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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. RBG Bush Planes, LLC v. Kirk (1/9/2015) sp-6978
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, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
RBG BUSH PLANES, LLC, )
ROBERT B. GILLAM, )
Supreme Court No. S-15217
and MCKINLEY CAPITAL )
MANAGEMENT, LLC, )
Superior Court No. 3AN-12-10793 CI
)
Appellants, )
O P I N I O N
)
v. ) No. 6978 - January 9, 2015
)
KENNETH KIRK, in his official )
capacity as Chair of the Alaska )
Public Offices Commission, and )
PAUL R. DAUPHINAIS, in his )
official capacity as Executive Director )
of the Alaska Public Offices )
Commission, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Kevin M. Saxby, Judge.
Appearances: Timothy A. McKeever, Holmes Weddle &
Barcott, PC, Anchorage, for Appellant RBG Bush Planes
LLC. JL McCarrey, McKinley Capital Management LLC,
Anchorage, Attorney for Appellant McKinley Capital
Management LLC. Ronald L. Bliss, Bliss Wilkens &
Clayton, Anchorage, for Appellant Robert B. Gillam. John
M. Ptacin, Assistant Attorney General, Anchorage, and
Michael C. Geraghty, Attorney General, Juneau, for Appellee
Paul R. Dauphinais. William E. Milks, Assistant Attorney
General, and Michael C. Geraghty, Attorney General, Juneau,
for Appellee Kenneth Kirk.
----------------------- Page 2-----------------------
Before: Winfree, Stowers, and Bolger, Justices.
[Fabe, Chief Justice, and Maassen, Justice, not participating.]
BOLGER, Justice.
I. INTRODUCTION
Robert Gillam and two of his business ventures (collectively, Gillam) filed
suit, alleging that the Alaska Public Offices Commission should not be allowed to
investigate and decide whether Gillam had committed certain campaign finance
violations. Gillam alleged that both the Executive Director and the Chair of the
Commission were biased and that further consideration by the Commission would violate
his right to due process protected by the Alaska and federal constitutions and his Alaska
constitutional right to a fair investigation. The superior court concluded that Gillam's
claims are not ripe and that Gillam has failed to exhaust his administrative remedies. We
agree that there is an administrative recusal procedure for Gillam's state law claims and
that Gillam must exhaust that remedy before bringing his state law claims to court. We
also agree that Gillam's federal due process claim is not ripe because the recusal
procedure may resolve that claim.
II. FACTS AND PROCEEDINGS
The Alaska Public Offices Commission is appointed by the governor1 and
2
charged with interpreting and enforcing Alaska's campaign finance laws. In that
capacity, the Commission investigates and adjudicates claims that those laws have been
1 AS 15.13.020.
2 AS 15.13.030; see also Alaska Right to Life Comm. v. Miles, 441 F.3d 773,
776 (9th Cir. 2006).
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3 4
violated. There are five commissioners who appoint a chairperson and who may
5
employ an executive director, as well as any additional staff they require.
A person who suspects a violation of campaign finance laws may file a
complaint with the Commission, and the complaint must satisfy several formal
6
requirements. When the Commission receives the complaint, its staff determines
whether the complaint satisfies those formal requirements, and, if so, the staff
7
Finally, the Commission
investigates the complaint and prepares a report of its findings.
holds a hearing and issues a decision,8 which is appealable to the superior court.9
In August 2012 Joel Natwick filed a complaint with the Commission
against the three appellants: Gillam, RBG Bush Planes, and McKinley Capital
Management. The Commission staff accepted the complaint over Gillam's objection that
it failed to meet the formal requirements mentioned above, and it asked Gillam to
produce several documents for purposes of an investigation. The Commission requested
3 AS 15.13.020(a).
4 AS 15.13.020(g).
5 AS 15.13.020(i). Neither the executive director nor any other Commission
employee may vote on matters decided by the Commission. Id.
6 2 Alaska Administrative Code (AAC) 50.870 (2013). The complaint must
be in writing, signed "under oath and upon penalty of perjury" and notarized, and must
contain certain information such as the facts constituting the alleged violation and the
basis for the complainant's knowledge of those facts. Id.
7 2 AAC 50.875.
8 2 AAC 50.875(e); 2 AAC 50.891.
9 AS 15.13.380(g).
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that an Administrative Law Judge (ALJ) be assigned to oversee the Natwick
proceedings, and one was assigned.
In September 2012 there was apparently a meeting between Curtis Thayer,
a Deputy Commissioner of the Department of Administration, and appellee Paul
Dauphinais, the Executive Director of the Commission. Thayer later testified in a
deposition that, at the meeting, Dauphinais asked for a budget increase so the
Commission could investigate and thus "get" and "ruin" Gillam. At the same meeting,
Dauphinais allegedly mentioned a conversation he had with the Securities and Exchange
Commission (SEC) regarding purported wrongdoing that "would bring Mr. Gillam's
business down."
Gillam filed suit in superior court in November 2012 against Elizabeth
Hickerson, in her capacity as Chair of the Commission, and Paul Dauphinais, in his
10 Gillam invoked 42 U.S.C. §§ 1983
capacity as Executive Director of the Commission.
and 1988, as well as provisions of the federal and Alaska constitutions, claiming his
constitutional rights were being violated in the Natwick matter due to bias on the part of
the Commission. Gillam asked that the court enjoin the Commission from being
involved in any way with the Natwick complaint and appoint a special investigator to
investigate the matter. He also asked that an independent ALJ or the superior court
conduct any hearing to adjudicate the complaint.
Hickerson and Dauphinais moved to dismiss under Alaska Civil
Rule 12(b)(6). They also moved to stay discovery pending the court's decision on
dismissal. Gillam opposed the motions to dismiss and moved for a preliminary
injunction to stay the Natwick proceedings. Gillam attached to his motion a portion of
10 The current chair of the Commission, Kenneth Kirk, has recently been
substituted in place of Elizabeth Hickerson.
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----------------------- Page 5-----------------------
the transcript of Thayer's deposition testimony as well as an affidavit from former
Commission staff member Vullnet Greva to demonstrate the Commission's alleged bias
against Gillam.
The superior court granted Gillam leave to submit supplemental briefing
in response to the motions to dismiss and to address all pending discovery motions.
Gillam submitted briefing, to which he appended additional evidence - notes from an
interview with a former Commission attorney. The superior court then informed the
parties that, because of the evidence that had been introduced post-pleading, it would
convert the Rule 12(b)(6) motion to dismiss to a Alaska Civil Rule 56 motion for
summary judgment. The superior court granted summary judgment to Hickerson and
Dauphinais. Gillam now appeals to this court.
III. STANDARD OF REVIEW
"We review grants of summary judgment de novo, 'draw[ing] all factual
inferences in favor of, and view[ing] the facts in the light most favorable to, the party
11
"We will affirm the grant of
against whom summary judgment was granted.' "
summary judgment when the record presents no genuine issues of material fact and the
movant was entitled to judgment as a matter of law."12
"Whether a type of claim generally requires exhaustion of administrative
13 But "[w]e review for abuse of
remedies is a legal question that we review de novo."
11 Charles v. Stout, 308 P.3d 1138, 1140 (Alaska 2013) (alteration in original)
(quoting Interior Cabaret, Hotel, Rest. & Retailers Ass'n v. Fairbanks N. Star Borough ,
135 P.3d 1000, 1002 (Alaska 2006)).
12 Id. (citing Smith v. State, 282 P.3d 300, 303 (Alaska 2012)).
13 Winterrowd v. State, Dep't of Admin., Div. of Motor Vehicles, 288 P.3d 446,
449 (Alaska 2012) (emphasis in original) (quoting Smart v. State, Dep't of Health & Soc.
(continued...)
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----------------------- Page 6-----------------------
discretion a superior court's determination of whether a plaintiff exhausted those
remedies or whether the failure to exhaust should be excused."14 Questions of ripeness
15
are reviewed de novo. An Alaska Civil Rule 56(f) decision is reviewed for abuse of
discretion.16
IV. DISCUSSION
The superior court granted summary judgment to Hickerson for three
reasons: (1) failure to exhaust administrative remedies; (2) lack of ripeness; and
(3) failure to allege "facts sufficient to overcome the presumption of integrity to which
Ms. Hickerson and the other commissioners [were] entitled." The court also granted
summary judgment to Dauphinais, noting that although the allegations against him were
"more troubling," judicial intervention was nonetheless "improper" based on the claim's
lack of ripeness.
As noted above, Gillam alleged claims under 42 U.S.C. § 1983 and the
17
Alaska Constitution. Specifically, he argued that the Commission violated the
13(...continued)
Servs., 237 P.3d 1010, 1014 (Alaska 2010)).
14 Id. (quoting Smart, 237 P.3d at 1014).
15 State v. Am. Civil Liberties Union of Alaska, 204 P.3d 364, 368 (Alaska
2009) (citations omitted).
16 Mitchell v. Teck Cominco Alaska Inc. , 193 P.3d 751, 757 (Alaska 2008)
(citing Hymes v. DeRamus , 119 P.3d 963, 965 (Alaska 2005)).
17 42 U.S.C. § 1983 (2012) provides, in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
. . . subjects, or causes to be subjected, any citizen of
the United States . . . to the deprivation of any rights,
(continued...)
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----------------------- Page 7-----------------------
Fourteenth Amendment to the United States Constitution and article I, section 7 of the
Alaska Constitution. Both constitutional provisions protect one's right not to be
18
but the Alaska
deprived of life, liberty, or property without due process of law,
Constitution additionally protects "[t]he right of all persons to fair and just treatment in
19
the course of legislative and executive investigations."
With respect to Gillam's state constitutional claim, we agree with the
superior court that Gillam failed to exhaust his administrative remedies. As to the federal
constitutional claim, we conclude that although exhaustion of remedies was not required,
the claim was not ripe for review. Thus, we affirm the superior court's grant of summary
judgment against Gillam. 20
A. Exhaustion Of Administrative Remedies
To determine "whether a complaint was correctly dismissed for failure to
exhaust administrative remedies, we must decide whether (a) exhaustion of remedies was
17(...continued)
privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding
for redress.
Section 1983 offers "a uniquely federal remedy against incursions under the claimed
authority of state law upon rights secured by the Constitution and laws of the Nation."
Mitchum v. Foster , 407 U.S. 225, 239 (1972).
18 U.S. CONST . amend. XIV, § 1; Alaska Const. art. I, § 7.
19 Alaska Const. art. I, § 7.
20 Because we affirm on exhaustion and ripeness grounds, we need not
address the superior court's dismissal on the alternative, presumption-of-integrity
ground. See Winterrowd v. State, Dep't of Admin., Div. of Motor Vehicles, 288 P.3d 446,
449-50 (Alaska 2012).
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----------------------- Page 8-----------------------
required; (b) the complainant exhausted those remedies; and (c) the failure to exhaust
21
remedies was excused."
1. Gillam was required to exhaust administrative remedies only
with respect to his state constitutional claim.
As a general matter, "[e]xhaustion is required if a statute or regulation
22
provides for administrative review." "[C]ertain 'pure issues of law,' most notably
constitutional issues [and] certain questions of statutory validity, are 'within the special
expertise' of the court, . . . [but] only the purest legal questions, requiring no factual
23
context, are exempt from the exhaustion requirement." In other words, "exhaustion
may be required when non-constitutional issues are present or when a factual context is
needed for deciding the constitutional issue."24
In Commission proceedings,25 the Alaska Administrative Procedure Act
(APA) provides that "[a] party may request the disqualification of a hearing officer or
agency member by filing an affidavit, before the taking of evidence at a hearing, stating
with particularity the grounds upon which it is claimed that a fair and impartial hearing
21 Id. at 450 (citation omitted).
22 Id.
23 Doubleday v. State, Commercial Fisheries Entry Comm'n , 238 P.3d 100,
107 (Alaska 2010) (citation omitted) (quoting Moore v. State, Dep't of Transp. & Pub.
Facilities , 875 P.2d 765, 767 (Alaska 1994)).
24
Ben Lomond, Inc. v. Municipality of Anchorage , 761 P.2d 119, 122 (Alaska
1988) (citing 4 KENNETH CULP DAVIS , ADMINISTRATIVE LAW TREATISE § 26:6 (2d ed.
1983)) (also noting that "successful pursuit of a claim through the administrative process
could obviate the need for judicial review of the constitutional issues" and that "it is
axiomatic to our system of justice that we have a factual context within which to review
a case.").
25 See AS 44.62.330(a)(23).
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26
cannot be accorded." The resolution of Gillam's state constitutional claim would
benefit from the type of factual record developed in an administrative resolution of such
27
We thus conclude that Gillam would generally be required to exhaust this
a request.
remedy before seeking judicial intervention.28
But because Gillam raised a federal constitutional claim under section 1983,
our analysis does not end here. In Patsy v. Board of Regents , the United States Supreme
Court held that a plaintiff need not exhaust state administrative remedies before filing a
29
section 1983 suit in federal court, and in Felder v. Casey , the Court expanded that
30
holding to litigation commenced in state courts. This court applied that rule in Diedrich
v. City of Ketchikan, concluding that "federal law does not permit states to require
exhaustion of administrative remedies as a prerequisite to the maintenance of a section
31
1983 claim."
We disagree with the superior court's conclusion that a departure from
Diedrich is warranted because Gillam's alleged injury involves a biased tribunal, thus
raising the question of "whether and how [the injury] may be avoided in the first place."
26 AS 44.62.450(c).
27 Cf. Voigt v. Snowden, 923 P.2d 778, 782 (Alaska 1996) (noting that the
administrative termination process could have allayed an employee's fears of a biased
decision-maker); Eufemio v. Kodiak Island Hosp. , 837 P.2d 95, 99 (Alaska 1992) (noting
that a hospital peer review committee could "identify unfair or arbitrary processes, such
as a biased tribunal, and correct the deficiency to avoid litigation").
28 Gillam raises various arguments as to why, despite this statutory procedure,
no remedy existed. We address these arguments in the following sub-section.
29 457 U.S. 496, 516 (1982).
30 487 U.S. 131, 146-47, 153 (1988).
31 805 P.2d 362, 368 (Alaska 1991).
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32
The superior court cited two Ninth Circuit decisions, Flangas v. State Bar of Nevada
33
and Stivers v. Pierce, as establishing that a section 1983 plaintiff alleging bias "has a
duty to avail himself of agency recusal procedures if they are provided for by statute."
But neither case so decisively supports this proposition.
First, the decision in Flangas was based on the doctrine of abstention, under
which a federal court "must refrain from hearing constitutional challenges to state action
under certain circumstances in which a federal action is regarded as an improper
34
intrusion on the right of a state to enforce its laws in its own courts." Under this
doctrine, such intrusion may nonetheless be warranted under "exceptional
35
In Flangas , an attorney had sued in federal district court under section
circumstances."
1983, alleging bias on the part of the Nevada Supreme Court justices involved in a
36
disciplinary proceeding against him. The Ninth Circuit concluded that because the
attorney "fail[ed] to utilize Nevada's disqualification procedures," the court was "unable
to determine" whether the case presented "exceptional circumstances" necessary to
37 Flangas thus stands
warrant a federal injunction of the pending state court proceeding.
for the proposition that exhaustion of remedies may be required to enjoin a state court
proceeding; it does not show that exhaustion of state administrative remedies can be
required to bring a section 1983 claim in state court.
32 655 F.2d 946 (9th Cir. 1981).
33 71 F.3d 732 (9th Cir. 1995).
34 655 F.2d at 948 (citing Younger v. Harris, 401 U.S. 37 (1971)).
35 Id. at 949 (citing Rosenthal v. Carr , 614 F.2d 1219, 1220 (9th Cir. 1980)).
36 Id. at 947-48.
37 Id. at 949-50.
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Stivers is similarly inapposite. In that case, the Ninth Circuit considered
whether a section 1983 plaintiff had waived the issue of tribunal bias by failing to ask
for recusal of the allegedly biased tribunal member before the tribunal adjudicated the
38
underlying matter. Citing only cases dealing with abstention, the court noted that
"[w]here state law provides a mechanism for seeking recusal, the litigant may be required
39
to avail himself of that mechanism." But the court found that no recusal procedures
existed,40 and accordingly, it had no occasion to address the special protection afforded
41
Based on the clear rule articulated
section 1983 claims under Patsy and its progeny.
in this United States Supreme Court precedent,42 we conclude that Gillam's federal
constitutional claim is saved from dismissal on exhaustion grounds because it was
43
brought under section 1983.
38 71 F.3d at 748.
39 Id. (emphasis added) (citing Partington v. Gedan, 880 F.2d 116, 127 (9th
Cir.1989) (noting recusal procedures in assessing whether "exceptional circumstances"
existed); Flangas , 655 F.2d at 950).
40 Id.
41
See Patsy v. Board of Regents, 457 U.S. 496, 516 (1982) (concluding "that
exhaustion of state administrative remedies should not be required as a prerequisite to
bringing an action pursuant to § 1983"); Felder v. Casey , 487 U.S. 131, 147 (1988)
(concluding that given the goals of section 1983, Congress could not have "contemplated
that those who sought to vindicate their federal rights in state courts could be required
to seek redress in the first instance from the very state officials whose hostility to those
rights precipitated their injuries.").
42 See id.
43
As we discuss in Part IV.B, however, we affirm the superior court's
decision on the alternative ground that Gillam's section 1983 claim is not ripe.
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Based on our decision in Diedrich , however, we also conclude that Gillam's
state constitutional claim may be separated from his section 1983 claim for purposes of
exhaustion. In Diedrich , the plaintiff challenged the termination of his employment with
44
the City of Ketchikan under both section 1983 and other grounds. In particular, he
alleged that the City "had breached the covenant of good faith and fair dealing implied
in his employment contract," that his discharge was retaliatory, and "that the City had
violated his constitutional rights to substantive due process (premised in part on
42 U.S.C. § 1983) by offering a pretext for his termination."45 The superior court treated
the suit as an administrative appeal, holding that it was untimely under the applicable
46 On appeal, this court held that although the
statute of limitations, which is 30 days.
plaintiff's section 1983 claim could not be dismissed for lack of timeliness, the plaintiff's
suit was nonetheless "properly considered an administrative appeal" with respect to the
non-section 1983 claims, which were "appropriately dismissed as untimely."47
Thus, under Diedrich , Gillam was required to exhaust his administrative
remedies with respect to his state constitutional claims, even though they are presented
in the same action as his section 1983 claim.
2. The APA provides for administrative review of Gillam's bias
claims.
Gillam contends that exhaustion was not required because no administrative
remedies existed. But as noted above, a party to a Commission proceeding "may request
the disqualification of a hearing officer or agency member by filing an affidavit, before
44 805 P.2d 362, 364-65 (Alaska 1991).
45 Id.
46 Id. at 365, 368; see also Alaska R. App. P. 602(a)(2).
47 Diedrich , 805 P.2d at 366, 368-69.
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the taking of evidence at a hearing, stating with particularity the grounds upon which it
48
is claimed that a fair and impartial hearing cannot be accorded."
As an initial matter, we reject Gillam's contention that "ruling on whether
the Commissioners and Staff are biased is outside the [Commission's] statutory
authority." Alaska Statute 44.62.450(c) explicitly provides the Commission with the
statutory authority to address allegations of bias within its ranks. Gillam is correct that
the Commission was not created for the purpose of "investigating bias and managing
compliance with due process requirements," but it is still statutorily authorized to do so
when necessary. Gillam argues that he cannot be forced to submit to the Commission's
disqualification proceeding without suffering constitutional injury because "the
49
[Commission] is a biased tribunal." However, Gillam's claim that the Commission is
biased has not yet been adjudicated on the merits, so his argument is unavailing.50
Similarly, Gillam argues that the APA at AS 44.62.560(e) authorizes the
court to "enjoin agency action in excess of constitutional or statutory authority at any
48 AS 44.62.450(c).
49 Along a similar vein, Gillam argues that the statutory disqualification
procedures are not available because it would require an allegedly biased agency member
to rule on his or her own disqualification. But the Commission has five members, and
the statute provides that where a disqualification request "concerns an agency member,"
the disqualification issue "shall be determined by the other members of the agency." AS
44.62.450(c) (emphasis added).
50
Gillam argues that for purposes of summary judgment, the court was
required to assume the Commission was biased against him. This is accurate. However,
even if we assume the Commission is biased against Gillam, the Commission should still
be allowed the opportunity to recuse itself or some of its members, given the fact that
recusal is proper in exactly such a situation - that is, where bias exists. Indeed, AS
44.62.450(c) provides for disqualification where a party states "with particularity" why
"a fair and impartial hearing cannot be accorded."
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----------------------- Page 14-----------------------
51
stage of an agency proceeding." But we cannot determine whether the Commission has
acted in excess of its authority until Gillam has exhausted his administrative remedies
52
by pursing the APA's procedure for disqualification.
Gillam also argues that "the legislature contemplated circumstances where
the superior court will hear administrative complaints normally subject to the
[Commission's] primary jurisdiction." He points to two statutory provisions, each of
which addresses a situation in which the Commission has failed to timely proceed on a
53
complaint. Because Gillam does not claim that the Commission failed to take timely
action on the Natwick complaint, his proffered authority does not apply to this situation
and cannot be used to support his argument that exhaustion should not have been
required.
Contrary to Gillam's contention, moreover, the statutory disqualification
procedures were available to him even before staff had completed its investigation and
54
issued its report. Gillam argues that had such a report been completed, it would have
"serve[d] as an accusation, that would cause reputational and financial harm to [him], as
previous Staff Reports have." But there is no apparent reason why Gillam could not
51 Gillam makes this and the following argument in the ripeness portion of his
brief, but they appear to be more relevant to exhaustion. We thus address them here.
52 See AS 44.62.450(c).
53
Alaska Statute 15.13.380(h) allows an administrative complainant to file
in superior court if the Commission has failed to take action on a complaint within 90
days of filing; Alaska Statute 44.62.305(a) allows a party to an administrative proceeding
to sue in superior court if "the state agency has unreasonably delayed the progress of the
administrative proceeding."
54 See AS 44.62.450(c) ("A party may request the disqualification of a hearing
officer or agency member by filing an affidavit, before the taking of evidence at a
hearing . . . .") .
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have filed an affidavit, per the statutory procedure, as early as he suspected Commission
55
bias - so long as he did so at some time "before the taking of evidence at a hearing."
Additionally, Gillam asserts "the trial court fundamentally erred in its
assumption that [he was] seeking a remedy confined to the Natwick complaint." But the
scope of the remedy sought in Gillam's complaint is limited to the Natwick proceedings.
He asked only that the Commission be disqualified from having any further involvement
in that matter.
Finally, the disqualification procedure outlined in AS 44.62.450(c)
represents an administrative remedy to Dauphinais's allegedly biased conduct. Even if
the statutory procedure does not expressly address improper staff conduct, it nonetheless
provides Gillam with an opportunity to prove how Dauphinais's alleged bias has tainted
the other Commissioners, thus allowing the Commission to formulate a response. This
response may include not only recusal of a Commissioner but also restrictions as to staff
involvement in the Natwick matter.
3. Exhaustion of administrative remedies would not be futile.
Gillam points out that "the failure to exhaust administrative remedies is
excused . . . where the pursuit of the administrative remedy would be futile due to the
56
certainty of an adverse decision." He argues that exhaustion of administrative remedies
would have been futile here because "the evidence showed that the Commissioners and
Staff were biased against" him. The superior court disagreed, distinguishing Gillam's
55 Id.
56 See Bruns v. Municipality of Anchorage, 32 P.3d 362, 371 (Alaska 2001)
(internal quotation marks omitted).
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case from one in which a regulatory commission refused to hear the plaintiff's claims at
all, thus rendering exhaustion of administrative remedies "manifestly futile."57
The superior court instead compared Gillam's case to one in which a
tribunal - the Department of Revenue - had received a memorandum from the
58
There, the
Attorney General suggesting that the plaintiff's claim was untenable.
Department wrote a letter to the plaintiff, stating "[i]t would take a rare and unusual
situation to disregard" the Attorney General's opinion, but also stressing the importance
59 This court acknowledged it was "highly
of the Department's formal review process.
possible" that the Department would ultimately defer to the Attorney General's opinion
and find against the plaintiff, but "a decision adverse to [the plaintiff's] interests [still
did] not appear to be a 'certainty.' "60
Gillam argues that his case is more similar to one in which this court
affirmed the superior court's decision to excuse exhaustion on futility grounds because
the Department of Revenue refused to address the plaintiffs' constitutional challenge.61
He also offers a similar case in which exhaustion was deemed futile because an employee
attempting to sue regarding a collective bargaining agreement was prevented by his
57 See Matanuska Elec. Ass'n, Inc. v. Chugach Elec. Ass'n, Inc., 99 P.3d 553,
560-61 (Alaska 2004).
58 Standard Alaska Prod. Co. v. State, Dep't of Revenue, 773 P.2d 201,
208-09 (Alaska 1989).
59 Id. at 209.
60 Id. (quoting Municipality of Anchorage v. Higgins , 754 P.2d 745, 747-48
(Alaska 1988) (holding that an exception to the rule would be unwarranted absent a
showing that exhaustion "would so certainly result in an adverse decision as to render
the remedy futile" (internal quotation marks omitted)).
61 State, Dep't of Revenue v. Andrade, 23 P.3d 58, 67 (Alaska 2001).
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----------------------- Page 17-----------------------
62
union representative from utilizing the proper administrative procedures. But those
cases are distinguishable because the Commission has never refused to address Gillam's
bias contentions. Gillam's argument that, here, the Commission has "effectively
refused" to address his claims because it is biased is unavailing for the reasons explained
above.63
Finally, Gillam notes this court's holding that failure to exhaust may be
excused "where the administrative procedures are ineffective because of . . . bias . . . or
the possibility that the claimant could face irreparable harm if the administrative process
is followed."64 To this end, he asserts: (1) "[s]ubmission to a fatally biased
decisionmaking process is in itself a constitutional injury . . . "65 and (2) the Commission
will use the time required to exhaust administrative remedies to injure Gillam. But the
superior court only found fault with Gillam's failure to utilize the available
administrative recusal procedures. As explained above, those procedures anticipate
situations in which bias may necessitate recusal, but they still require the agency itself
66
to make that determination. Gillam's second contention is purely speculative.
Thus, the superior court did not abuse its discretion when it held Gillam had
failed to show that exhaustion of administrative remedies was certain to be futile. We
62 Beard v. Baum , 796 P.2d 1344, 1349 (Alaska 1990).
63 See supra note 50.
64 Hymes v. DeRamus , 222 P.3d 874, 883 (Alaska 2010) (quoting Bruns v.
Municipality of Anchorage , 32 P.3d 362, 371 n.46 (Alaska 2001)).
65 United Church of the Med. Ctr. v. Med. Ctr. Comm'n, 689 F.2d 693, 701
(7th Cir. 1982).
66 See supra note 50.
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----------------------- Page 18-----------------------
therefore affirm the superior court's dismissal of Gillam's Alaska constitutional claim
for failure to exhaust administrative remedies.
B. The Superior Court Did Not Err By Granting Summary Judgment
For Lack Of Ripeness As To Gillam's Federal Constitutional Claim.
The superior court also granted summary judgment for lack of ripeness,
reasoning that Gillam's injury is merely prospective. Ripeness "depends on 'whether . . .
there is a substantial controversy, between parties having adverse legal interests, of
sufficient immediacy and reality to warrant the issuance of a declaratory judgment.' "67
In particular, this court "examine[s] 'the fitness of the issues for judicial decision' and
68
'the hardship to the parties of withholding court consideration.' "
Only Gillam's federal constitutional claim remains after our exhaustion
analysis. Accordingly, our ripeness inquiry applies only to interests protected by the
Fourteenth Amendment to the United States Constitution - namely, the right not to be
69
Gillam is correct to
deprived of life, liberty, or property without due process of law.
point out that "[s]ubmission to a fatally biased decisionmaking process is in itself a
70
constitutional injury." Indeed, "[a] fair trial in a fair tribunal is a basic requirement of
67 State v. Am. Civil Liberties Union of Alaska , 204 P.3d 364, 369 (Alaska
2009) (alteration in original) (quoting Brause v. State, Dep't of Health & Soc. Servs., 21
P.3d 357, 359 (Alaska 2001)).
68 Id. (quoting Brause , 21 P.3d at 359).
69 U.S. CONST . amend. XIV, § 1; see also Zinermon v. Burch , 494 U.S. 113,
126 (1990) ("In procedural due process claims, the deprivation by state action of a
constitutionally protected interest in life, liberty, or property is not in itself
unconstitutional; what is unconstitutional is the deprivation of such an interest without
due process of law." (emphasis in original) (internal quotation marks omitted)).
70 See United Church of the Med. Ctr., 689 F.2d at 701.
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71
due process." In evaluating a procedural due process claim, a court must therefore
examine "the procedural safeguards built into the statutory or administrative procedure
of effecting the deprivation, and any remedies for erroneous deprivations provided by
72
Here, no hearing has occurred, and thus Gillam's injury - for
statute or tort law."
federal due process purposes - is purely prospective.73
The Ninth Circuit's decision in Standard Alaska Production Company v.
Schaible is directly relevant to evaluating the ripeness of Gillam's federal constitutional
74
claim. There, the State of Alaska filed suit in state court against a group of oil
producers, seeking to recover from an alleged underpayment of royalties owed to the
75
State. The producers filed suit in federal court under section 1983 for injunctive and
declaratory relief against the state court proceedings, alleging that they would be
deprived of their right to an impartial tribunal because, as Permanent Fund Dividend
recipients, all potential judges and jurors in the state courts would have a direct interest
71 Stivers v. Pierce, 71 F.3d 732, 741 (9th Cir. 1995) (quoting In re
Murchison , 349 U.S. 133, 136 (1955)) (internal quotation marks omitted).
72 Zinermon, 494 U.S. at 126.
73
Gillam asserts that his alleged injuries are not merely prospective, but have
already occurred or are ongoing. In particular, he contends that: (1) the Commission
staff accepted the Natwick complaint even though it was technically deficient; (2) during
the Natwick investigation, the Commission staff made unreasonable document requests;
and (3) the Commission staff has already contacted the SEC in an attempt to ruin Gillam
and his business. But these injuries relate solely to the investigative stage of the Natwick
matter, and accordingly, are relevant only in the context of Gillam's Alaska
constitutional claim regarding "fair and just treatment in the course of legislative and
executive investigations." Alaska Const. art. I, § 7.
74 874 F.2d 624 (9th Cir. 1989).
75 Id. at 625.
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76
in the case's outcome. The federal district court dismissed the oil producers' case on
ripeness grounds, and the Ninth Circuit affirmed, noting that the producers had not
attempted to use Alaska's judicial disqualification procedures to avoid potential conflicts
and had not demonstrated that the procedures were "inadequate to resolve the issue of
77
bias."
Like the plaintiffs in Standard Alaska Production, Gillam has not taken
advantage of the procedures available to prevent his "[s]ubmission to a fatally biased
78
tribunal" from occurring. The APA expressly provides for situations where, as here,
79
"it is claimed that a fair and impartial hearing cannot be accorded." Similarly, the
Commission's regulations provide for disqualification of a Commissioner who is "unable
to participate in a decision in an unbiased manner so as to reach a fair and impartial
80
decision." Accordingly, Gillam's procedural due process claim is only ripe if he can
show that this procedure is "inadequate to resolve the issue of bias."81
Gillam raises various arguments as to why the APA's disqualification
process is inadequate. For instance, Gillam argues that the Commission will be an
ineffective investigator because "the Commissioners do not have any specialized
76 Id. at 625-26.
77 Id. at 629; see also id. at 626, 630.
78 See United Church of the Med. Ctr., 689 F.2d at 701.
79 AS 44.62.450(c).
80 2 AAC 50.835.
81 Standard Alaska Prod. Co., 874 F.2d at 629; see also District of Columbia
v. Craig, 930 A.2d 946, 966-67 (D.C. Cir. 2007) (holding that procedural due process
claims regarding tax assessments were unripe because plaintiffs still were in the
administrative review process and "ha[d] not yet allowed the statutorily-prescribed
process to run its course").
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knowledge with regard to personnel issues." But AS 44.62.450(c) charges all agencies
under the purview of the APA with deciding recusal issues as they arise, regardless of
the agencies' standard functions.
Similarly, Gillam argues that because of the Commissioners' bias, they
"necessarily cannot decide if they, and the Staff carrying out their policy, are biased."
But as discussed above, the statutory scheme anticipates precisely the kind of allegation
at issue here, and does not allow a Commissioner to vote on a request for his or her own
82 And although, as Gillam points out, the APA may not specifically
disqualification.
address staff misconduct, Gillam has presented no evidence that the Commissioners are
unwilling to evaluate his allegations regarding Dauphinais's bias. Because Gillam has
not shown the disqualification process to be facially inadequate, the superior court
cannot know whether the process will be inadequate as applied until it has been given
a chance to work.
Finally, we share the superior court's concerns regarding the lack of factual
83
development, which the administrative process would help address. As the superior
court explained:
[F]urther factual development will be valuable should a court
need to address the issues again on appeal. For example, Mr.
Dauphinais denies that the conversation which forms the
basis for much of Mr. Gillam's complaint occurred as Mr.
Gillam claims. The [Commission] has the time, resources,
and expertise to quickly investigate this matter. . . . Likewise,
the commissioners deny that Mr. Dauphinais pursued his
alleged bias with their encouragement, approval, or even
82 See supra notes 49 & 50 and accompanying text.
83 As we noted in Brause , among the factors we look to in evaluating the
ripeness of a claim is "the need for further factual development to aid decision." 21 P.3d
357, 360 (Alaska 2001) (internal quotation marks omitted).
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knowledge. Allowing the commissioners the opportunity to
consider and rule on the matter and then inspecting that
administrative record is preferable, in this court's view, to
hauling the commissioners into court at the outset as a means
to test their impartiality.
Gillam argues that "[t]he factual development desired by the trial court was possible, and
should have been obtained, by ruling on the pending discovery motions, a continuance
to allow further discovery, and an evidentiary hearing." But this argument does not
address the view that the facts would be better developed at the agency level.84
Gillam has not been subject to a hearing in the Natwick matter and has not
availed himself of the process for ensuring that he receives a "fair trial in a fair
85
tribunal." Because Gillam has not shown that process to be inadequate, his claim of
tribunal bias is not fit for judicial decision. We therefore affirm the superior court's
decision to dismiss Gillam's section 1983 claim for lack of ripeness.
C. The Superior Court Did Not Err By Failing To Consider And Grant
Gillam's Request To Conduct Additional Discovery.
Gillam argues the superior court should not have granted summary
86
judgment when there was a pending request for additional discovery. Gillam's
argument relies on Alaska Rule of Civil Procedure 56(f), which states: "Should it appear
84 Gillam also argues the court improperly "considered potential delay to the
Natwick investigation due to continued proceedings before the [s]uperior [c]ourt." But
the superior court merely noted its fear that, over the course of judicial proceedings, "the
facts giving rise to the initial complaint may be obscured." This is a reasonable concern,
and one that does not evidence any desire on the part of the superior court to "rush" the
Natwick proceeding, but rather to preserve its adjudicability.
85
See Stivers v. Pierce, 71 F.3d 732, 741 (9th Cir. 1995) (quoting In re
Murchison , 349 U.S. 133, 136 (1955)) (internal quotation marks omitted).
86 Gillam also takes issue with Hickerson's and Dauphinais's requests to stay
discovery but provides no argument as to why their requests were improper.
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from the affidavits of a party opposing the motion [for summary judgment] that the party
cannot for reasons stated present by affidavit facts essential to justify the party's
opposition, the court may refuse the application for judgment," order a continuance, or
take similar such action. But to benefit from the rule, a party "must unambiguously
87
request relief on Rule 56(f) grounds."
Here, Gillam "reserve[d] the right to seek an ARCP 56(f) continuance" but
appears never to have followed through. He argues that he "made it clear [he] was
seeking a continuance to conduct necessary discovery to defend against summary
judgment," but points to nothing in the record to support his claim. The superior court
cannot have abused its discretion where Gillam failed to invoke Rule 56(f).
V. CONCLUSION
The judgment of the superior court is AFFIRMED.
87 Mitchell v. Teck Cominco Alaska Inc. , 193 P.3d 751, 758 (Alaska 2008).
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