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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

RBG Bush Planes, LLC v. Kirk (1/9/2015) sp-6978, 340 P3d 1056

        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  


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.  


                    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.  


                    The Alaska Public Offices Commission is appointed by the governor1 and  



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).  

                                                             -2-                                                           6978  

----------------------- Page 3-----------------------

                                                               3                                           4  

violated.    There  are  five  commissioners   who  appoint  a  chairperson   and  who  may  


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  


requirements.     When  the  Commission  receives  the  complaint,  its  staff  determines  

whether  the  complaint  satisfies  those  formal  requirements,  and,  if  so,  the  staff  


                                                                                               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).  

                                                               -3-                                                         6978

----------------------- Page 4-----------------------

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.  

                                                             -4-                                                         6978  

----------------------- 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.  


                    "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  


                                                                                      "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.



                                                               -5-                                                         6978

----------------------- 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  



are reviewed de novo.                An Alaska Civil Rule 56(f) decision is reviewed for abuse of  




                   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  


Alaska  Constitution.                Specifically,  he  argued  that  the  Commission  violated  the  


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,  



                                                             -6-                                                       6978

----------------------- 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  


                                                                                                        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  


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  


                             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).  

                                                             -7-                                                       6978

----------------------- Page 8-----------------------


required; (b) the complainant exhausted those remedies; and (c) the failure to exhaust  


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  


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  


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)).   



                       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).  

                                                                        -8-	                                                                6978

----------------------- Page 9-----------------------


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  


                   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  


section 1983 suit in federal court,                   and in Felder v. Casey , the Court expanded that  



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  


 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).  

                                                              -9-                                                        6978

----------------------- Page 10-----------------------



The superior court cited two Ninth Circuit decisions, Flangas v. State Bar of Nevada 


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  


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  


                             In Flangas , an attorney had sued in federal district court under section  


1983, alleging bias on  the part of the Nevada Supreme Court justices involved in a  



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.   

                                                               -10-                                                          6978

----------------------- Page 11-----------------------


                    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  


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  


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  


                                                                             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  


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.  



                    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.  



                    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.  

                                                             -11-                                                        6978

----------------------- Page 12-----------------------

                   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  


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  


                   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.  

                                                           -12-	                                                     6978

----------------------- Page 13-----------------------


the taking of evidence at a hearing, stating with particularity the grounds upon which it  


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  



[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).  



                    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."  

                                                              -13-                                                         6978

----------------------- Page 14-----------------------


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  


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  



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  


                     Contrary to Gillam's contention, moreover, the statutory disqualification  

procedures were available to him even before staff had completed its investigation and  



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).  



                    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 . . . .") .  

                                                               -14-                                                          6978

----------------------- Page 15-----------------------

have filed an affidavit, per the statutory procedure, as early as he suspected Commission  



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  


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).  

                                                             -15-                                                          6978  

----------------------- Page 16-----------------------

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  


                                                                                                              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).  

                                                           -16-                                                      6978

----------------------- Page 17-----------------------



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  


                     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  


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.  

                                                                -17-                                                          6978

----------------------- 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  


'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  


                                                                                                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  



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.  

                                                           -18-	                                                     6978

----------------------- Page 19-----------------------


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  


                                 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  



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  



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.  



                    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.  

                                                             -19-                                                       6978

----------------------- Page 20-----------------------



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  



                   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  


tribunal" from occurring.    The APA expressly provides for situations where, as here,  


"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  



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").  

                                                          -20-                                                     6978

----------------------- Page 21-----------------------

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  


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  


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).  

                                                           -21-                                                        6978  

----------------------- Page 22-----------------------

                    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  


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  


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.  



                    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.  

                                                               -22-	                                                       6978

----------------------- Page 23-----------------------

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  


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).  

                                                                -23-                                                              6978  

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