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Alaskans For a Common Language Inc. v. Kritz (6/16/00) sp-5284
Alaskans For a Common Language Inc. v. Kritz (6/16/00) sp-5284
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
ALASKANS FOR A COMMON LANGUAGE, )
INC., and U.S. ENGLISH, INC., )
) Supreme Court No. S-9167
Appellants, )
) Superior Court Nos.
v. ) 3DI-99-12 CI,
) 3AN-99-4488 CI
MOSES KRITZ, individually and as )
Mayor, City of Togiak; STANLEY )
ACTIVE, SR., individually and as ) O P I N I O N
City Councilman, City of Togiak; )
MARIE PAUL, City Administrator, ) [No. 5284 - June l6, 2000]
City of Togiak; WILLIE T. ECHUCK, )
JR., Special Assistant, City of )
Togiak; FRANK LOGUSAK; HENRY )
ALAKAYAK; ANECIA LOMAK; NANCY )
SHARP; VERONICA MICHAEL; WALTER )
TIRCHICK; BENJAMIN NAGEAK; MOLLY )
PEDERSON; FANNY AKPIK; JANA )
HARCHAREK; MICHAEL AAMODT; JIM )
VORDERSTRASSE; SONIA COLLINS; )
MANUEL MACEDO; JULIA SAMANIEGO; )
JAMES GILMAN; ELIZABETH BEAVER, )
through her father and next friend,)
Leo Beaver; LEO BEAVER, individ- )
ually and as father and next friend)
of Elizabeth Beaver; RUTHIE BEAVER;)
MINNIE MARK; SOPHIE EVAN; GRACE L. )
HILL; ANNIE CLEVELAND; ELIZABETH )
PLEASANT; SUSIE FOSTER; WASSILIE )
BAVILLA; PAUL BEEBE; JOHN O. MARK; )
and ERNESTINA LIRANZO, )
)
Appellees. )
___________________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Dillingham,
Fred Torrisi, Judge.
Appearances: Douglas J. Serdahely and Kevin
D. Callahan, Patton Boggs L.L.P., Anchorage, and Kenneth P.
Jacobus, Law Offices of Kenneth P. Jacobus, Anchorage, for
Appellants. Douglas Pope and Thomas A. Ballantine, Pope & Katcher,
Anchorage, for Appellees Moses Kritz, Stanley Active, Sr., Marie
Paul, Willie T. Echuck, Jr., and Frank Logusak. Heather R. Kendall
Miller and Eric D. Johnson, Native American Rights Fund, Anchorage,
William Caldwell, Alaska Civil Liberties Union, Fairbanks, Les
Gara, Friedman, Rubin & White, Anchorage, Todd Sherwood, North
Slope Borough, Barrow, and Lloyd B. Miller, Sonosky, Chambers,
Sachse & Miller, Anchorage, for Appellees Henry Alakayak, Anecia
Lomack, Nancy Sharp, Veronica Michael, Walter Tirchick, Benjamin
Nageak, Molly Pederson, Fanny Akpik, Jana Harcharek, Michael
Aamodt, Jim Vorderstrasse, Sonia Collins, Manual Macedo, Julia
Samaniego, James Gilman, Elizabeth Beaver, Leo Beaver, Ruthie
Beaver, Minnie Mark, Sophie Evan, Grace L. Hill, Annie Cleveland,
Elizabeth Pleasant, Susie Foster, Wassilie Bavilla, Paul Beebe,
John O. Mark, and Ernestina Liranzo.
Before: Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
Two incorporated organizations, Alaskans for a Common
Language and U.S. English, appeal the superior court's order
denying their motions to intervene in a lawsuit that will determine
the constitutionality of a successful ballot initiative requiring
the government to use English. Because the incorporators of
Alaskans for a Common Language were also the sponsors on the
initiative committee, and because the executive branch publicly
opposed the initiative before the election, Alaskans for a Common
Language was entitled to intervene under Alaska Civil Rule 24(a).
We therefore reverse as to that organization and remand. U.S.
English fails to show sufficient interest in the action because it
does not have the same connections with the initiative's sponsors.
We therefore affirm as to that organization.
II. FACTS AND PROCEEDINGS
Three Alaskan voters, Susan Fischetti, Ken Jacobus, and
State Representative Pete Kott, [Fn. 1] acting as sponsors and
members of an initiative committee, applied to have an initiative
certified for the ballot in August 1997. [Fn. 2] The initiative
proposed that English be used by all public agencies in all
government functions and actions, and in the preparation of all
official public documents and records.
In September 1997, at the request of the lieutenant
governor, the State of Alaska Attorney General's Office reviewed
the initiative application and wrote a memorandum to the lieutenant
governor. The reviewing assistant attorney general stated that she
was aware of a constitutional challenge to a similar initiative in
Arizona. She noted that the United States Supreme Court or the
Alaska Supreme Court could find that the proposed Alaska initiative
was unconstitutional, but she concluded that the outcome was not so
certain that certification should be denied. [Fn. 3] The assistant
attorney general therefore recommended that the lieutenant governor
certify the initiative application. The lieutenant governor
certified the initiative application for the circulation of
petitions.
Led by Jacobus, the sponsors circulated petitions and
gathered the requisite number of signatures. On February 9, 1998,
after verifying the signatures, the lieutenant governor certified
the initiative petition and directed that a ballot title and
proposition be placed on the ballot of the next statewide election.
She then began to prepare the ballot title and proposition.
That same day, February 9, 1998, Jacobus, Fischetti, and
one other Alaskan, Edgar Paul Boyko, filed to incorporate a
nonprofit corporation, Alaskans for a Common Language, Inc. The
stated purposes of the organization included promoting the use of
English and engaging in campaign activities relating to the
adoption of English as the official language. Jacobus acted as an
incorporator, registered agent, director, and attorney. Fischetti
acted as an incorporator, director, and press contact.
In July 1998 the lieutenant governor prepared the ballot
title and proposition according to AS 15.45.180 and sent it to
Jacobus for review. Jacobus objected to the proposed ballot
language because it did not refer to the Native American Languages
Act (NALA). [Fn. 4] The lieutenant governor rejected Jacobus's
proposed language and notified him that under AS 15.45.240 any
person aggrieved by the determination could bring a superior court
action for review of the ballot language within thirty days.
Alaskans for a Common Language sued the lieutenant
governor to compel her to include a reference to NALA in the ballot
language. Specifically, it proposed that the ballot language state
that government entities "may use non-English languages . . . [to]
comply with federal law, including the Native American Languages
Act." The Attorney General's Office represented the lieutenant
governor and argued that a reference to NALA would reduce the
readability of the summary and make the summary too long, when it
was not clear that NALA protected the use of Native Alaskan
languages from the initiative's requirements that government
entities use English. The lieutenant governor prevailed and the
ballot proposition was printed without referring to NALA.
Alaskans for a Common Language financed the campaign
supporting passage of the initiative. It received the majority of
its funding from U.S. English, Inc., a national, nonprofit
corporation based in Washington, D.C. U.S. English is dedicated to
promoting English as a common language of the United States.
During the campaign before the 1998 general election that
included the initiative, Alaska Governor Tony Knowles publicly
opposed the initiative, commenting that it was "unnecessary, unfair
and unfortunate."
Alaskan voters passed the initiative. It was to become
effective March 4, 1999. [Fn. 5] Before the effective date, two
groups of plaintiffs challenged the initiative's constitutionality
in separate court actions. [Fn. 6] The Attorney General's Office
defended the initiative's constitutionality in both cases. After
the superior court consolidated the two cases, Alaskans for a
Common Language and U.S. English moved to intervene under Alaska
Civil Rules 24(a) and (b). The two groups of plaintiffs opposed
the motion to intervene but the state did not. The superior court
denied the organizations' motion to intervene as of right under
Civil Rule 24(a), holding that their interests were adequately
represented by the state, and denied their motion for permissive
intervention under Civil Rule 24(b), holding that they could more
effectively and expeditiously participate as amici curiae.
Alaskans for a Common Language and U.S. English appeal.
III. DISCUSSION
A. The Denial of Intervention Was a Final Appealable Order.
The denial of an intervention motion is a final
appealable order for the purposes of appellate jurisdiction. [Fn.
7] But the Kritz appellees argue that the superior court's order
was not final under Alaska Appellate Rule 202(a) because the
superior court reserved the power to modify its decision in further
proceedings. [Fn. 8]
When determining whether an order is final we focus on
practicality: the judgment must dispose of the entire case, end the
litigation, and leave nothing for the court to do. [Fn. 9] We
"look to the substance and effect, rather than form, of the
rendering court's judgment, and focus primarily on the operational
or 'decretal' language therein." [Fn. 10] And when an order is
ambiguous we look to its "substantial effect." [Fn. 11] A party's
ability to seek post-judgment review may determine whether an order
on a motion to intervene is appealable. [Fn. 12]
The superior court's order here prevents both movants
from participating as parties. They cannot seek post-judgment
review of any of the superior court's findings or conclusions.
They cannot engage in full discovery or file their own motions.
Even though the superior court's order states that the
organizations "may seek leave to participate in other ways, upon a
showing of necessity," the substantial effect of that order limits
their participation to that of amici curiae. This requires them to
seek permission to act and prevents them from enjoying a party's
full slate of procedural rights. And even though the order was
without prejudice, movants may only refile their intervention
motion if circumstances change. By then movants might already be
prejudiced by their inability to participate in discovery or
pretrial matters. We conclude that the superior court's order is
final and appealable and therefore that we have jurisdiction to
review the order.
B. Standing
Normally we review standing as a threshold issue. [Fn.
13] However, the parties have raised standing as an issue within
the context of whether either Alaskans for a Common Language or
U.S. English has a sufficient interest in the matter to intervene
under Civil Rule 24(a). We also therefore address the issue of
standing when we discuss intervention as of right.
C. Intervention as of Right under Alaska Civil Rule 24(a)
Alaskans for a Common Language and U.S. English moved to
intervene as of right under Civil Rule 24(a). [Fn. 14] We impose
a four-part test to determine whether a movant is entitled to
intervene as a matter of right: (1) the motion must be timely; (2)
the applicant must show an interest in the subject matter of the
action; (3) the applicant must show that this interest may be
impaired as a consequence of the action; and (4) the applicant must
show that the interest is not adequately represented by an existing
party. [Fn. 15] We favor allowing access to courts and will
liberally construe Alaska Civil Rule 24(a). [Fn. 16]
We review a denial of intervention as a matter of right
for abuse of discretion if timeliness is at issue. [Fn. 17] We
apply our independent judgment if timeliness is not at issue and if
the facts relevant to intervention are not disputed because then
only questions of law are posed. [Fn. 18] Here no issue of
timeliness has been raised and no relevant facts are disputed. We
therefore apply our independent judgment.
1. Alaskans for a Common Language
Alaskans for a Common Language claims an interest in the
litigation because its members have invested a large amount of time
and effort in protecting and encouraging the use of English by
government in Alaska. It claims that "its members need to protect
their initiative, the will of the Alaskan voters, and the purpose
of the initiative." It particularly asserts that it represents
organization directors and officers Fischetti and Jacobus, and that
they have an interest because as initiative committee members they
have a duty to represent the initiative's signers and subscribers.
An intervention movant's interest must be "direct,
substantial, and significantly protectable" to satisfy Rule 24(a).
[Fn. 19] Generally when the government exercises its sovereign
power to enforce and defend duly enacted laws, no other entity can
have an interest sufficient to satisfy Civil Rule 24(a). [Fn. 20]
But when the people of a state have reserved the power of direct
legislation, those who take responsibility for that direct
legislation may have a sufficient interest. [Fn. 21]
In McCormick v. Smith [Fn. 22] we determined that the
interest of a voter and a sponsor of a recall petition in pursuing
the recall of an elected official was "of constitutional dimension"
and that those individuals, as initiators of the recall, had a
heightened interest in a lawsuit which would determine the fate of
the recall attempt. [Fn. 23] Similarly, Fischetti and Jacobus, as
initiative committee members, have a constitutionally based,
heightened interest in a lawsuit that will determine whether their
successful initiative will be enforced. Fischetti and Jacobus, as
initiative committee members, are also obliged by law to represent
the sponsors in all matters concerning the initiative. [Fn. 24]
This heightened, constitutionally based, and statutorily bolstered
interest is a "direct, substantial and significantly protectable"
interest as required by Civil Rule 24(a).
Moreover, the interests of Fischetti and Jacobus, as
initiative committee members, may be impaired by this lawsuit. A
preliminary injunction has already been granted by the superior
court enjoining the initiative's enforcement. The Kritz and
Alakayak plaintiffs seek a declaration that the initiative is void
because it violates constitutional protections. [Fn. 25] If the
initiative were declared unconstitutional, its enactment would
obviously be vitiated and the efforts of Jacobus and Fischetti, as
initiative committee members, to enact a law requiring the use of
English in government would be frustrated.
We recognize a presumption of adequate representation
when government entities are parties to a lawsuit because those
entities are charged by law with representing the interests of the
people. [Fn. 26] That presumption may be rebutted and inadequate
representation may be proved by a showing of collusion, adversity
of interest, possible nonfeasance, or incompetence. [Fn. 27] We
held in McCormick that when a city accepted defeat in the trial
court and failed to appeal an order enjoining it from pursuing a
recall election, the city had relinquished its responsibility to
defend the fundamental right to vote. [Fn. 28] That relinquishment
constituted "possible nonfeasance." [Fn. 29]
Here, the governor has a duty to defend a law that was
enacted through the people's initiative powers. [Fn. 30] That duty
is executed by the attorney general. [Fn. 31]
Nonetheless, two circumstances could raise questions in
the mind of the public about whether the executive branch is
committed to defending the constitutionality of the initiative with
conviction and vigor. First, despite its recommendation that the
lieutenant governor certify the initiative application, the
Attorney General's Office questioned the constitutionality of the
initiative. In the 1997 ballot litigation, the Attorney General's
Office asserted that it was unclear whether and to what extent the
Native American Languages Act protected the use of Native languages
in Alaska from the requirements proposed in the initiative. It
specifically questioned whether NALA protected a non-Native state
employee's use of an Alaskan Native language. The Kritz
plaintiffs, who now argue that the state's representation is
adequate, argued in the 1997 ballot litigation that the Attorney
General's Office has taken inconsistent positions on the effect of
NALA on the initiative. Because the movants assert on appeal that
one of the goals of the initiative is to protect the use of Native
languages, the state's previous position on the reach of NALA is
potentially relevant. The initiative's supporters could question
whether the state could argue convincingly or with conviction that
NALA protects the use of Native languages when it previously
questioned NALA's reach.
Second, the governor personally opposed the measure
publicly and unequivocally by stating that it was "unnecessary,
unfair and unfortunate." The initiative's supporters could
interpret that statement as an indication that the chief executive
and the rest of the executive branch would not unequivocally defend
the constitutionality of the initiative.
Based on the presumption of adequate government
representation, we presume that the Attorney General's Office would
not fail to defend the constitutionality of the initiative
energetically and capably. Based on that same presumption, we also
presume that the governor would not interfere. But Jacobus and
Fischetti, as initiative committee members and sponsors, used the
process of direct legislation to enact a law that the executive
branch questioned and opposed. They cannot be faulted for wanting
to guarantee that the initiative is defended zealously or for
trying to ensure that the credibility of institutional arguments in
favor of the initiative is not diminished by the previous comments
from the executive branch. To them, and to the public in sympathy
with the initiative, the governor's opposition and the Attorney
General's Office's questions about the reach of NALA during the
campaign, could create an appearance of adversity. Every strategic
decision made by the Attorney General's Office in defending the
legislation might be publicly questioned and second-guessed by the
initiative's sympathizers. That this suspicion may be unfounded
does not make it less inevitable.
The Attorney General's Office does not oppose
intervention here. It objected to Alaskans for a Common Language's
assertions that the ballot language was misleading, that the state
would use the litigation for political purposes, and that its
position on the meaning of the initiative was extreme. But the
Attorney General's Office recognized that Alaskans for a Common
Language had an interest, that it was uniquely qualified to raise
arguments about the intent of the initiative, and that it might
offer a different perspective that should be heard by the court.
Because the state does not oppose intervention, and
because there might be a misperception by the initiative's
supporters that the interests of Fischetti and Jacobus were not
being defended vigorously by the executive branch, we conclude that
a possible adversity of interest has been demonstrated. [Fn. 32]
In McCormick we determined that "possible nonfeasance" was
sufficient to show inadequacy. [Fn. 33] Here, because of the
nature of direct legislation through the initiative process, the
possible appearance of adversity of interest is sufficient to
overcome the presumption of adequate representation. Indeed, we
believe that a sponsor's direct interest in legislation enacted
through the initiative process and the concomitant need to avoid
the appearance of adversity will ordinarily preclude courts from
denying intervention as of right to a sponsoring group.
We recognize that the Ninth Circuit has adopted a
"virtual per se" rule allowing initiative sponsors to intervene in
litigation challenging laws enacted by the initiative. [Fn. 34]
But we believe that Alaska courts should retain discretion to deny
intervention in exceptional cases, because AS 15.45.060 places no
limit on the number of initiative sponsors and therefore
potentially opens the door to an unlimited number of motions for
intervention. As an alternative to limiting intervention in those
cases, courts may instead choose to reduce duplication by requiring
those sponsors with substantially similar interests to consolidate
their briefing and to participate through lead counsel.
As initiative sponsors, Fischetti and Jacobus have shown
an interest that may be impaired and that may not be adequately
represented by the state. Therefore they would have been entitled
to intervene as of right under Civil Rule 24(a) if either had moved
to intervene as an individual.
The remaining question is whether Alaskans for a Common
Language may represent Fischetti and Jacobus in this litigation.
The Alakayak plaintiffs assert that Alaskans for a Common Language
lacks a sufficient interest to have standing in this litigation.
In the same vein, the Kritz plaintiffs assert that Alaskans for a
Common Language lacks standing to assert the interests of Fischetti
and Jacobus because the interest injured under Civil Rule 24(a)
must be that of the intervenor. [Fn. 35] But Alaskans for a Common
Language argues that it may represent the interests of its members
Fischetti and Jacobus because it has associational standing.
Associations have previously represented the interests of
their members in Alaska courts in lawsuits regarding initiative and
recall attempts, although we have not previously specified criteria
for associational standing. [Fn. 36] The United States Supreme
Court has held that an association has standing to bring suit on
behalf of its members when: (1) its members would otherwise have
standing to sue in their own right; (2) the interests it seeks to
protect are germane to the organization's purpose; and (3) neither
the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit. [Fn. 37] We
adopt this test.
First, the movants must show that their members have
either citizen-taxpayer or interest-injury standing. [Fn. 38]
Under the interest-injury approach a party must have an interest
which is adversely affected by the complained-of conduct. [Fn. 39]
The degree of injury need not be great; an "identifiable trifle" is
said to suffice to fight out a question of principle. [Fn. 40] The
interest may be economic, or it may be intangible, such as an
aesthetic or environmental interest. [Fn. 41] This threshold is
lower than the interest needed to satisfy Rule 24(a) where the
interest must be "direct, substantial, and significantly
protectable." [Fn. 42] Because we held above that Fischetti and
Jacobus have a sufficient interest to satisfy Alaska Civil Rule
24(a), they necessarily also satisfy that element of the
associational standing requirement.
Second, Alaskans for a Common Language seeks to represent
the interests of initiative sponsors and signers Jacobus and
Fischetti, who worked to enact the initiative as law. Alaskans for
a Common Language was incorporated by Fischetti and Jacobus on the
same day the initiative application was certified for the petition
process. And the articles of incorporation of Alaskans for a
Common Language state that its purpose is to promote the use of
English as the official language of the State of Alaska. The
enactment of the initiative is not only "germane" to Alaskans for
a Common Language's organizational purposes, it is its primary
organizational purpose.
Finally, the constitutionality of the initiative is a
pure question of law which will not require direct testimony or
other participation by Fischetti or Jacobus. Therefore, Alaskans
for a Common Language meets the requirements for associational
standing and may represent the interests of Fischetti and Jacobus
in this litigation. [Fn. 43]
2. U.S. English
U.S. English asserts an interest in promoting "the use of
English on a national basis." Unlike Alaskans for a Common
Language, which has established that it has direct ties with
initiative committee members Fischetti and Jacobus, the record does
not show that U.S. English has a direct interest in the current
litigation that would warrant intervention as a matter of right.
The record fails to show, and U.S. English has not asserted, that
its directors, officers, or incorporators were sponsors of the
initiative in Alaska or were members of the initiative committee.
Alaskans for a Common Language established that it has a "direct"
interest in the litigation before the superior court. But U.S.
English has not established that its interest is any greater than
a generalized interest of a political nature. [Fn. 44] Although
U.S. English's Alaskan members may hope to defend the Alaska
initiative to further U.S. English's national interest, we do not
consider that interest to be sufficient. Also, unlike Alaskans for
a Common Language, U.S. English did not previously undertake civil
litigation to advance its interest in the initiative.
D. The Superior Court Did Not Abuse Its Discretion in
Denying Permissive Intervention to U.S. English.
Intervention may be permitted under Alaska Civil Rule
24(b) upon timely application when the applicant's claim or defense
and the main action have a common question of law or fact; the
court must also determine whether intervention would impair the
rights of the original parties by causing undue delay or prejudice.
[Fn. 45] We recognize that "additional parties are always the
source of additional questions, briefs, objections, arguments and
motions, [and] where no new issues are presented, the most
effective and expeditious way to participate is by a brief amicus
curiae and not by intervention." [Fn. 46] Because the superior
court concluded that U.S. English failed to raise any new issues,
we hold that the superior court did not abuse its discretion when
it denied U.S. English permissive intervention but allowed it to
participate as an amicus curiae.
IV. CONCLUSION
For these reasons we REVERSE the denial of intervention
to Alaskans for a Common Language, and REMAND with instructions to
grant its motion to intervene under Alaska Civil Rule 24(a). We
AFFIRM the denial of intervention under Alaska Civil Rule 24(a) and
(b) to U.S. English.
FOOTNOTES
Footnote 1:
Representative Kott is not a party to this litigation and has
not asserted any interest in it.
Footnote 2:
An application for an initiative must be signed by 100 Alaskan
voters as "sponsors." See Alaska Const. art. XI, sec. 2; AS
15.45.030. The application must also include three sponsors
designated as an "initiative committee" who represent the sponsors
and subscribers in all matters relating to the initiative. See AS
15.45.030. After the lieutenant governor certifies the
application, the sponsors circulate petitions for signatures. See
AS 15.45.110. If they collect enough signatures the proposition is
placed on the ballot. See AS 15.45.140-.150.
Footnote 3:
The assistant attorney general determined that the initiative
was not plainly inconsistent with a provision of the Alaska
constitution. See Whitson v. Anchorage, 608 P.2d 759, 762 (Alaska
1980) (permitting judicial review of proposed initiative to ensure
citizens' efforts are not made in vain).
Footnote 4:
25 U.S.C. sec.sec. 2901-2906 (1994 & Supp. II 1996).
Footnote 5:
The initiative appeared on the ballot as Ballot Measure 6,
"Adopting English as the official language of Alaska." Before its
effective date the measure was codified as AS 44.12.300-.390.
Although it has been codified, its operation was enjoined before it
would have become effective. We therefore refer to it here as "the
initiative."
Footnote 6:
One set of plaintiffs originally sued in Anchorage and are
referred to collectively as the "Alakayak plaintiffs." The other
set of plaintiffs originally sued in Dillingham and are referred to
collectively as the "Kritz plaintiffs."
Footnote 7:
See Hertz v. Cleary, 835 P.2d 438, 440-41 n.2 (Alaska 1992)
(citing In re Benny, 791 F.2d 712, 720 (9th Cir. 1986);
Commonwealth of Pennsylvania v. Rizzo, 530 F.2d 501, 504 (3d Cir.
1976)); see also Alaska R. App. P. 202(a). This common-sense
approach allows review of an order when appellate jurisdiction
would otherwise be determined by examining the very issues raised
in the merits of the appeal. See Hertz, 835 P.2d at 440-41 n.2;
see also 7C Charles Alan Wright et al., Federal Practice and
Procedure sec. 1923, at 508-09 (2d ed. 1986).
Footnote 8:
The superior court's order stated:
IT IS HEREBY ORDERED that the motion of
Alaskans for a Common Language, Inc., and U.S. English, Inc., for
leave to intervene as parties defendant be, and it hereby is,
denied.
IT IS FURTHER ORDERED that movants may
participate as amici curiae by filing an amicus brief on the merits
at the time the State defendants file their opposition to
plaintiffs' motions for summary judgment. The parties are to serve
counsel for amici with all motions and memoranda. Movants may also
present oral argument in support of any amicus brief they have
filed.
The superior court also stated:
Amici may participate in oral argument by
leave of court. That leave is hereby granted. In addition, given
the public nature of this action, amici may attend any depositions
that are scheduled and may seek leave to participate in this action
in other ways, upon a showing of necessity, suitably expedited so
as not to delay the proceedings.
Footnote 9:
See Greater Anchorage Area Borough v. City of Anchorage, 504
P.2d 1027, 1030 (Alaska 1972), overruled on other grounds by City
of Juneau v. Thibodeau, 595 P.2d 626, 629 (Alaska 1979).
Footnote 10:
Greater Anchorage Area Borough, 504 P.2d at 1030-31 (footnote
omitted).
Footnote 11:
Id. at 1032 ("We conclude that the substantial effect of the
operational portion of the superior court's referral order was to
completely dispose of the case pending before it.").
Footnote 12:
Cf. Stringfellow v. Concerned Neighbors in Action, 480 U.S.
370, 378 (1987) (grant of permissive intervention subject to
conditions was not appealable final order because no limitations
interfered with intervenor's right to raise claims on post-judgment
appeal).
Footnote 13:
See, e.g., Trustees for Alaska v. State, 736 P.2d 324, 327
(Alaska 1987).
Footnote 14:
Alaska Civil Rule 24(a) states:
Intervention as of Right. Upon timely
application anyone shall be permitted to intervene in an action
when the applicant claims an interest relating to the property or
transaction which is the subject of the action and the applicant is
so situated that the disposition of the action may as a practical
matter impair or impede the applicant's ability to protect that
interest, unless the applicant's interest is adequately represented
by existing parties.
Footnote 15:
See State v. Weidner, 684 P.2d 103, 113 (Alaska 1984).
Footnote 16:
See 7C Charles Alan Wright et al., Federal Practice and
Procedure sec. 1904, at 238 (1986) (discussing boundaries of
liberal
construction); cf. Trustees for Alaska, 736 P.2d at 327 (stating
that we broadly interpret standing requirements because we favor
increased accessibility to judicial fora).
Footnote 17:
See Laborer's Local No. 942 v. Lampkin, 956 P.2d 422, 437
n.24, 437-39 (Alaska 1998) (reviewing for abuse of discretion where
timeliness was at issue); Mundt v. Northwest Explorations, Inc.,
947 P.2d 827, 830 (Alaska 1997) (noting that federal courts have
held that determination of timeliness is within discretion of trial
judge); Hertz, 835 P.2d at 441 (holding that superior court did not
abuse discretion in holding that motion was untimely).
Footnote 18:
See McCormick v. Smith, 793 P.2d 1042, 1044 n.3 (Alaska 1990).
Footnote 19:
See Weidner, 684 P.2d at 113.
Footnote 20:
See Keith v. Daley, 764 F.2d 1265, 1269-70 (9th Cir. 1993)
(holding that lobby organization in Illinois legislature did not
have protectable interest in lawsuit regarding constitutionality
of law regulating abortion because only entities with sufficient
interest were governmental bodies required to defend and enforce
law of state); United States v. 36.96 Acres of Land, 754 F.2d 855,
858-60 (7th Cir. 1985) (holding that lobby organization attempting
to foster national legislation did not have right to intervene;
only government had protectable interest in condemnation action
between sovereign and private party); Resort Timeshare Resales,
Inc. v. Stuart, 764 F. Supp. 1495, 1499 (S.D. Fla. 1991) (holding
that lobbyist was not entitled to intervene when asserted interest
in law was too nebulous to create "real party in interest" in
litigation challenging constitutionality of state statute requiring
timeshare sellers to obtain real estate licenses).
Footnote 21:
See Bates v. Jones, 904 F. Supp. 1080, 1086 (N.D. Cal. 1995)
("The individualized interest of official proponents of ballot
initiatives in defending the validity of the enactment they
sponsored is sufficient to support intervention as of right.")
(citing Yniguez v. Arizona, 939 F.2d 727 (9th Cir. 1991) vacated
for mootness in Arizonans for Official English v. Arizona, 520 U.S.
43 (1997)); see also Washington State Bldg. & Constr. Trades
Council v. Spellman, 684 F.2d 627, 629-30 (9th Cir. 1982).
Footnote 22:
793 P.2d 1042 (Alaska 1990).
Footnote 23:
See id. at 1044.
Footnote 24:
AS 15.45.030 provides:
Form of application. The application shall
include (1) the proposed bill to be initiated, (2) a statement that
the sponsors are qualified voters who signed the application with
the proposed bill attached, (3) the designation of an initiative
committee of three sponsors who shall represent all sponsors and
subscribers in matters relating to the initiative, and (4) the
signatures and addresses of not less than 100 qualified voters.
(Emphasis added.)
Footnote 25:
The Kritz plaintiffs allege that the initiative violates both
the United States and the Alaska constitutions. The Alakayak
plaintiffs allege only that it violates the Alaska constitution.
Footnote 26:
See McCormick, 793 P.2d at 1044.
Footnote 27:
See id. at 1045 (citing Weidner, 684 P.2d at 113).
Footnote 28:
See id. at 1043, 1045.
Footnote 29:
See id. at 1045.
Footnote 30:
See Alaska Const. art. III, sec. 16 ("The governor shall be
responsible for the faithful execution of the laws.").
Footnote 31:
See AS 44.23.020.
Footnote 32:
See McCormick, 793 P.2d at 1045.
Footnote 33:
See id.
Footnote 34:
Yniguez, 939 F.2d at 733 ("[I]t is worth noting that there is
a virtual per se rule that the sponsors of a ballot initiative have
a sufficient interest in the subject matter of litigation
concerning that initiative to intervene pursuant to Fed. R. Civ. P.
24(a)."); see also Bates, 904 F. Supp. at 1086.
Footnote 35:
The Kritz plaintiffs also assert that U.S. English lacks
standing. Because we hold that U.S. English lacks a sufficient
interest to satisfy Alaska Civil Rule 24(a) and that it was not an
abuse of discretion to deny permissive intervention to U.S.
English, we need not reach this question.
Footnote 36:
See, e.g., Brooks v. Wright, 971 P.2d 1025, 1026 (Alaska 1999)
(citizens and community organizations brought suit to remove
initiative from ballot); von Stauffenberg v. Committee for Honest
& Ethical Sch. Bd., 903 P.2d 1055, 1057 (Alaska 1995)
(organizations comprised of concerned citizens and voters brought
suit to have recall petition declared valid and to order clerk to
proceed with election); Municipality of Anchorage v. Citizens for
Representative Governance, 880 P.2d 1058, 1061 (Alaska 1994)
(organization opposing recall sued to block recall election and
organization supporting recall intervened); Citizens Coalition for
Tort Reform, Inc. v. McAlpine, 810 P.2d 162, 163-64 (Alaska 1991)
(organization sued to force certification of initiative supporting
tort reform); Thomas v. Bailey, 595 P.2d 1, 2 n.2 (Alaska 1979)
(organization and individual sued to determine constitutionality of
initiative).
Footnote 37:
See Hunt v. Washington State Apple Advertising Comm'n, 432
U.S. 333, 343 (1977).
Footnote 38:
See Trustees for Alaska, 736 P.2d at 327.
Footnote 39:
See id. In Trustees for Alaska, we discussed standing in the
context of plaintiffs. See id. Here, the organizations move to
intervene as defendants but the analysis does not change.
Footnote 40:
See id.
Footnote 41:
See id.
Footnote 42:
Weidner, 684 P.2d at 113.
Footnote 43:
Because we decide that Alaskans for a Common Language has a
right to participate as a party to represent the interests of
Fischetti and Jacobus, we do not need to decide whether the
organization, standing alone, could intervene to represent the
broader interest of its Alaskan membership.
Footnote 44:
See Keith, 764 F.2d at 1269-70 ("Rule 24(a) precludes a
conception of lawsuits, even 'public law' suits, as necessary
forums for such public policy debates.").
Footnote 45:
Alaska Civil Rule 24(b) states:
Permissive Intervention. Upon timely
application anyone may be permitted to intervene in an action when
an applicant's claim or defense and the main action have a question
of law or fact in common. . . . In exercising its discretion the
court shall consider whether the intervention will unduly delay or
prejudice the adjudication of the rights of the original parties.
Footnote 46:
Weidner, 684 P.2d at 114.
