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Von Stauffenberg v. The Committee for an Honest & Ethical School Board (10/6/95), 903 P 2d 1055
NOTICE: This opinion is subject to formal 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 99501-2084 or call (907) 264-0607.
THE SUPREME COURT OF THE STATE OF ALASKA
ERICH VON STAUFFENBERG, )
ROBERT ANDREWS, JUDY ) Supreme Court No. S-5795
ERECKSON, TIMOTHY SHIELDS )
and RICHARD FOLTA, ) Superior Court No.
) 1JU-93-774 CI
v. ) O P I N I O N
THE COMMITTEE FOR AN HONEST ) [No. 4269 - October 6, 1995]
AND ETHICAL SCHOOL BOARD, )
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Thomas M. Jahnke, Judge.
Appearances: John M. Sedor, Bankston &
McCollum, Anchorage, for Appellants. Richard
D. Monkman, Dillon & Findley, Juneau, for
Before: Moore, Chief Justice, Rabinowitz,
Matthews, Compton and Eastaugh, Justices.
Erich von Stauffenberg, Robert Andrews, Judy Ereckson,
Timothy Shields and Richard Folta appeal the superior court's
grant of partial summary judgment in favor of the Committee for
an Honest and Ethical School Board. In this appeal we must
determine whether allegations contained in a recall petition
state legally sufficient grounds for the recall of elected
municipal officials under Alaska's statutes.
II. FACTS AND PROCEEDINGS
During the 1992-93 school year, the Haines Borough
(Borough) was consumed with controversy surrounding elementary
school principal Mary Asper (Asper). A number of parents felt
that Asper should not be retained because she lacked the ability
to perform her job.
On April 6, 1993, the Haines Borough School Board1
(Board) held a regularly scheduled meeting. The Board was to
consider whether to retain Asper for the 1993-94 school year. A
number of concerned parents and other members of the community
attended the meeting to express their views regarding the
retention of Asper. Asper requested that Board discussion
regarding her retention take place in executive session. The
minutes reflect that, in response to Asper's request, the Board
went into executive session after reciting an exception to the
Open Meetings Act.2 The minutes state as follows:
M/S Young/Staska to move into executive
session to discuss items which would tend to
prejudice the reputation and character of a
person, and that person has been given notice
and the opportunity to request a public
Upon reconvening in public session, the Board refused
to hear any public testimony relating to the retention of Asper.
Superintendent Billingsley then recommended to the Board that it
not retain Asper. School Board member Shirley Willard then moved
to nonretain Asper. However, the motion failed for lack of a
second and Asper was retained for the next school year. In
response to the Board's rejection of her recommendation,
Superintendent Billingsley submitted her resignation, which she
subsequently withdrew. These events received much attention and
caused considerable debate and discord in the Haines Borough.
Soon thereafter, a group of "concerned parents and
voters" formed the Committee for an Honest and Ethical School
Board (Committee). Members of the Committee submitted to the
Haines Borough Clerk (Clerk) an application for a recall petition
to recall five of the seven Board members. The five Board
members whose recall was sought were Robert Andrews, Arlana
Young, Nancy Nash, Ray Menaker and Ray Staska. The application
stated the grounds for recall3 as follows:
[M]isconduct in office and failure to perform
prescribed duties by these members,
(1) Misconduct on April 6, 1993 when
the members entered into an improper, closed
door executive session, in violation of
Alaska Law, and discussed the
superintendent's decision on the retention of
Mary Asper; and
(2) Misconduct on April 6, 1993 when
the members refused to support the
superintendent's decision on the retention of
Mary Asper, which had the effect of forcing
the superintendent to resign and, a course of
action that was not in the best interests of
the students of the Haines Borough School
(3) Failure to perform prescribed
duties by failing to provide full and open
communication between themselves and the
voters of the district on then [sic] subject
of the retention of Mary Asper; and
(4) Failure to perform prescribed
duties by attending an improper, closed door
executive session, in violation of Alaska
law, [c]oncerning the superintendent's
decision on the retention of Mary Asper.4
The Clerk initially determined that the application met
the requirements of AS 29.26.260, and issued petitions to the
recall sponsors as mandated by AS 29.26.270. Members of the
Committee circulated the recall petitions and obtained a
sufficient number of signatures. The Committee then filed the
petition with the Clerk as required by AS 29.26.290(a). The
Clerk certified the sufficiency of the petition and scheduled a
recall election for July 20, 1993. However, the Clerk
subsequently "rescinded" her prior determination that the grounds
for recall were sufficient. The Clerk made a new determination
that the petition was "insufficient for failure to allege, with
particularity, facts that constitute any of the three statutory
grounds for recall." The Clerk based her decision on a
recommendation by the Haines Borough Attorney.
The Committee promptly filed suit against the Borough
and the Clerk, requesting the superior court to declare that the
application met the requirements of AS 29.26.240-.360 and to
order the Clerk to proceed with the election. The Committee then
moved for summary judgment.
The superior court granted the Committee's motion for
summary judgment in part and, to the extent that summary judgment
was not granted to the Committee, the superior court granted
summary judgment to the Borough. The only issue addressed by the
superior court was whether the grounds set forth in the recall
petition complied with the statutory standards of sufficiency.
The superior court relied on this court's directive in Meiners v.
Bering Strait School District, 687 P.2d 287, 296 (Alaska 1984),
that the recall statutes are to be "liberally construed," and
stated in pertinent part as follows:
Based upon [Meiners v. Bering Strait
School District, 687 P.2d 287 (Alaska 1984)],
the court concludes that the first and the
fourth paragraphs of the petition include
sufficient statements of grounds for recall.
Of course, the ultimate decision is left to
the voters, who may accept or reject the
claims of the petitioners.
. . . .
For the above stated reasons, the
committee is entitled to partial summary
judgment to the effect that the first and
fourth stated grounds for recall must be
submitted to the voters. The defendants are
entitled to partial summary judgment to the
effect that the second and third stated
grounds for recall are not sufficient and may
not be presented to the voters at a recall
It will also be the order of the court
that the borough clerk proceed immediately to
complete all steps necessary to hold the
recall election at the earliest possible
The superior court then entered final judgment.
Thereafter, Erich von Stauffenberg, Robert Andrews,
Judy Ereckson, Timothy Shields and Richard Folta (Intervenors)
moved to intervene in the action. The superior court granted the
motion to intervene for the purpose of appealing the grant of
partial summary judgment in favor of the Committee. This appeal
followed. The superior court later ordered the Borough to pay
the Committee's reasonable attorney's fees in the amount of
The Committee argues that this appeal should be
dismissed as moot. Specifically, the Committee notes that the
recall election was certified many months ago without contest or
appeal, and that State policy favors electoral repose. AS
29.26.070(e).6 In response, the Intervenors argue that although
this appeal may be moot, this court should consider the merits
because attorney's fees were awarded, and in the alternative,
because it falls within the public interest exception to the
mootness doctrine. In addition, the Intervenors argue that this
appeal is not moot as to Robert Andrews and Ray Staska, whose
reputation interests are at stake.
In LaMoureaux v. Totem Ocean Trailer Express, Inc., 651
P.2d 839 (Alaska 1982), we overruled cases to the contrary and
held that we would review an otherwise moot issue on its merits
to determine who the prevailing party is for purposes of awarding
attorney's fees.7 In the present case, the superior court
awarded the Committee $7,885.50 in attorney's fees and costs.
Thus, based on the reasoning in LaMoureaux, we will consider the
merits of this appeal, although moot, because a reversal would
require the Committee to repay this award.8
B. Sufficiency of the Grounds for Recall9
The Intervenors argue that the superior court erred in
concluding that the first and fourth paragraphs of the recall
petition contain sufficient statements of grounds for recall.
Specifically, the Intervenors argue that the grounds for recall
are not legally sufficient and are not stated with particularity.
In addition, the Intervenors argue that the superior court erred
in failing to determine the truth or falsity of the allegations.
1. The Recall Statutes in Alaska10
Article XI, section 8 of the Alaska Constitution states
All elected public officials in the
State, except judicial officers, are subject
to recall by the voters of the State or
political subdivision from which elected.
Procedures and grounds for recall shall be
prescribed by the legislature.
The legislature provided for the recall of elected and appointed
municipal officials in article 3 of AS 29.26. An elected or
appointed municipal official may be recalled by the voters after
the official has served the first 120 days of his or her term.
To begin the recall process, AS 29.26.260 requires that an
application for recall petition be filed with the municipal
clerk. The application must include, among other things, "a
statement in 200 words or less of the grounds for recall stated
with particularity." AS 29.26.260(a)(3). The statutory grounds
for recall are "misconduct in office, incompetence, or failure to
perform prescribed duties." AS 29.26.250.
If the clerk determines that an application meets the
requirements of AS 29.26.260, he or she then issues a recall
petition. AS 29.26.270. After the petition is circulated by its
sponsors, the clerk determines whether the signatures obtained
meet the signature requirements of AS 29.26.280. Then under AS
29.26.290(a)(1), the clerk must certify on the petition whether
it is sufficient or insufficient. Sufficient petitions are then
submitted to the municipal governing body which schedules a
recall election. AS 29.26.310-.320. The statutes offer the
recall target an opportunity to make a rebuttal statement of 200
words or less which will be placed on the recall ballot alongside
the statement of the charges. AS 29.26.330(2).
2. Legal Sufficiency of the Grounds for
As stated above, the legislature has specified that the
grounds for recall of municipal officials are "misconduct in
office, incompetence, or failure to perform prescribed duties."
AS 29.26.250. The right to recall municipal officials in Alaska
is therefore limited to recall for cause. See Meiners, 687 P.2d
at 295.11 In reviewing the legal sufficiency of allegations in
recall petitions, this court is "in a position similar to a court
ruling on a motion to dismiss a complaint for failure to state a
claim . . . [and] we must [therefore] take the allegations as
true . . . ." Id. at 300-01 n.18. Thus, in the present case, we
take the facts alleged in the first and fourth paragraphs as true
and determine whether such facts constitute a prima facie showing
of misconduct in office or failure to perform prescribed duties.12
Both paragraphs one and four allege that the officials
whose recall was sought violated Alaska law on April 6, 1993 when
the Board went into executive session for consideration of
whether to retain Asper as the elementary school principal.
Under the Alaska Open Meetings Act, government meetings are
required to be open. AS 44.62.310(a). However, certain excepted
subjects may be discussed in an executive session including
"subjects that tend to prejudice the reputation and character of
any person . . . ." AS 44.62.310(c)(2). In City of Kenai v.
Kenai Peninsula Newspapers, Inc., 642 P.2d 1316 (Alaska 1982),
this court held that a city council was authorized by AS
44.62.310(c)(2) to meet in executive session while discussing the
personal characteristics of city manager applicants. Id. at 1325-
26. Thus, we conclude that the officials whose recall was sought
did not violate Alaska law as alleged in paragraphs one and four.13
Courts from other jurisdictions have held that where
recall is required to be for cause, elected officials cannot be
recalled for legally exercising the discretion granted to them by
law.14 The recall targets in this case were properly exercising
the discretion granted to them by law when they went into an
executive session for consideration of whether to retain Asper.
We therefore hold that the superior court erred in concluding
that paragraphs one and four of the recall petition contain
sufficient statements of grounds for recall.
3. Particularity of the Grounds for Recall
As stated above, AS 29.26.260(a)(3) requires that the
grounds for recall be stated with particularity. "The purpose of
the requirement of particularity is to give the officeholder a
fair opportunity to defend his conduct in a rebuttal limited to
200 words." Meiners, 687 P.2d at 302. The allegations in
paragraphs one and four suggest that it was improper for the
Board to enter into the executive session to discuss Asper's
retention. However, the allegations fail to state why entering
into the executive session was violative of Alaska law. Thus, we
hold that paragraphs one and four of the recall petition lack
4. Truth or Falsity of the Grounds for Recall
This court stated in Meiners that it will not determine
the truth or falsity of allegations in a recall petition: "We
emphasize that it is not our role, but rather that of the voters,
to assess the truth or falsity of the allegations in the
petition." Id. at 300 n.18. This is the position taken by
courts from other states.15 Thus, we hold that the superior court
did not err in failing to determine the truth or falsity of the
C. Capacity to Sue
In its complaint, the Committee described itself as "an
unincorporated association of parents and citizens of the Haines
Borough," and asserted that it had "the capacity to sue under
Civil Rule 17(b)."16 In its answer, the Borough averred that the
Committee lacked the "capacity to sue, not being a bona fide
association with an actual existence, sufficient to support
capacity to sue under Alaska case law." On appeal, the
Intervenors argue that the Committee lacks the capacity to sue
under Civil Rule 17(b). In response, the Committee argues that
the Borough waived the issue of capacity before the superior
court, and therefore, that the Intervenors cannot challenge the
Committee's legal capacity on appeal. Specifically, the
Committee argues that the Borough did not conduct discovery, move
to dismiss, or move for summary judgment on this issue. The
superior court did not address the issue of capacity in its final
One authority states that since capacity is a threshold
defense somewhat analogous to lack of personal jurisdiction or
improper venue, it should be considered as waived under Rule
12(h)(1) if not brought to the trial court's attention by a
preliminary motion.17 The defense of lack of capacity can be
raised by a motion to dismiss for failure to state a claim, a
motion to strike, a motion for judgment on the pleadings, or a
motion for summary judgment.18
The Borough properly pleaded the issue of capacity in
its answer, but did not bring the issue to the superior court's
attention by a motion to dismiss for failure to state a claim, a
motion to strike, a motion for judgment on the pleadings, or a
motion for summary judgment. It was incumbent upon the Borough
to bring the issue to the superior court's attention and obtain a
ruling on it.19 We conclude that the Borough's failure to do so
constitutes waiver and thus decline to consider the issue of
capacity on appeal.
D. Due Process
The Intervenors argue for the first time on appeal that
recall targets have a due process right to notice and a hearing
under the due process clause of the Alaska Constitution prior to
the holding of a recall election to determine the truth or
falsity of recall allegations.20 In response, the Committee
argues that this challenge should not be considered as it was not
raised below. We agree, and decline to consider this issue
presented for the first time on appeal.21
We REVERSE the superior court's grant of summary
judgment in favor of the Committee and VACATE the superior
court's award of attorney's fees to the Committee.
1 The Haines Borough is a third class borough
incorporated pursuant to AS 29.04.030(3) and, as such, the Haines
Borough Assembly also serves as the Haines Borough School Board.
2 Alaska Statute 44.62.310(c) provides that certain
excepted subjects may be discussed in executive session including
"subjects that tend to prejudice the reputation and character of
any person, provided the person may request a public
discussion[.]" AS 44.62.310(c)(2).
Besides Board members, the following individuals
attended the executive session: Asper, her husband Linn Asper,
her attorney Richard Folta, and Nancy Billingsley, the
superintendent of the Haines School District. The executive
session lasted approximately 90 minutes.
3 Under AS 29.26.250, the grounds for recall of an
elected municipal official are "misconduct in office,
incompetence, or failure to perform prescribed duties."
4 Contrary to the allegations contained in the recall
petition, several of the recall sponsors were quoted in the press
as saying that the recall targets probably did not violate
Alaska law. Larry Glackin, one sponsor, was quoted as stating
that "[e]verything [the Board] did was probably strictly
legal[.]" Similarly, Shane Horton, another sponsor, was quoted
as stating that the Board's conduct may have been legal, "but
legal is not necessarily just and right."
5 The following facts are only marginally related to the
issues involved in this appeal. On August 20, 1993, the recall
election took place pursuant to the superior court's order. In
that election, two of the four recall targets, Arlana Young and
Ray Staska, were voted out of office by wide margins. However,
the recall targets, sitting as the Borough's election board,
refused to certify the results of the election. After being
apprised that the recall targets had invalidated the election,
the superior court issued an order to show cause. A second
recall election was held on November 23, 1993, and all but one of
the recall targets were recalled by wide margins. The election
was certified on November 30, 1993.
6 Alaska Statute 29.26.070(e) provides as follows:
A person may not appeal or seek judicial
review of an election for any cause unless
the person is a voter, has exhausted all
administrative remedies before the governing
body, and has commenced, within 10 days after
the governing body has declared the election
results, an action in the superior court in
the judicial district in which the
municipality is located. If court action is
not commenced within the 10-day period, the
election and election results are conclusive
7 Id. at 840 n.1; see also Hickel v. Southeast
Conference, 868 P.2d 919, 928 (Alaska 1994); T & G Aviation, Inc.
v. Footh, 792 P.2d 671, 672 n.1 (Alaska 1990) (Matthews, J.,
8 Because we decide to consider the merits of this appeal
based on the award of attorney's fees and costs, we need not
determine whether this appeal falls within the public interest
exception to the mootness doctrine or whether this appeal is moot
as to Robert Andrews and Ray Staska.
9 This is an appeal from the superior court's grant of
partial summary judgment in favor of the Committee. When
reviewing a grant of summary judgment, this court must determine
"whether there are any genuine issues of material fact and, if
not, whether the moving party is entitled to judgment [as a
matter of law] on the established facts." Zeilinger v. SOHIO
Alaska Petroleum Co., 823 P.2d 653, 656 n.6 (Alaska 1992). To
the extent that this appeal requires this court to construe
Alaska's recall statutes, this court exercises its independent
judgment and adopts "the rule of law which is most persuasive in
light of precedent, policy and reason." Zsupnik v. State, 789
P.2d 357, 359 (Alaska 1990).
10 For a history of the recall process in Alaska, see
Meiners, 687 P.2d at 294-96.
11 Accord In re Recall of Call, 749 P.2d 674, 676 (Wash.
1988) ("The right to recall elected officials is limited to
recall for cause so as to free public officials from the
harassment of recall elections grounded on frivolous charges or
12 That is, we assume for purposes of review that the
Board members entered into a closed door session for
consideration of whether to retain Asper, and we determine
whether doing so was a violation of Alaska law.
13 In Meiners, this court stated that a petition which
alleges violation of totally non-existent laws is legally
insufficient, while a petition which merely characterizes the law
in a way different than the targeted official would prefer is
legally sufficient. Meiners, 687 P.2d at 301. As to the latter
case, this court stated that the "rebuttal statement is the
proper forum in which the official may defend against the
charges." Id. Given the relevant exception to the Open Meetings
Act, the grounds for recall allege a violation of a totally
nonexistent law. That is, there is no law which precludes public
officials from discussing sensitive personnel matters in closed
door executive sessions.
14 See, e.g., Chandler v. Otto, 693 P.2d 71, 74 (Wash.
1984); see also 4 Eugene McQuillin, Municipal Corporations ''
12.251.15, 12.251.35 (3d ed. 1992).
15 City Council of Gladstone v. Yeaman, 768 S.W.2d 103,
107 (Mo. App. 1988) ("it is not the function of a reviewing court
to rule on the truth or falsity of the charges, [but] only to
determine the sufficiency of the reasons"); In re Recall of Call,
749 P.2d at 676 ("there can be no inquiry by the court into the
truth or falsity of the charges"); In re Recall of Redner, 450
N.W.2d 808, 810 (Wis. App. 1989) ("when determining whether cause
is alleged, it is not the court's function to determine the truth
or falsity of the grounds alleged in the petition"); see also 4
McQuillin, supra note 14, ' 12.251.35 (the truth of the recall
allegations is for determination by the electors alone).
16 Alaska Civil Rule 17(b) provides that:
The capacity of an individual, other
than one acting in a representative capacity,
to sue or be sued shall be determined by the
law of his domicile. . . . A partnership or
other unincorporated association may sue or
be sued in its common name.
Moreover, Alaska Civil Rule 9(a) provides in part that:
When a party desires to raise an issue as to
the legal existence of any party or the
capacity of any party to sue or be sued in a
representative capacity, the party desiring
to raise the issue shall do so by specific
negative averment, which shall include such
supporting particulars as are peculiarly
within the pleader's knowledge.
The Borough's answer contained a specific negative averment
denying the Committee's capacity to sue. Thus, the Borough
sufficiently raised the issue of capacity.
17 6A Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure ' 1559 (2d ed. 1990).
18 5 id. ' 1294.
19 See Peoples Bank and Trust Co. v. Wallace, 721 S.W.2d
659, 661 (Ark. 1986) (court held that party's failure to bring
analogous issue of standing to trial court's attention
constitutes waiver even though issue was properly pleaded in
20 Alaska Const. art. I, ' 7.
21 Gates v. City of Tenakee Springs, 822 P.2d 455, 460