenthood of Alaska.
As we have noted before, â[generally, a litigant lacks standing to assert the constitutional rights of another.â
2. Interest-injury standing
The Keller plaintiffs alternatively argue that they had interest-injury standing to' sue. To establish interest-injury standing plaintiffs must demonstrate that they have a âsufficient personal stakeâ in the outcome of the controversy
In a section of their brief unrelated to the issue of standing, the Keller plaintiffs contend that âthey and Alaskans face damaged reputations if the investigation continues.â They do not develop this argument further, and in oral argument on appeal asserted only that they had citizen-taxpayer standing. It is not self-evident that the investigation was likely to cause the Keller plaintiffs any sort of harm, nor was the nature of any possible harm so self-evident that we must take judicial notice of it. Any claim of interest-injury standing based on reputational harm is not adequately briefed and is therefore waived on appeal.
The Keller plaintiffs also seem to argue that they have interest-injury standing because the subpoenaed plaintiffs in the consolidated case had interest-injury standing. But the standing of the Kiesel plaintiffs does not confer standing on the Keller plaintiffs. Each partyâs standing is evaluated independently, and one partyâs standing does not confer standing on another.
Given the Keller plaintiffsâ lack of standing to bring this suit, we do not consider whether it was error for the superior court to hold that the Keller plaintiffsâ complaint raises nonjusticiable political questions.
V. CONCLUSION
We AFFIRM the superior courtâs denial of the Keller plaintiffsâ motion for a temporary restraining order and preliminary injunction, and its grant of the French defendantsâ motion to dismiss.
WINFREE, Justice, with whom CARPENETI, Justice, joins, concurring.
. The Legislative Council consists of seven representatives and seven senators. Ten are Republicans; four are Democrats.
. AS 24.20.010-.020.
.A "unanimous voteâ is a vote in which every voter concurs. Blackâs Law Dictionary 1607 (8th ed.2004). Either eleven or twelve of the councilâs fourteen members voted to approve the motion. No members voted against it. The two or three remaining members were present at the meeting but apparently did not vote.
. These five legislators are Representatives Wes Keller, Mike Kelly, and Bob Lynn, and Senators Fred Dyson and Tom Wagoner. Plaintiffs moved in the superior court to file an amended complaint that would include Representative Carl Gatto as a party, but the superior court did not rule on the motion. It was not clear to the court when we issued our dispositive order that Representative Gatto should not be treated as an appellant. Our dispositive order counted Representative Gatto and included him in the caption. We have corrected the caption here.
. The seven state employees who sued are Dianne Kiesel, Annette Kreitzer, Janice Mason, Nicki Neal, Michael Nizich, Kristina Perry, and Brad Thompson.
. The Kiesel plaintiffs are automatically classified in this appeal as appellees per Alaska Appellate Rule 204(g). But in this opinion we use âappelleesâ to refer only to the individuals and legislative entities sued in personam in the consolidated cases. The seven employees later filed their own separate appeal, Case No. S-13322. That appeal is pending.
. We commend the parties and their counsel for the excellence of their briefs and arguments, for their procedural cooperation, and for the assistance they have given this court.
. Article I, section 7 of the Alaska Constitution â provides: "No person shall be deprived of life, liberty; or property, without due process of law. The right of alt persons to fair and just treatment in the course of legislative and executive investigations shall not he infringed.â (Emphasis added.) The emphasized text is commonly referred to as the "fair and just treatment clause.â
. Keller v. French, 194 P.3d 364 (Alaska 2008).
. St. Paul Church, Inc. v. Bd. of Trs. of the Alaska Missionary Conference of the United Methodist Church, Inc., 145 P.3d 541, 549-50 (Alaska 2006).
. Ruckle v. Anchorage Sch. Dist., 85 P.3d 1030, 1034 (Alaska 2004).
. The Keller plaintiffs state that "[t]he superior court correctly found that Appellants!] have standing to assert[] their claims.â But the superior court actually resolved the case while âfa]s-suming that the plaintiffs have standing to assert such claims.â (Emphasis added.)
. Trustees for Alaska v. State, 736 P.2d 324, 329 (Alaska 1987).
. Ruckle, 85 P.3d at 1034-37 (holding that superior court did not err in concluding plaintiff lacked citizen-taxpayer standing because another plaintiff more directly affected had already brought suit raising nearly identical claims).
. The final brief was submitted October 7 and oral argument took place October 8. We issued our dispositive order October 9, 2008. Keller v. French, 194 P.3d 364 (Alaska 2008). The election took place November 4, 2008.
. Kleven v. Yukon-Koyukuk Sch. Dist., 853 P.2d 518, 526 (Alaska 1993); see also State v. Lewis, 559 P.2d 630, 635 (Alaska 1977) (holding that party had taxpayer standing in part because âthere is no one in a better position to complain of the constitutional violations alleged hereâ). But see Trustees for Alaska, 736 P.2d at 330 (holding that party had standing even though more directly affected potential plaintiff could have sued because that potential party âha[d] not sued nor [were] there any indications that he plan[ned] to do soâ); Baxley v. State, 958 P.2d 422, 429 (Alaska 1998) ("The' mere possibility that another party might sue, however, does not necessarily justify a denial of standing.â).
.Kleven, 853 P.2d at 526.
. OâLeary v. Superior Court, Third Jud. Dist., 816 P.2d 163, 172 (Alaska 1991).
. Even though the Keller plaintiffs fault the investigation in part because it fails to identify specific "targetsâ other than the governor, this does not mean, under the circumstances of this case, that they should have standing. We assume that any target revealed later during the investigationâs course likewise would be fully capable of raising a claim of constitutional abuse if they thought they were being treated unfairly and unjustly under article 1, section 7.
. State v. Planned Parenthood of Alaska, 35 P.3d 30, 34 (Alaska 2001).
. Id. at 34. We held that physician-plaintiffs had standing to challenge a statute that required minors seeking abortions to first obtain parental consent. Id. In addition to interest-injury standing, the physicians had standing on the separate "universally settled" grounds that "physicians have standing to challenge abortion laws on behalf of prospective patients.â Id. We did not use the term third-party standing, but cited to similar cases that based standing on third-party standing analysis. Id.
. State ex rel. Depâts of Transp. & Labor v. Enserch Alaska Constr., Inc., 787 P.2d 624, 630 n. 9 (Alaska 1989) (citing Falcon v. Alaska Pub. Offices Commân, 570 P.2d 469, 475 n. 20 (Alaska 1977); Wagstaff v. Superior Court, 535 P.2d 1220, 1225 (Alaska 1975)).
. Id. at 630 n. 9 (citing Bonjour v. Bonjour, 592 P.2d 1233, 1241 n. 15 (Alaska 1979) (holding that parent has standing to assert childâs constitutional rights); Falcon, 570 P.2d at 475 (holding that standing may be conferred on third party when interested partyâs attempt to vindicate rights would forfeit these very rights)); see also Gilbert M. v. State, 139 P.3d 581, 587 (Alaska 2006) (stating that "we have ... 'allowed third party standing where a special relationship exists between the plaintiff and the third party' â (internal citation omitted)).
. Ruckle v. Anchorage Sch. Dist., 85 P.3d 1030, 1040 (Alaska 2004) (quoting Moore v. State, 553 P.2d 8, 23 (Alaska 1976)).
. Alaskans for a Common Language, Inc. v. Kritz, 3 P.3d 906, 915 (Alaska 2000) (citing Trustees for Alaska v. State, 736 P.2d 324, 327 (Alaska 1987)).
. Ruckle, 85 P.3d at 1040-41 (quoting Trustees for Alaska, 736 P.2d at 327).
. See Adamson v. Univ. of Alaska, 819 P.2d 886, 889 n. 3 (Alaska 1991) ("[W]here a point is given only a cursory statement in the argument portion of a brief, the point will not be considered on appeal.â (internal citations omitted)).
. See, e.g., State v. Planned Parenthood of Alaska, 35 P.3d 30, 34 (Alaska 2001) (evaluating as separate questions whether two groups of plaintiffs had standing).