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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Anchorage Baptist Temple v. Coonrad (08/31/2007) sp-6155
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| ANCHORAGE BAPTIST TEMPLE, | ) |
| ) Supreme Court No. S- 12421 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-06-8866 CI | |
| v. | ) |
| ) O P I N I O N | |
| KEITH COONROD; RAY | ) |
| METCALFE; AMERICAN CIVIL | ) No. 6155 - August 31, 2007 |
| LIBERTIES UNION OF ALASKA; | ) |
| CLYDE BAXLEY; GRACE | ) |
| BROWN; BILL JAGER; AL | ) |
| SUNDQUIST; JAMES WOOLEVER; | ) |
| ARLEN ACHARIAS; DOROTHY | ) |
| ZAPPA; and STATE OF ALASKA, | ) |
| ) | |
| Appellees. | ) |
| ) | |
VALLEY BAPTIST TABERNACLE )
and HAMILTON ACRES BAPTIST ) Supreme Court No. S-12442
CHURCH, )
) Superior Court No. 3AN-06-8943
CI
Appellants, ) Superior Court No. 3AN-06-
8866 CI
)
v. )
)
CLYDE BAXLEY, GRACE )
BROWN; BILL JAGER; AL )
SUNDQUIST; JAMES WOOLEVER; )
ARLEN ACHARIAS; DOROTHY )
ZAPPA; KEITH COONROD; RAY )
METCALFE; AMERICAN CIVIL )
LIBERTIES UNION OF ALASKA; )
and STATE OF ALASKA, )
)
Appellees. )
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Mark Rindner, Judge.
Appearances: Dan K. Coffey, The Law Offices
of Ernouf & Coffey, P.C., Anchorage, and
Mathew D. Staver and Erik W. Stanley, Liberty
Counsel, Lynchburg, Virginia, for Appellant
Anchorage Baptist Temple. Kevin G. Clarkson,
Brena, Bell & Clarkson, P.C., Anchorage, for
Appellants Valley Baptist Tabernacle and
Hamilton Acres Baptist Church. Jason
Brandeis, ACLU of Alaska Foundation,
Anchorage, for Appellees Keith Coonrod, Ray
Metcalfe, and American Civil Liberties Union
of Alaska. Richard W. Postma, Jr., Assistant
Attorney General, Anchorage, and David W.
M rquez, Attorney General, Juneau, for
Appellee State of Alaska.
Before: Fabe, Chief Justice, Eastaugh,
Bryner, and Carpeneti, Justices. [Matthews,
Justice, not participating.]
EASTAUGH, Justice.
I. INTRODUCTION
When citizens filed two lawsuits challenging the
constitutionality of a statute, AS 29.45.030(b), that exempts
teachers residences owned by religious organizations from
property taxes, three churches sought to intervene. The churches
were initially permitted to intervene in one lawsuit, but were
ultimately relegated to amicus curiae status after the two
lawsuits were consolidated. They appeal, claiming that they have
a direct and substantial interest in the litigation, and that
their interest is not being adequately represented by the State
of Alaska.
By order issued March 2, 2007 we ruled that it was
error to deny the motions to intervene. This opinion explains
our reasons for that ruling.
We do not question the states ability to fairly and
vigorously represent its citizens and the associations to which
they belong, including religious associations such as these
churches. But we reverse because these churches have significant
financial and potentially unrepresented constitutional interests
in the litigation, because there may be actual adversity as to
one argument the churches seem to advance, and because the state,
by suggesting it cannot represent the churches interests, has
created the appearance of adversity of interest. The churches
are therefore entitled under Alaska Civil Rule 24(a) to
intervene as of right.
II. FACTS AND PROCEEDINGS
The Alaska Legislature recently amended AS 29.45.030(b)
to create a mandatory property tax exemption for educators
residences owned by private religious or parochial schools.1 The
amendment became effective on August 23, 2006.2
Before the amended law took effect, two groups of
citizen-taxpayers filed lawsuits against the State of Alaska to
challenge the amended statutes validity. Keith Coonrod, Ray
Metcalfe, and the American Civil Liberties Union of Alaska filed
the first lawsuit on June 12, 2006.3 We refer to them
collectively as the Coonrod plaintiffs or Coonrod appellees.
Clyde Baxley and other Anchorage residents filed the second
lawsuit on June 14, 2006.4 Although the merits of the two
lawsuits are not at issue in this appeal, the plaintiffs in both
lawsuits contended that the new tax exemption violates the
establishment clauses of the Alaska and United States
Constitutions.
Anchorage Baptist Temple, Valley Baptist Tabernacle,
and Hamilton Acres Baptist Church sought to intervene in both
lawsuits as parties aligned with the only named defendant, the
State of Alaska.5 Anchorage Baptist sought to intervene because
it asserted it will have to pay at least $23,000 per year in
property taxes if the law is struck down. Hamilton Acres and
Valley Baptist alleged that they own property that they plan to
use for teacher housing in the future. The Coonrod plaintiffs
opposed intervention; the state and the Baxley plaintiffs did
not. The three churches motions to intervene were denied by
Superior Court Judge Mark Rindner in the Coonrod case, but were
granted by Superior Court Judge Patrick J. McKay in the Baxley
case. Judge Rindner permitted the three churches to participate
as amici curiae.
When the two cases were consolidated at the states
request, Judge McKay sua sponte vacated his earlier order, thus
denying the churches intervention motions, and allowed them to
participate as amici curiae instead. The consolidated lawsuit
was stayed pending this appeal.
On appeal, the churches asked us to reverse the
superior court orders denying their intervention motions.6 The
Coonrod appellees asked us to affirm. The Baxley appellees did
not file briefs, and have not opposed the churches intervention
motions. Appellee State of Alaska also asked us to reverse the
orders denying intervention.
We heard oral argument on January 9, 2007 and on March
2 we issued an order holding that appellants were entitled to
intervene per Alaska Civil Rule 24(a).7 Our order reversed the
orders denying intervention and remanded. We issued that order
to minimize delay in the superior court proceedings. A copy is
attached as Appendix A. This opinion explains our reasons for
that ruling.
III. STANDARD OF REVIEW
We review a denial of a timely Rule 24(a) motion to
intervene as of right using our independent judgment.8
IV. DISCUSSION
The churches claim that they are entitled to intervene
as of right under Rule 24(a). Rule 24(a) provides:
Upon timely application anyone shall be
permitted to intervene in an action when the
applicant claims an interest relating to the
property or transaction which is the subject
of the action and the applicant is so
situated that the disposition of the action
may as a practical matter impair or impede
the applicants ability to protect that
interest, unless the applicants interest is
adequately represented by existing
parties.[9]
Because we favor broad access to the courts, we will
liberally construe Alaska Civil Rule 24(a).10 We apply a four-
part test to determine whether a party is entitled to intervene
under Rule 24(a):
(1) the motion must be timely; (2) the
applicant must show an interest in the
subject matter of the action; (3) the
applicant must show that this interest may be
impaired as a consequence of the action; and
(4) the applicant must show that the interest
is not adequately represented by an existing
party.[11]
Turning to the first part of the test, no party asserts
that the motions were untimely. We will not hold that a motion
to intervene is untimely if no party raises timeliness as an
issue.12
Under the second part of the test, the churches
interest in the lawsuit must be direct, substantial, and
significantly protectable.13 The churches argue that their
interest in the lawsuit is direct, substantial, and significantly
protectable for four reasons. First, they argue that they have a
financial interest in the outcome of the litigation. The state
joins them in this argument. Second, Anchorage Baptist claims
that the Coonrod plaintiffs conceded that it has an interest in
the litigation by arguing that the law was passed to benefit
Anchorage Baptist. Third, Valley Baptist and Hamilton Acres
argue that the tax exemption is already vested in them by article
IX, section 4 of the Alaska Constitution. Fourth, Valley Baptist
and Hamilton Acres argue that the pre-amendment tax policy
violated their right to equal protection of the law because non-
religious private schools have been granted a tax exemption for
teacher housing for decades.14
The Coonrod appellees respond that neither the churches
financial interests nor their constitutional interests are
sufficiently weighty to justify intervention. The Coonrod
appellees also argue that Anchorage Baptist does not have a
legally cognizable individualized stake in the matter even if it
was the intended beneficiary of the legislation.
We agree with the Coonrod appellees that although
Anchorage Baptist may have been the intended beneficiary of the
legislation, it did not necessarily have a legally cognizable
interest for purposes of intervention. Those affected, even
negatively, by a lawsuit may be significantly more numerous than
those who are entitled to intervene under the four-part test. We
also agree that an indirect financial interest, standing alone,
is insufficient to secure intervenor status. In Laborers Local
942 v. Lampkin, we ruled in favor of a union seeking to intervene
in a lawsuit challenging a project labor agreement.15 We held
that the union was entitled to intervene because it helped
negotiate the agreement, not because it was merely a beneficiary
of the agreement.16 Here, all three churches have asserted a much
more direct financial interest eligibility for a valuable
property tax exemption if the statute is valid than the union
had in Lampkin. Moreover, as discussed below, the churches
interest is not merely financial.
We reversed orders denying intervention under Rule
24(a) in two prior cases in which the proposed intervenors raised
constitutional issues in conjunction with other legal interests.
In McCormick v. Smith, the superior court enjoined a recall
election and voters who wished to recall a school board member
sought to intervene to challenge the injunction that the city
chose not to appeal.17 We held that the voters had a sufficient
interest in the matter to intervene because the right to recall
is established in the Alaska Constitution.18 We also noted that
the interest of these particular voters was heightened because
they had initiated the recall.19 In Alaskans for a Common
Language, Inc. v. Kritz, the sponsors of an initiative that the
governor had publicly criticized sought to intervene in an action
challenging the initiatives constitutionality.20 We concluded
that the sponsors had sufficient legal interest to intervene
because the initiative process is constitutionally based, because
they had drafted the legislation, and because they had an
obligation to represent the other sponsors in all matters
concerning the initiative.21
The churches meet the heightened standard discussed in
Kritz and McCormick. They have alleged that the pre-amendment
practice of granting tax exemptions for teacher residences owned
by non-religious private schools would violate equal protection
because there was no similar exemption for religious schools.
Even if the legislature had not amended the tax exemption
statute, the churches would be entitled to advance this equal
protection challenge.22 When their financial interest is
considered in conjunction with constitutional arguments the state
is unlikely to raise, the churches interests are direct,
substantial, and significantly protectable.23
Regarding the third part of the test, the churches
interest in the tax exemption may be impaired as a result of
these lawsuits. If the law is struck down as unconstitutional,
the churches will be unable to assert their alleged
constitutional or actual financial interests in the tax
exemption.24
Turning to the fourth part of the test, the churches
argue that the state will not adequately represent their
interests. We presume that the state will adequately represent
the interests of all of its citizens in trying to uphold a
statute against a constitutional challenge, because the state is
charged by law with representing the interests of the people.25 A
proposed intervenor may rebut this presumption by making a
showing of collusion, adversity of interest, possible
nonfeasance, or incompetence.26 We allowed intervention in Kritz
due to a possible appearance of adversity of interest,27 but only
in a rare case will the mere appearance of an adverse interest
justify intervention.
The churches argue that there is actual adversity
between the states interests and theirs. They assert that the
state is making different tactical decisions than the churches
would, that the state has competing obligations both to defend
the statute and to equalize the tax burden, and that a state
official testified against the exemption.
Whether the state generally has an obligation to
equalize the tax burden is irrelevant here.28 The record below
contains no indication that the state, in order to equalize the
tax burden, or for any other reason, will fail to defend its own
duly enacted law. Regarding the states tactical decisions, as
the Coonrod appellees point out, [d]ifferences in trial strategy
do not establish a right to intervention.29 Finally, Valley
Baptist and Hamilton Acres argue that a state assessor testified
against the exemption; they compare this case to Kritz, where a
member of the Attorney Generals Office questioned the
constitutionality of the English-only initiative before it was
placed on the ballot. This comparison is unconvincing for two
reasons. First, although the Attorney Generals Office was
responsible for enforcing the challenged initiative and defending
it in court, a state tax assessor is not responsible for
enforcing a tax exemption or defending it in court. Second, the
assessor described the law as unfunded. This may arguably be
either a criticism or an accurate and neutral characterization of
the laws fiscal underpinnings, but it is a far cry from
criticizing it as unconstitutional.
Hamilton Acres and Valley Baptist argue that the
practice of granting tax exemptions to private non-religious
educational organizations while denying them to churches violates
equal protection. Although they advance this argument to show
that they have a substantial interest, this incipient equal
protection argument is also relevant to determining whether the
interests of the state and the churches are adverse because the
intervenors wish to raise an argument no existing party is likely
to make. We think it is unlikely that the state, in arguing that
the present statute is constitutional, would contend that the
amendment was necessary to cure any pre-amendment
unconstitutionality, and there is no sign in the record that the
state has raised any such contention to date. Because the
churches make an equal protection argument that the state is
unlikely to raise, we conclude that the churches and states
interests are adverse.
The state echoes the churches broad intervention
arguments, and also asserts that there is an apparent conflict,
both because it has a duty to equalize the tax burden and because
the state assessor publicly opposed the amendment. We remain
unconvinced by the equalization and state assessor arguments, but
we nonetheless conclude that there exists an apparent conflict.
The state contends that because the churches were not
permitted to intervene, the state is now entangled with them,
creating a possible appearance of adversity of interest. The
state seems to argue that because it is defending a law that
benefits religious organizations, it might appear to be using its
prestige, coercive authority, or resources in a manner that
violates its duty to remain neutral in religious disputes. If
pursuing a lawsuit were to excessively entangle the state with
religious organizations, a violation of the state and federal
establishment clauses would result.30 There is no such danger
here. The state is charged with the duty of neutrally
representing the interests of all of its citizens and the
associations they belong to, including churches, by defending
duly enacted laws. The United States Supreme Court has held that
the guarantee of neutrality is respected, not offended, when the
government, following neutral criteria and evenhanded policies,
extends benefits to recipients whose ideologies and viewpoints,
including religious ones, are broad and diverse.31 In its
capacity as a party, the state is not here extending a benefit,
but is instead executing its duty by represent[ing] the state in
all civil actions in which the state is a party.32 It is
appropriately trying to uphold a duly enacted statute against
constitutional attack. Because the state is not violating the
principle of neutrality, it is not violating the establishment
clause. Our conclusion is supported by a persuasive United
States Court of Appeals for the Fifth Circuit decision holding
that a state could assert the rights of all Mississippians
affected by the law, including the Free Exercise rights of the
Proposed Intervenors, in constitutionally defending a law that
allowed for school prayer.33
Although we are unpersuaded by the states establishment
clause argument, we nonetheless perceive an appearance of
adversity. The state has actually asserted that the
establishment clause impairs its ability to adequately represent
the interests of the churches in this establishment clause case.
That contention carries with it an appearance of adversity of
interest that might reasonably lead members of the public to
doubt that the state will be able to defend the statute
vigorously and effectively. That contention therefore confirms
the need to order intervention, so that the churches can directly
assert their arguments in the superior court.
IV. CONCLUSION
Because the churches have an interest that is direct
and substantial, because they may wish to raise an argument no
other party is likely to raise, and because the states interests
are both actually and apparently adverse to the churches
interests, we have REVERSED the superior court orders denying the
three churches motions for intervention as of right under Alaska
Civil Rule 24(a), and have REMANDED. To prevent duplicative
litigation, the superior court may require the churches to align
themselves with each other and submit consolidated briefs to the
extent possible.
In the Supreme Court of the State of Alaska
Anchorage Baptist Temple, et al., )
) Supreme Court No. S-12421
Appellants, )
v. ) Order
)
Keith Coonrod, et al., ) Date of Order: 3/2/07
)
Appellees. ) Trial
Court Case # 3AN-06-08866CI
)
)
Valley Baptist Tabernacle, et al., ) Supreme
Court No. S-12442
)
Appellants, )
v. )
)
Clyde Baxley, et al., )
)
Appellees. ) Trial
Court Case # 3AN-06-08943CI
)
Before: Fabe, Chief Justice, Eastaugh, Bryner, and
Carpeneti, Justices.
[Justice Matthews, not participating.]
Upon consideration of the parties arguments in their briefs
and at oral argument, and because the court considers it
desirable that the parties and the superior court be promptly
informed of the result so that the two consolidated cases can
proceed in the superior court,
IT IS ORDERED:
1. The orders denying the churches motions to intervene as
of right under Alaska Civil Rule 24(a) are Reversed.
2. This court will issue a written opinion at a future
date explaining the reasons for this result.
3. The superior court proceedings may go forward upon
entry of this order, and need not await publication of this
courts opinion.
Entered at the direction of the court.
Clerk of the Appellate Courts
/s/
Peggy Vigoren, Deputy Clerk
_______________________________
1 AS 29.45.030(b)(1), as amended by ch. 44, 1, SLA 2006,
states:
(b) In (a) of this section, property used
exclusively for religious purposes includes
the following property owned by a religious
organization:
(1) the residence of an educator in a
private religious or parochial school or a
bishop, pastor, priest, rabbi, minister, or
religious order of a recognized religious
organization; for purposes of this paragraph,
minister means an individual who is
(A) ordained, commissioned, or licensed as a
minister according to standards of the
religious organization for its ministers; and
(B) employed by the religious organization
to carry out a ministry of that religious
organization . . . .
(Emphasis added to amended text.)
2 Ch. 44, SLA 2006 (stating that sections 1 and 2 become
effective on August 23, 2006).
3 Superior Court Case No. 3AN-06-8866 CI.
4 Superior Court Case No. 3AN-06-8943 CI.
5 The Bible Baptist Church of Fairbanks, Inc., was
initially a party to the lawsuit but subsequently withdrew.
6 Valley Baptist and Hamilton Acres appealed together.
7 Because we conclude that appellants are entitled to
intervene as of right, it is unnecessary to consider their
alternative contention that it was an abuse of discretion to deny
their Rule 24(b) motion for permissive intervention.
8 Alaskans for a Common Language, Inc. v. Kritz, 3 P.3d
906, 91214, 916 (Alaska 2000) (holding that organization that
sponsored English-only initiative was entitled under Rule 24(a)
to intervene in lawsuit challenging initiatives constitutionality
while organization that merely funded pro-initiative advertising
was not).
9 Alaska R. Civ. P. 24(a).
10 Kritz, 3 P.3d at 912.
11 Id. at 911 (citing State v. Weidner, 684 P.2d 103, 113
(Alaska 1984)).
12 Id. at 912 (stating that independent judgment standard
applies because timeliness not raised as issue).
We determine whether a motion to intervene is timely by
applying a four-part test. We consider the length of the delay
before the movant filed, the prejudice to existing parties if the
motion is granted, the prejudice to the proposed intervenors if
the motion is denied, and any idiocratic circumstances that
militate for or against intervention. Scammon Bay Assn, Inc. v.
Ulak, 126 P.3d 138, 143 (Alaska 2005).
Although we are not deciding the timeliness issue here,
the churches filed their motions to intervene both before the
states answer was due and before the state actually answered.
The Coonrod lawsuit was filed on June 12, 2006. Because Alaska
Civil Rule 12(a) gave the state forty days to answer, and because
the fortieth day was July 22, 2006, a Saturday, the states answer
was due Monday, July 24. The churches filed their motions on or
before that date and before the state answered. The United
States Court of Appeals for the Ninth Circuit has held that an
intervention motion filed on or before the date the answer was
filed and before the trial court made any substantive rulings was
timely. Nw. Forest Res. Council v. Glickman, 82 F.3d 825, 837
(9th Cir. 1996).
13 Weidner, 684 P.2d at 113.
14 Although the second part of the test requires us to
consider the proposed intervenors asserted interests, when
discussing their arguments we do not mean to imply that any
particular contention is or may be meritorious. We consider here
only the issue of intervention as of right.
15 Laborers Local No. 942 v. Lampkin, 956 P.2d 422, 427,
43839 (Alaska 1998).
16 Id. at 438.
17 McCormick v. Smith, 793 P.2d 1042, 1043 (Alaska 1990).
18 Id. at 1044 (citing Alaska Const. art. XI, 8).
19 Id.
20 Alaskans for a Common Language, Inc. v. Kritz, 3 P.3d
906, 910 (Alaska 2000).
21 Id. at 91214.
22 Stanek v. Kenai Peninsula Borough, 81 P.3d 268, 27072
(Alaska 2003) (discussing taxpayers equal protection challenge to
tax exemptions).
23 Weidner, 684 P.2d at 113.
24 Kritz, 3 P.3d at 913.
25 Id.
26 Id.
27 Id. at 914.
28 Moreover, Union Oil Co. of Calif. v. State, 804 P.2d
62, 65 (Alaska 1990), seems to establish a preference for the
states interpretation of an exemption statute, and only mentions
the duty to equalize the tax burden in passing. Here, there is
no question of a broader or narrower interpretation the only
question is whether the statute is constitutional on its face.
29 See 7C Charles Alan Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice and Procedure 1909 (2d ed. 1986) (A mere
difference of opinion concerning the tactics with which
litigation should be handled does not make inadequate the
representation of those whose interests are identical with that
of an existing party or who are formally represented in the
lawsuit.).
30 Cf. Lemon v. Kurtzman, 403 U.S. 602, 61213 (1971)
(holding statute must have neutral purpose, must not have
principal or primary effect of advancing or inhibiting religion,
and must not foster excessive government entanglement with
religion); Bonjour v. Bonjour, 592 P.2d 1233, 1242 (Alaska 1979)
(holding that statute permitting court to consider childs
religious needs when awarding custody is constitutional because
it satisfies Lemon test).
31 Rosenberger v. Rector & Visitors of Univ. of Va., 515
U.S. 819, 839 (1995) (citations omitted) (holding state
university could not deny funding to religious publication when
university funded non-religious publications).
32 AS 44.23.020(b)(3).
33 Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274,
281 (5th Cir. 1996) (holding legal organization representing
students not entitled to intervene in action challenging
constitutionality of school prayer statute because attorney
general could adequately defend statute).
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