Keller v. French
Keller v. French
Opinion of the Court
OPINION
I. INTRODUCTION
Claiming that a legislative investigation into the governor’s dismissal of the Public Safety Commissioner violated the Alaska Constitution’s 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 investigation’s 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 plaintiffs’ 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 plaintiffs’ 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 Council’s investigation into the dismissal of Public Safety Commissioner Walter Monegan is unlawful and should be enjoined. The superior court denied the' appellants’ Motion for Temporary Restraining Order and granted the Motion to Dismiss submitted by the '■ 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 appellants’ brief, the October 6, 2008 amicus curiae brief, the October 7, 2008 appellees’ 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 Defendants’ Alleged Constitutional Violation
Standing is a “rule of judicial self-restraint based on the principle that courts should not resolve abstract questions or issue advisory opinions.”
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 “sham plaintiffs” 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 “arguably more directly concerned,” but argue that she is “unlikely to sue.” 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 employer’s grievance process.
Comparing other potential, parties’ 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 “imaginary” 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, “[generally, a litigant lacks standing to assert the constitutional rights of another.”
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 “sufficient personal stake” in the outcome of the controversy
In a section of their brief unrelated to the issue of standing, the Keller plaintiffs contend that “they and Alaskans face damaged reputations if the investigation continues.” 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 party’s standing is evaluated independently, and one party’s standing does not confer standing on another.
Given the Keller plaintiffs’ lack of standing to bring this suit, we do not consider whether it was error for the superior court to hold that the Keller plaintiffs’ complaint raises nonjusticiable political questions.
V. CONCLUSION
We AFFIRM the superior court’s denial of the Keller plaintiffs’ motion for a temporary restraining order and preliminary injunction, and its grant of the French defendants’ 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 vote” is a vote in which every voter concurs. Black’s Law Dictionary 1607 (8th ed. 2004). Either eleven or twelve of the council’s 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 “appellees” 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 ■ 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.” (Emphasis added.) The emphasized text is commonly referred to as the "fair and just treatment clause.”
. 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.” But the superior court actually resolved the case while “fa]s-suming that the plaintiffs have standing to assert such claims.” (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 “there is no one in a better position to complain of the constitutional violations alleged here”). 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 “ha[d] not sued nor [were] there any indications that he plan[ned] to do so”); 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.”).
.Kleven, 853 P.2d at 526.
. O’Leary 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 "targets” 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 investigation’s 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.” 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. Dep’ts of Transp. & Labor v. Enserch Alaska Constr., Inc., 787 P.2d 624, 630 n. 9 (Alaska 1989) (citing Falcon v. Alaska Pub. Offices Comm’n, 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 child’s constitutional rights); Falcon, 570 P.2d at 475 (holding that standing may be conferred on third party when interested party’s 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' ” (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.” (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).
Concurring Opinion
with whom CARPENETI, Justice, joins, concurring.
I write separately to emphasize two separate but intertwining aspects of my support for the court’s decision.
The constitutional right to fair and just treatment during a legislative investigation is a personal right. The court expressly notes that without a basis for third-party standing, as in this case, a litigant generally lacks standing to assert the personal constitutional rights of another. This strongly suggests to me that although the potential violation of an individual’s personal constitutional rights may be a matter of great interest to the public, at least when the individual is the governor, it is not a matter of “public significance” upon which citizen-taxpayer standing may be grounded. Our cases granting citizen-taxpayer standing have involved matters affecting rights and interests beyond a single individual.
The Keller plaintiffs’ oblique connection to the constitutional right to fair and just treatment suggests yet another reason to deny citizen-taxpayer standing. In contrast to the Kiesel plaintiffs’ ease, the core of the Keller plaintiffs’ case does not really concern the protection of individual rights — it concerns a dispute between legislators, in their official capacities, about the power and authority of the Legislative Council and how legislative
. Malone v. Meekins, 650 P.2d 351, 356, 359 (Alaska 1982) (declining to intervene in dispute between legislators about election of house officers, stating, among other things: (1) although "the judicial branch of government has the constitutionally mandated duty to ensure compliance with the provisions of the Alaska Constitution, including compliance by the legislature .... we believe that a proper recognition of the respective roles of the legislature and the judiciary requires that the latter not intervene [in the internal organization of the legislature]” and (2) that "except in extraordinary circumstances, as where the rights of persons who are not members of the legislature are involved, it is not the function of the judiciary to require that the legislature follow its own rules.”); Abood v. Gorsuch, 703 P.2d 1158, 1164 (Alaska 1985) (affirming Malone v. Meekins holding regarding non-justici-ability of claims between legislators about violations of legislative rules); Abood v. League of Women Voters of Alaska, 743 P.2d 333, 339 (Alaska 1987) (same, but reiterating that non-justicia-bility would not bar review of claim that violation of legislative rules infringed on the rights of a third party).
. Abood v. League of Women Voters of Alaska, 743 P.2d at 339; Malone, 650 P.2d at 359.
. See Trustees for Alaska v. State, 736 P.2d 324, 328-29 (Alaska 1987) (and cases discussed therein); Baxley v. State, 958 P.2d 422, 428-29 (Alaska 1998); State v. Enserch Alaska Construction, Inc., 787 P.2d 624, 630 (Alaska 1989).
Reference
- Full Case Name
- Representative Wes KELLER; Representative Mike Kelly; Senator Fred Dyson; Senator Tom Wagoner; And Representative Bob Lynn, Appellants, v. Senator Hollis FRENCH; Senator Kim Elton; Stephen E. Branchflower; Alaska Legislative Council; Senator Lyda Green; Senate Judiciary Committee; Dianne Kiesel; Annette Kreitzer; Janice Mason; Nicki Neal; Michael Nizich; Kristina Perry; And Brad Thompson, Appellees
- Cited By
- 50 cases
- Status
- Published