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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Law Project for Psychiatric Rights, Inc. v. State (10/1/2010) sp-6518
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, e-mail
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
LAW PROJECT FOR PSYCHIATRIC )
RIGHTS, INC., an Alaskan non-profit )
corporation, )
) Supreme Court No. S-13558
Appellant, )
) Superior Court No. 3AN-08-10115 CI
v. )
) O P I N I O N
STATE OF ALASKA, et al., )
) No. 6518 - October 1, 2010
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Jack W. Smith, Judge.
Appearances: James B. Gottstein, Law Project for
Psychiatric Rights, Inc., Anchorage, for Appellant. Michael
G. Hotchkin, Assistant Attorney General, Anchorage, and
Daniel S. Sullivan, Attorney General, Juneau, for Appellees.
Before: Fabe, Winfree, Christen, and Stowers, Justices.
[Carpeneti, Chief Justice, not participating.]
WINFREE, Justice.
I. INTRODUCTION
A non-profit public interest law firm filed suit in its own name against the
State of Alaska seeking to establish constitutional standards that must be met before
compelling minors to take psychotropic medications. The superior court granted a stay
of discovery pending the State's motion to dismiss for lack of standing. The superior
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court then dismissed the complaint for lack of standing and later awarded the State nearly
$4,000 in attorney's fees under Alaska Rule of Civil Procedure 82(b)(2). Because the
superior court did not err in dismissing the lawsuit for lack of standing and did not
otherwise abuse its discretion, we affirm its decisions.
II. FACTS AND PROCEEDINGS
Law Project for Psychiatric Rights, Inc. (LPPR) is a non-profit Alaska
corporation operating as a public interest law firm. LPPR's mission is "to mount a
strategic litigation campaign against forced psychiatric drugging and electroshock."
In September 2008 LPPR initiated suit against the State and seven State
employees in their official capacities (collectively "the State"), seeking declaratory and
injunctive relief regarding children's rights in compelled psychotropic drug
administration. LPPR claimed administering psychotropic medication to children
without their consent constitutes involuntary medicating and "infringes upon [the
children's] fundamental constitutional rights." LPPR sought a declaratory judgment that
"children . . . have the right not to be administered psychotropic drugs unless and until"
certain standards are met. LPPR also sought to permanently enjoin the State from
"authorizing or paying for" psychotropic drug administration that fails to follow the
proposed standards.
After filing an answer the State moved contemporaneously for judgment on
the pleadings and to stay discovery. The State argued that LPPR's complaint should be
dismissed for lack of standing and observed that LPPR failed to "identify a single
individual who has been harmed by the alleged violations." The State argued a stay of
discovery was particularly appropriate pending the dispositive motion because the
"motion raise[d] pure questions of law which discovery [was] not needed to resolve."
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LPPR opposed both motions. As to standing, LPPR argued it satisfied
citizen-taxpayer standing. Although LPPR conceded it did not assert interest-injury
standing to sue either on its own behalf or on behalf of any individual member of the
class described in its complaint, it argued the complaint could be amended to include a
named plaintiff. LPPR explained it was a proper litigant because affected children and
parents were unlikely to file suit, due in part to lack of resources. LPPR also claimed that
an individual litigant might be unable to obtain injunctive relief. As to the discovery
stay, LPPR argued the motion for judgment on the pleadings was "not likely to dispose
of the entire case" and therefore discovery should proceed. LPPR outlined two discovery
objectives, neither of which suggested LPPR required discovery to address the State's
standing argument.
The superior court granted both of the State's motions. First the court
stayed discovery pending its decision on the motion for judgment on the pleadings. The
court later found LPPR had not asserted interest-injury standing and had failed to
establish citizen-taxpayer standing. The court found that, despite raising questions of
public significance, LPPR was not an appropriate litigant to bring the action and stated
that "the affected children, their parents or guardians[,] or even the state would make a
more appropriate plaintiff." The court further concluded that LPPR "failed to establish
any parent or guardian with a legitimate grievance on behalf of their juvenile or child has
declined to sue" or that "any legitimate claim has gone unpursued." Concluding that
LPPR lacked standing to litigate the issues, the court dismissed the complaint.
The State then moved for partial attorney's fees under Rule 82(b)(2).1
1 Rule 82(b)(2) provides in pertinent part: "In cases in which the prevailing
party recovers no money judgment, the court . . . shall award the prevailing party in a
case resolved without trial 20 percent of its actual attorney's fees which were necessarily
(continued...)
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LPPR opposed the motion, citing Rule 82(b)(3)(I)2 and asserting that "[a]ny award is
likely to deter litigants from the voluntary use of the courts." The court granted the
State's motion and, adhering to Rule 82(b)(2), awarded the State $3,876 in attorney's
fees.
LPPR appeals the superior court's decisions to dismiss for lack of standing,
stay discovery, and award the State attorney's fees.
III. STANDARD OF REVIEW
We review de novo whether a party has standing to sue, as the issue raises
a question of law.3 We review a superior court's ruling on a motion to stay discovery for
abuse of discretion.4 Abuse of discretion occurs "when we are left with a definite and
firm conviction after reviewing the whole record that the [superior] court erred in its
5 6
ruling." We also review attorney's fees awards for abuse of discretion. We will reverse
1 (...continued)
incurred."
2 Rule 82(b)(3)(I) provides in pertinent part:
The court may vary an attorney's fee award calculated under
subparagraph (b)(1) or (2) of this rule if . . . the court
determines a variation is warranted [considering] the extent
to which a given fee award may be so onerous to the
non-prevailing party that it would deter similarly situated
litigants from the voluntary use of the courts.
3 Keller v. French, 205 P.3d 299, 302 (Alaska 2009) (citing 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)).
4 Armstrong v. Tanaka, 228 P.3d 79, 82 (Alaska 2010) (citing Stone v. Int'l
Marine Carriers, Inc., 918 P.2d 551, 554 (Alaska 1996)).
5 Christensen v. NCH Corp., 956 P.2d 468, 473 (Alaska 1998) (citing Stone,
(continued...)
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an attorney's fees award only if it is "arbitrary, capricious, manifestly unreasonable, or
stems from an improper motive."7
IV. DISCUSSION
A. Standing
"Standing is a ‘rule of judicial self-restraint based on the principle that
courts should not resolve abstract questions or issue advisory opinions.' "8 The
fundamental question raised by an objection to standing is whether the litigant is a proper
party to seek adjudication of a particular issue.9 Although we favor access to judicial
forums, a basic requirement of standing is adversity of interests.10 We recognize two
general types of standing sufficient to meet the adversity requirement ? interest-injury
standing and citizen-taxpayer standing.11 For interest-injury standing we also recognize
third-party standing, which allows a litigant to raise the rights of a third person in special
5 (...continued)
918 P.2d at 554).
6 Marsingill v. O'Malley, 128 P.3d 151, 156 (Alaska 2006) (citingAlderman
v. Iditarod Props., Inc., 104 P.3d 136, 140 (Alaska 2004)).
7 Id. (quoting Nichols v. State Farm Fire & Cas. Co., 6 P.3d 300, 303 (Alaska
2000)).
8 Keller, 205 P.3d at 302 (quoting Ruckle v. Anchorage Sch. Dist., 85 P.3d
1030, 1034 (Alaska 2004)).
9 Trs. for Alaska v. State, 736 P.2d 324, 327 (Alaska 1987) (quoting Moore
v. State, 553 P.2d 8, 23 n.25 (Alaska 1976)).
10 Id. (citing Moore, 553 P.2d at 23 & n.25).
11 Id.
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circumstances.12 To establish citizen-taxpayer standing, a litigant must show that the
issues raised are of public significance and that it is an appropriate litigant to seek
adjudication of those issues.13
At oral argument before us, LPPR conceded that the constitutional right it
seeks to establish is an individual right. But LPPR nonetheless maintained that
compelled psychotropic medicating is a matter of great social consequence and therefore
a matter of public significance for purposes of citizen-taxpayer standing. In Keller v.
French the plaintiffs attempted to rely on citizen-taxpayer standing to assert the personal
constitutional rights of a small number of third parties involved in a legislative
investigation.14 There, however, "[w]e decline[d] to allow the use of citizen-taxpayer
standing as a substitute for third-party standing."15 Keller is indistinguishable from the
situation here ? LPPR seeks to establish a personal constitutional right on behalf of an
unknown number of minors through citizen-taxpayer standing. But LPPR offers no
persuasive argument to permit substituting citizen-taxpayer standing for third-party
12 Foster v. State, 752 P.2d 459, 466 (Alaska 1988) (Moore, J., concurring)
("Under the interest-injury approach, a litigant can have standing either to protect his
own rights, or, in rare cases, to protect the rights of third parties by acting in a
representative capacity.") (citing Wagstaff v. Super. Ct., Fam. Ct. Div., 535 P.2d 1220,
1225-26 (Alaska 1975));see also, e.g., State v. Planned Parenthood of Alaska, 35 P.3d
30, 34 (Alaska 2001) (citing among others Singleton v. Wulff, 428 U.S. 106, 117 (1976))
(stating "physicians have standing to challenge abortion laws on behalf of prospective
patients"); Bonjour v. Bonjour, 592 P.2d 1233, 1241 n.15 (Alaska 1979) (citingAbington
Sch. Dist. v. Schempp, 374 U.S. 203, 224 n.9 (1963)) (concluding parent had standing to
assert child's constitutional rights under the Establishment Clause).
13 Keller, 205 P.3d at 302 (citing Trs. for Alaska, 736 P.2d at 329).
14 See id. at 301-04 (concerning protections during legislative investigations
under the fair and just treatment clause of the Alaska Constitution).
15 Id. at 304.
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standing in this case.
LPPR fails to satisfy the elements of citizen-taxpayer standing in any event.
As the State contends, even assuming the issues raised are of public significance for
citizen-taxpayer standing,16 an individual (or group) directly affected by the State's
administration of psychotropic drugs to minors would be the appropriate litigant. And
despite LPPR's argument to the contrary, the systemic relief LPPR seeks could be
obtained by an individual litigant through the application of stare decisis17 or by a class
action seeking broad declaratory and injunctive relief.18 As we made clear in Keller,
"[t]hat individuals who are more directly affected have chosen not to sue despite their
ability to do so does not confer citizen-taxpayer standing on an inappropriate plaintiff."19
LPPR speculates that potential litigants are limited in their ability to sue to
establish and protect their individual constitutional rights regarding compelled
16 But cf. id. at 305 (Winfree, J., concurring) (commenting that violation of an
individual's personal constitutional rights likely does not constitute "public significance"
justifying citizen-taxpayer standing).
17 See Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 373, 376-78
(Alaska 2007) (establishing, upon one patient's challenge, standards for involuntary
commitment for a mental disorder); Myers v. Alaska Psychiatric Inst., 138 P.3d 238, 239
(Alaska 2006) (establishing, upon one patient's challenge, standards treatment facilities
must follow for administering psychotropic medication to patients in non-emergency
situations).
18 See Smith v. Cleary, 24 P.3d 1245, 1247, 1251-52 (Alaska 2001) (observing
class consisting of state prisoners moved to enjoin State from transferring prisoners to
out-of-state jails but noting class could have requested a broad declaratory judgment).
19 Keller, 205 P.3d at 303. Although we conclude those directly affected by
the State's administration of psychotropic drugs to minors are appropriate litigants, we
express no opinion on the superior court's comment that the State could be an
appropriate litigant.
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psychotropic medication. LPPR suggests, without providing any supporting evidence,
that people involved in protective proceedings fear retaliation by the State if they contest
compelled psychotropic medication. Yet it is in those very proceedings where protected
persons have access to counsel to represent their interests and protect against potential
retaliation.20 LPPR also suggests that individuals are reluctant to be involved in lawsuits
out of fear of an adverse attorney's fees award. Yet the legislature has expressly
provided protection against adverse attorney's fees awards for those who unsuccessfully
assert non-frivolous constitutional claims without an economic incentive.21
We therefore affirm the superior court's dismissal of LPPR's suit for lack
of standing.
B. Stay Of Discovery
LPPR argues it was an abuse of discretion for the superior court to stay
discovery because LPPR required discovery to defend against the State's motion for
judgment on the pleadings. But LPPR raises this argument for the first time on appeal.
LPPR's opposition to the State's motion to stay discovery did not contain an explicit
argument that LPPR required discovery to establish citizen-taxpayer standing. LPPR's
only mention of standing in its opposition to stay discovery was an assertion that the
issue was "unmeritorious and [could] be addressed by naming additional plaintiffs." And
although LPPR's opposition to the State's motion for judgment on the pleadings
20 See AS 47.30.725(d) (providing the respondent with a right to be
represented by an attorney before involuntary admission for mental health treatment); see
also Wetherhorn, 156 P.3d at 383 (stating the Alaska Constitution's Due Process Clause
guarantees a person the right to counsel in involuntary commitment and administration
of psychotropic medication proceedings). Potential litigants may be indigent or unable
to afford representation, as LPPR suggests, but the right to court-appointed counsel
disposes of LPPR's suggestion that this prevents them bringing suit.
21 See AS 09.60.010(c)(2).
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mentioned that discovery would be used to reveal the State's purported coercion of
parents, the motion never explicitly stated discovery was necessary to satisfy citizen-
taxpayer standing. The issue is therefore not properly before us and we decline to
address it.22
C. Attorney's Fees Award
The State requested and received an attorney's fees award under Rule
82(b)(2). LPPR argues that it was an abuse of discretion for the superior court not to give
weight to Rule 82(b)(3)(I), which allows the court to vary a Rule 82(b)(2) award if the
presumptive award "may be so onerous to the non-prevailing party that it would deter
similarly situated litigants from the voluntary use of the courts."23
We first note that LPPR did not explicitly argue in the superior court and
does not argue on appeal that it is protected from an adverse attorney's fees award under
AS 09.60.010(c)(2), although its lawsuit appears to have "concern[ed] the establishment,
protection, or enforcement of a [constitutional] right."24 We therefore express no opinion
on the application of AS 09.60.010(c)(2) to this case. Instead we follow the parties'
convention in analyzing the superior court's attorney's fees award under Rule 82.
22 See Vivian P. v. State, Dep't of Health & Soc. Servs., Div. of Family &
Youth Servs., 78 P.3d 703, 709 (Alaska 2003) ("We will not address an issue on appeal
that was not raised at trial." (citing Brandon v. Corr. Corp. of Am., 28 P.3d 269, 280
(Alaska 2001))). We apply our independent judgment to determine if an issue has been
waived. Lauth v. State, 12 P.3d 181, 184 (Alaska 2000) (citing Wilkerson v. State, Dep't
of Health & Soc. Servs., Div. of Family & Youth Servs., 993 P.2d 1018, 1021 (Alaska
1999)).
23 Alaska R. Civ. P. 82(b)(3)(I).
24 AS 09.60.010(c)(2).
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The presumptive Rule 82(b)(2) award here is less than $4,000.25 LPPR
argues that the adverse awardwill deter similarly situated litigants from bringing suit, but
we have already noted that statutory protection against adverse attorney's fees awards
exists for certain non-prevailing parties raising constitutional claims.26 Based on the
record, we conclude that it was not abuse of discretion for the superior court to award the
State partial attorney's fees under Rule 82(b)(2).
V. CONCLUSION
We AFFIRM the superior court's decisions.
25 Because the superior court's attorney's fees award "accords with the
presumptive percentages in Rule 82(b)(2) . . . the court need not offer an explanation of
its award." Marsingill, 128 P.3d at 163 (citing Nichols, 6 P.3d at 305).
26 See note 21, above and accompanying text.
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