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Kleven v. Yukon-Koyukuk School District (6/4/93), 853 P 2d 518
NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to
the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order that corrections
may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
BRUCE A. KLEVEN, )
Appellant, ) File No. S-4580/4973
v. ) 4FA 90 678 CI
YUKON-KOYUKUK SCHOOL DISTRICT, ) O P I N I O N
Appellee. ) [No. 3964 - June 4, 1993]
Appeals from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Richard D. Savell, Judge.
Appearances: Robert John, Law Offices of
William R. Satterberg, Jr., Fairbanks, for
Appellant. Paul H. Cragan, Hughes, Thorsness,
Gantz, Powell & Brundin, Fairbanks, for
Before: Moore, Chief Justice, Rabinowitz,
Burke, Matthews and Compton, Justices.
In this consolidated appeal, Bruce Kleven challenges
several of the trial court's rulings which had the effect of
denying him any relief for the allegedly improper employment
practices of Yukon-Koyukuk School District (YKSD), his former
employer. We conclude that the trial court erred in dismissing
Kleven's first action on the grounds that he failed to exhaust
administrative remedies, and, thus, remand the case for further
proceedings. We affirm the trial court's dismissal of Kleven's
second action on the grounds that he lacked standing.
I. FACTS & PROCEEDINGS
Kleven, a tenured educator, worked for YKSD from 1976
until December 1990. During the period relevant to this appeal,
he was employed as the district's Director of Supplemental
Programs. On March 28, 1990, Fred Lau, the superintendent of
YKSD, sent Kleven a written evaluation informing him that his job
performance as director was unsatisfactory. Lau indicated that
he might remove Kleven from his director position and reassign
him to a less responsible coordinator position.
After receiving this evaluation, Kleven immediately
retained an attorney in order to pursue his grievances with Lau
and the district. Through their respective attorneys, Kleven and
Lau fought over many substantive and procedural matters. The
disputed substantive issue was whether YKSD had the legal
authority to reassign Kleven to a position with less
responsibility and less pay.1 The most serious procedural
dispute concerned whether YKSD was statutorily and/or
contractually obligated to provide Kleven with an administrative
grievance procedure ending in binding arbitration.
Alaska Statute 14.20.590, which has since been
Negotiations agreements executed after
July 1, 1975 shall define "grievances" and
provide for grievance procedures for the
certificated staff; the grievance procedure
shall provide that the final step in the
procedure shall be binding arbitration. The
negotiations agreement shall provide a method
for the selection of an arbitrator.
As a certificated member of the YKSD staff, Kleven argued that he
was statutorily entitled to binding arbitration regardless of the
actual terms of his contract. In addition, Kleven claimed that
he was contractually entitled to the grievance procedures laid
out in the negotiated agreement between YKSD and the Middle Yukon
Education Association (MYEA). The final step in the MYEA
agreement is binding arbitration.
In contrast, YKSD maintained that because Kleven was an
administrator, he was not a member of the MYEA bargaining unit
and was not entitled to binding arbitration either by statute or
his contract. YKSD instead offered Kleven a 4-step grievance
procedure known as "Policy No. 4.2." Policy No. 4.2 provides the
following steps: (1) employee attempts to resolve the grievance
with the immediate supervisor; (2) if unsuccessful, employee
reduces the grievance to writing and submits it to the
superintendent; (3) if still unresolved, the grievance must "be
presented to the Grievance Committee within five working days"
after the superintendent makes its decision; (4) if still
unresolved, the grievance is referred to the school board for a
It is clear from the record that by the middle of April
1990 Kleven had already proceeded, albeit informally, through the
first two steps of the grievance procedures of either Policy 4.2
or the MYEA negotiated agreement. The next step under the
negotiated agreement would have been arbitration. The next step
under Policy 4.2 would have been the presentation of the
grievances to a Grievance Committee.
It further appears from the record presented that no
Grievance Committee was ever formed. Instead, YKSD's attorney
wrote Kleven a letter on April 24th setting out the district's
legal position and instructing Kleven "to raise a complaint to
the School Board pursuant to board policy." Kleven replied with
a letter on April 30th stating that because YKSD had "determined
that Mr. Kleven is not covered by any aspect of the negotiated
agreement, including the grievance procedure, and that Mr. Kleven
may be reassigned duties or transferred at a loss of pay,
benefits, rights or property . . . you have left us no option but
to bring your assertions to judicial scrutiny."2
Although aware that a School Board meeting was
scheduled for May 8th,3 Kleven filed his first action in the
superior court on the same day he sent the letter to YKSD.
Kleven challenged the reassignment and the binding arbitration
decisions. He sought unspecified damages as well as an
injunction requiring YKSD to offer him a contract as remunerative
as his previous contract and also requiring YKSD to afford him a
grievance procedure ending in binding arbitration.
In August 1990 Kleven moved for partial summary
judgment on the issue of his entitlement to a contract for the
1990-91 school year on terms no less favorable than those he
enjoyed in 1989-90. YKSD responded with motions to strike
Kleven's summary judgment motion and convert the case to an
administrative appeal. YKSD also asserted that Kleven had failed
to exhaust his administrative remedies because he had not
presented his grievances at the school board meeting. YKSD
requested that the case be dismissed with prejudice.
While these motions were pending, Kleven applied for a
superintendent position in the Kake City School District. He
also assumed his new duties as Coordinator of Maintenance and
Special Projects. In December 1990 Kleven was offered and
accepted the Kake superintendent position. He resigned from YKSD
effective December 31, 1990.
Shortly thereafter, Superior Court Judge Richard D.
Savell denied Kleven's partial summary judgment motion as moot.
Judge Savell provided the following reason for his decision:
Kleven filed a motion for partial
summary judgment asking this Court to hold
that, by law, the school district was
required to renew his contract and that such
renewal had to be on terms no less favorable
than his former contract.
In support of other motions before
the Court, Kleven has submitted an affidavit
wherein he states that he has resigned his
position with YKSD and has taken other
employment outside the area. Since Kleven
has resigned his position for other
employment, his motion is DENIED as moot.
In February 1991 Kleven renewed his motion for partial
summary judgment, this time seeking the "benefits of a contract
on terms no less favorable than those he enjoyed in 1989-90." He
also moved to amend his complaint to assert a "constructive
In March 1991 both parties requested oral argument on
YKSD's motion to convert Kleven's original action into an
administrative appeal. Judge Savell granted the motion and
scheduled a hearing for March 19, 1991. However, prior to the
hearing, Judge Savell dismissed the first action with prejudice.
The judge ruled that the case was properly treated as an
administrative appeal and that Kleven had failed to exhaust
administrative remedies. The trial judge also awarded YKSD
$22,182.70 in costs and attorney's fees.
Meanwhile, in February 1991, Kleven filed a second
lawsuit seeking to compel YKSD to conduct hearings and take
action on a list of 48 grievances relating to his prior
employment with the district.5 After Kleven's first lawsuit was
dismissed, YKSD moved for summary judgment in the second lawsuit
arguing, among other things, that Kleven lacked standing to
pursue the grievances following his resignation from YKSD.
Kleven cross-moved for summary judgment claiming that
Superintendent Lau had refused to even bring the grievances to
the school board's attention and had prohibited Kleven from
bringing them himself.
After oral argument, Judge Savell ruled that Kleven
lacked standing to pursue the grievances under either an
"interest-injury"or "taxpayer-citizen"analysis. Judge Savell
concluded that Kleven's personal interest in the appropriate
grievance procedures expired when he resigned his position with
YKSD. The judge also determined that the issues presented in the
grievances were not of sufficient public interest to invoke
"taxpayer-citizen"standing and that, in any event, a pool of
more directly affected plaintiffs (i.e. current YKSD employees)
would be able to pursue the grievances if necessary.
Judge Savell further ruled that because Kleven was no
longer an "aggrieved employee,"YKSD was not required by its own
policies to further consider Kleven's grievances. The trial
judge noted that Kleven's wage claims had been resolved and
Having disposed of his wage claims,
the court cannot find a live controversy
between YKSD and Kleven that survived
Kleven's resignation. The remainder of
Kleven's grievances concern the
interpretation of a grievance policy to which
he is no longer subject and the correction of
working conditions that he no longer
encounters. Kleven is not seeking
reinstatement and there is no indication that
he will ever work for YKSD again.
After determining that no exceptions to the mootness doctrine
applied, the trial judge granted YKSD's summary judgment. He
then dismissed the second lawsuit with prejudice and awarded YKSD
$2,700 in attorney's fees which represented about 50% of YKSD's
entire fees for the second suit.
Kleven appealed the rulings from both lawsuits, and the
two appeals have been consolidated.
The First Lawsuit
A. The Mootness Ruling
Although Kleven brought two partial summary judgment
motions,6 the trial court only ruled on the first motion prior to
dismissing the entire lawsuit for failure to exhaust
administrative remedies.7 The trial court never reached the
merits of the legal issue presented (i.e. whether Kleven was
entitled to a contract on terms no less favorable than his
previous one) but instead denied the motion on the grounds that
it was moot.
The trial court obviously interpreted the first motion
as a request for a legal ruling that Kleven was entitled to a new
contract with the concomitant relief being an injunction ordering
YKSD to tender Kleven such a contract. As such, the trial court
correctly observed that the relief Kleven sought was not suitable
to his situation because Kleven had contractually bound himself
to work for another school district. It would likely have been a
futile gesture for YKSD to tender Kleven a contract if Kleven
would have had to breach his new employment contract in order to
accept the YKSD contract.8
However, the trial court's mootness ruling misses an
important point. Kleven had already worked as a coordinator for
several months under a contract which YKSD may have imposed on
him in violation of his statutory rights. The coordinator
position paid $10,000 less than Kleven's previous position so
there is no question that Kleven suffered financial harm during
this period.9 In his original complaint, Kleven sought not only
injunctive relief but damages as well. We conclude therefore
that Kleven's decision to take another position did not, by
itself, render the controversy moot. See United States v.
Geophysical Corp., 732 F.2d 693, 698 (9th Cir. 1984) ("A claim is
moot if it has lost its character as a present, live
controversy."); see also Hayes v. Charney, 693 P.2d 831, 834
(Alaska 1985) (discussing generally our discretionary mootness
rule as well as exceptions to the rule). Of course, even if the
mootness ruling was incorrect, the error was harmless if the
trial court was correct in subsequently dismissing the case due
to Kleven's failure to exhaust administrative remedies. See
Alaska R. Civ. P. 61.
B. The Exhaustion of Remedies Ruling
Without waiting for the scheduled hearing, Judge Savell
converted Kleven's original action into an administrative appeal.
[R. 488-89] Under our "functional test,"whenever a legislative
body, including a school board, "applies policy to particular
persons in their private capacities, instead of passing on
general policy or the rights of individuals in the abstract, it
is functioning as an administrative agency." Ballard v. Stich,
628 P.2d 918, 920 (Alaska 1981). Although Kleven filed his first
lawsuit before the school board had officially reassigned him to
a lower paying position, the action essentially challenges the
decision of the school board and its agent, Superintendent Lau,
to reassign him and to deny him a grievance procedure ending in
binding arbitration. See Diedrich v. City of Ketchikan, 805 P.2d
362, 365 (Alaska 1991) (In determining whether a case is
functionally an administrative appeal, "[t]he key question then
is whether the claim challenges a prior administrative
decision."). Thus, under Diedrich, this case was properly
changed to an administrative appeal.
The next question to be decided is whether the appeal
was properly dismissed for the failure to exhaust administrative
remedies.10 In dismissing Kleven's first lawsuit, the superior
court concluded that Kleven's:
immediate commencement of this civil
action deprived the Board of the opportunity
to develop a record, consider the matter, and
reverse the action if found to be improper.
His action has likewise prevented this Court
from reviewing the record and considering the
propriety of the Board's action, if it did
not act to Kleven's satisfaction.
. . .
A factual analysis on the issue of
summary judgment only supports the conclusion
that Kleven did not present his grievance to
the Board and has not offered a valid reason
for not doing so. . . .
While the procedures for presenting
his grievance were less than clear, it is not
seriously suggested that Kleven's attempt to
place the question before the Board was
frustrated by procedural ambiguity. Nor is
there any indication that Kleven made any
attempt to seek clarification.11
Finally, Kleven's argument that any
effort on his part would have been futile
cannot be sustained. This argument . . . is
unsupported by the record and is not capable
of being verified because Kleven never made
We have previously identified three questions which a
trial court must decide when applying the discretionary
exhaustion of remedies doctrine "1) is exhaustion of remedies
required; 2) did the complainant exhaust those remedies; and 3)
is the failure to exhaust remedies excused?" Eufemio v. Kodiak
Island Hosp., 837 P.2d 95, 98-99 (Alaska 1992).
The first question is answered through a balancing of
the complainant's interest in the availability of adequate
redress for his or her grievances and the agency's interest in
applying its special expertise, correcting its own errors,
developing a record, and discouraging the "deliberate flouting"
of its process. Id. at 99. In answering the second question, we
have required that the party seeking judicial review make "at
least a `good faith effort' to pursue the grievances internally."
Id. at 100. As for the final question, we have held that the
failure to exhaust remedies may be excused due to severe
impracticality or futility. See Beard v. Baum, 796 P.2d 1344,
1349 (Alaska 1990) (the failure to pursue administrative remedies
was excused where an employee could only proceed with the
assistance of a union representative and the representative
refused to assist him); Standard Alaska Prod. Co. v. State, Dep't
of Revenue, 773 P.2d 201, 209 (Alaska 1989) ("Where exhaustion of
administrative remedies will be futile because of the certainty
of an adverse decision, a party need not obtain a final agency
ruling before seeking judicial review.").
We agree with YKSD that Kleven's "precipitous"resort
to a judicial forum can hardly be called a "good faith effort"to
pursue administrative remedies. Nonetheless, in our view, the
controlling issue is the fact that Kleven sought judicial review
partly to determine the proper administrative procedure for his
situation. In a typical case, administrative procedures are
clear, and a claimant has only to follow them in order to seek
relief from an administrative body. In this case, however, the
parties disputed from the outset the procedural process which
Kleven was entitled to follow.
When Kleven filed his first lawsuit, he was already at
the binding arbitration stage of the grievance procedures
established under the MYEA negotiated agreement, the procedures
Kleven sought to employ. Kleven would have had to forego the
benefits of that agreement and add another step to the grievance
process if he had to go to the school board to gain access to
arbitration. The United States Supreme Court has held that the
"exhaustion of administrative remedies is not required when `the
question of the adequacy of the administrative remedy . . . [is]
for all practical purposes identical with the merits of [the
plaintiff's] lawsuit.'"Barry v. Barchi, 443 U.S. 55, 63, n.10
(1979) (quoting in part Gibson v. Berryhill, 411 U.S. 564, 575
(1973)). As far as the binding arbitration issue is concerned,
Kleven's claim falls within this rule.
We believe the threshold procedural dispute involved in
this case tips the balance in Kleven's favor on the exhaustion of
remedies issue. When the form of the administrative procedure is
itself contested, no further exhaustion of remedies is required.
Accordingly, we hold that the trial court abused its discretion
in dismissing Kleven's first lawsuit with prejudice. Our
resolution of this issue makes it unnecessary for us to address
the other claims of error raised by Kleven with regard to his
On remand, the superior court should first determine
whether Kleven is entitled to the grievance procedures provided
in the MYEA negotiated agreement or only to the more limited
procedures established under Policy 4.2. The superior court
should then remand the case to the appropriate administrative
body for further proceedings. Because YKSD is no longer the
prevailing party, the attorney's fee award for the first lawsuit
must also be vacated.
The Second Lawsuit
A. The Standing Ruling
Our cases have identified two types of standing:
interest-injury and taxpayer-citizen. Trustees for Alaska v.
State, 736 P.2d 324, 327 (Alaska 1987), cert. denied, 486 U.S.
1032 (1988). The trial court concluded that Kleven failed to
establish standing to pursue his second lawsuit under either
theory.13 We agree.
Under the interest-injury approach, a "party asserting
standing [must demonstrate] a sufficient 'personal stake' in the
outcome of the controversy to ensure the requisite adversity."
Hoblit v. Commissioner of Natural Resources, 678 P.2d 1337, 1340
(Alaska 1984). Kleven argues that he has interest-injury
standing because he continues to assert damage claims "with
respect to grievances concerning binding arbitration"and because
he "is seeking reinstatement to his former position"and would
therefore be subject to the rules and conditions he seeks to have
reviewed. [At. 34-35]
The problem with this argument is that Kleven was not
asserting a claim for constructive discharge in his second
lawsuit. The trial court noted this in making its ruling. The
issue then is whether an employee who starts a grievance process
and subsequently resigns has standing to force the employer to
continue with the process and remedy problems presumably for the
benefit of those employees who remain. Even under our liberal
standing rules, we do not believe Kleven has established a
sufficient personal stake in the case to gain standing under an
interest-injury analysis. As the trial court noted, because
Kleven is no longer employed by YKSD, he is no longer subject to
the contested grievance procedures, nor is he threatened by the
alleged safety violations.14 Compare Rutter v. State, 668 P.2d
1343, 1346 (Alaska 1983) (holding that commercial fisherman had
standing to challenge state's fishing permit policy because his
ability to fish would be directly impacted by the number of
permits granted); with Bowers Office Prod. v. University of
Alaska, 755 P.2d 1095, 1098 (Alaska 1988) (holding that bidder
did not have standing to challenge university bid review
practices where bidder had abandoned claim for damages arising
out of these practices and was currently only seeking declaratory
Taxpayer-citizen status is a sufficient basis to
challenge allegedly illegal governmental conduct when the issues
raised are of significant public concern and when the taxpayer-
plaintiff is a suitable advocate of the issues involved in the
lawsuit. See Trustees for Alaska, 736 P.2d at 329; State v.
Lewis, 559 P.2d 630, 635 (Alaska 1977), cert. denied, 432 U.S.
901 (1977). In Trustees for Alaska, we noted that standing may
properly be denied to a taxpayer-plaintiff where "there is a
plaintiff more directly affected by the challenged conduct in
question who has or is likely to bring suit." Trustees for
Alaska, 736 P.2d at 329. Because YKSD's remaining employees are
certainly in better position to raise the grievances Kleven cites
and because we have no reason to believe that current YKSD
employees would be indisposed to press legitimate grievances, we
agree with the trial court that Kleven has failed to establish
citizen-taxpayer standing. Accordingly, we hold that Kleven's
second lawsuit was properly dismissed for lack of standing.
We also uphold the trial court's partial attorneys' fee
award. See Alaska Civil Rule 82. The court awarded YKSD
$2,700.00 in cost and fees which represented only about fifty
percent of YKSD's total fees for the second lawsuit. We have
previously upheld awards representing well over fifty percent of
a prevailing party's actual fees and therefore find no abuse of
discretion in this case. See, e.g., Steenmeyer Corp. v.
Mortenson-Neal, 731 P.2d 1221, 1226-27 (Alaska 1987) (holding
that a Civil Rule 82 award of 75 percent of actual fees was not
The judgment in the first lawsuit is REVERSED and the
case is REMANDED for further proceedings consistent with this
opinion. The judgment in the second lawsuit is AFFIRMED.
1. Kleven argued that because YKSD sent his evaluation
after March 16th, the district was statutorily precluded from
reducing his salary or job status. See Redman v. Department of
Education, 519 P.2d 760 (Alaska 1974). Alaska Statutes
14.20.140, 14.20.145 and 14.20.158 provide in part:
Sec. 14.20.140 Notification of
nonretention. (a) If a teacher who has
acquired tenure rights is not to be retained
for the following school year, the employer
shall notify the teacher of the nonretention
by writing, delivered before March 16. . . .
Sec. 14.20.145 Automatic re-employment.
If notification of nonretention is not given
according to AS 14.20.140, a teacher is
entitled to be reemployed in the same
district for the following school year on the
contract terms the teacher and the employer
may agree upon, or if no terms are agreed
upon, the provisions of the previous contract
are continued for the following school year,
subject to AS 14.20.158.
Sec. 14.20.158 Continued Contract
Provisions. Continuation of the provisions of
a teacher's contract under AS 14.20.145 or
14.20.155 does not (1) affect the alteration
of the teacher's salary in accordance with
the salary schedule prescribed by state law .
. . . (2) limit the right of the employer to
assign the teacher to any teaching,
administrative, or counseling position for
which the teacher is qualified; or (3) limit
the right of the employer to assign the
teacher, as is reasonably necessary, to any
school in the district.
2. Around this same time, Superintendent Lau offered
Kleven a contract for the position of Coordinator of Maintenance
and Capital Projects which carried a salary of almost $62,000,
about $10,000 less than Kleven had made as a Director. While
reserving his rights, Kleven signed the contract in June 1990.
3. Neither Kleven nor his attorney attended the May 8th
school board meeting. At the meeting, Lau recommended that
Kleven be reassigned to the coordinator position and that another
YKSD employee be transferred to fill Kleven's former position.
The Board approved Lau's recommendations. The Board also met in
Executive Session to discuss the financial impact of Kleven's
lawsuit on the district but took no record action on the merits
of Kleven's grievances.
4. One odd feature of the amended complaint is that Kleven
continued to request an injunction requiring YKSD to tender him a
contract even though he had already contractually bound himself
to work for the Kake School District. However, the amended
complaint also prayed for "damages in an amount to be proved at
trial for any and all loss of salary, benefits or status."
5. About half of Kleven's fifty grievances relate to
YKSD's failure to provide a grievance procedure ending in binding
arbitration; twelve grievances concern the superintendent's
alleged failure to comply with safety regulations at the various
school facilities and requests that fines be imposed and that an
injunction issue requiring immediate compliance; a few grievances
concern denied leave requests and request immediate leave
approval as a remedy; and several grievances request public
apologies as a remedy for the superintendent's alleged improper
behavior toward Kleven during the first lawsuit.
Two grievances involve incidents where Kleven was
allegedly improperly denied compensation for work he had
completed. These claims were clearly not mooted by Kleven's
subsequent resignation. However, Kleven assigned his wage claims
to the Alaska Department of Labor (DOL), and the DOL actually
collected on these claims for Kleven.
6. We independently review summary judgment rulings to
determine whether any genuine issues of material fact exist and
whether the moving party is entitled to judgment as a matter of
law. Drake v. Hosley, 713 P.2d 1203, 1205 (Alaska 1986).
7. The difference in the two motions is that the first
motion anticipated injunctive relief but the second only sought a
ruling that Kleven was entitled to the benefits of a renewed
contract. The second motion could be seen as a attempt to
establish liability for breach of contract, thus, setting up a
damages claim for the difference between what YKSD paid Kleven as
a coordinator during the last months of 1990 and what he could
have made as a director under his previous contract. Under this
view of the case, Kleven's employment with Kake should be
considered mitigating employment and Kleven's damage claim could
be extended through the remaining school year by subtracting
Kleven salary as Kake superintendent from the salary he could
have made as a YKSD director.
8. Of course, Kleven could have breached his contract with
Kake or otherwise have freed himself from his contractual obliga-
tions to his new employer in order to accept a new contract with
YKSD. "A case is moot when a judgment, if rendered, would have
no practical legal effect upon the existing controversy." Van
Schaack Holdings, Ltd. v. Fulenwider, 798 P.2d 424, 426 (Colo.
1990). Thus, strictly speaking, the mere fact that Kleven had
signed a contract with another school district did not render the
summary judgment motion moot even under the superior court's view
of the case.
9. This harm may have continued throughout the 1990-91
school year if the Kake position paid less than Kleven previously
had made as a director in 1989-90.
10. "It is within the superior court's discretion whether
to require the exhaustion of administrative or organizational
remedies before reviewing an issue or claim." Eufemio v. Kodiak
Island Hosp., 837 P.2d 95, 98 (Alaska 1992).
11. This statement, at least, is not supported by the
record on appeal. Kleven's April 12th letter should be considered
a request for "clarification" of the grievance procedures
available. Considering that, under Policy 4.2, the next step
would have been presentation of Kleven's grievances to a
Grievance Committee, YKSD's response instructing Kleven "to raise
a complaint to the School Board pursuant to board policy"simply
added to the uncertainty over the proper grievance process.
Kleven also maintains on appeal that he was frustrated in his
attempt to form a grievance committee although, as YKSD notes,
this assertion is unsupported by the record.
12. YKSD maintains on appeal that Kleven's failure to
present his grievances at the school board meeting was
particularly harmful because the district had to take prompt
action to replace Kleven because the time frame in which a school
district must make hiring commitments is short.
13. The doctrines of standing and mootness are matters of
judicial policy, and as such, are questions of law which we will
resolve using our independent judgment. Bowers Office Prod. v.
University of Alaska, 755 P.2d 1095, 1096 (Alaska 1988).
14. If Kleven had articulated a claim for constructive
discharge in this second lawsuit, he would have had a sufficient
interest in these issues. See Beard, 796 P.2d at 1349.