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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Law Project for Psychiatric Rights, Inc. v. State (10/1/2010) sp-6518

Law Project for Psychiatric Rights, Inc. v. State (10/1/2010) sp-6518

        Notice:  This opinion is subject to correction before publication in the PACIFIC REPORTER. 
        Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 
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LAW PROJECT FOR PSYCHIATRIC                        ) 
RIGHTS, INC., an Alaskan non-profit                ) 
corporation,                                       ) 
                                                   )    Supreme Court No. S-13558 
                        Appellant,                 ) 
                                                   )    Superior Court No. 3AN-08-10115 CI 
        v.                                         ) 
                                                   )   O P I N I O N 
STATE OF ALASKA, et al.,                           ) 
                                                   )   No. 6518 - October 1, 2010 
                        Appellees.                 ) 

                Appeal from the Superior Court of the State of Alaska, Third 
                Judicial District, Anchorage, Jack W. Smith, Judge. 

                Appearances:          James    B.   Gottstein,    Law     Project    for 
                Psychiatric Rights, Inc., Anchorage, for Appellant.  Michael 
                G.  Hotchkin,   Assistant   Attorney   General,   Anchorage,   and 
                Daniel S. Sullivan, Attorney General, Juneau, for Appellees. 

                Before:     Fabe,   Winfree,   Christen,   and   Stowers,   Justices. 
                [Carpeneti, Chief Justice, not participating.] 

                WINFREE, Justice. 


                A non-profit public interest law firm filed suit in its own name against the 

State of Alaska seeking to establish constitutional standards that must be met before 

compelling minors to take psychotropic medications.  The superior court granted a stay 

of discovery pending the State's motion to dismiss for lack of standing.                The superior 

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court then dismissed the complaint for lack of standing and later awarded the State nearly 

$4,000 in attorney's fees under Alaska Rule of Civil Procedure 82(b)(2).                  Because the 

superior court did not err in dismissing the lawsuit for lack of standing and did not 

otherwise abuse its discretion, we affirm its decisions. 


                Law Project for Psychiatric Rights, Inc. (LPPR) is a non-profit Alaska 

corporation operating as a public interest law firm.              LPPR's mission is "to mount a 

strategic litigation campaign against forced psychiatric drugging and electroshock." 

                In September 2008 LPPR initiated suit against the State and seven State 

employees in their official capacities (collectively "the State"), seeking declaratory and 

injunctive      relief  regarding     children's     rights   in   compelled      psychotropic      drug 

administration.      LPPR   claimed   administering   psychotropic   medication   to   children 

without   their   consent   constitutes   involuntary   medicating   and   "infringes   upon   [the 

children's] fundamental constitutional rights." LPPR sought a declaratory judgment that 

"children . . . have the right not to be administered psychotropic drugs unless and until" 

certain   standards   are   met.  LPPR   also  sought   to   permanently   enjoin   the   State   from 

"authorizing or paying for" psychotropic drug administration that fails to follow the 

proposed standards. 

                After filing an answer the State moved contemporaneously for judgment on 

the pleadings and to stay discovery.   The State argued  that LPPR's complaint should be 

dismissed   for   lack   of   standing   and   observed   that   LPPR   failed   to   "identify   a   single 

individual who has been harmed by the alleged violations."  The State argued a stay of 

discovery   was   particularly   appropriate   pending   the   dispositive   motion   because   the 

"motion raise[d] pure questions of law which discovery [was] not needed to resolve." 

                                                  -2-                                             6518

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                LPPR opposed both motions.             As to standing, LPPR argued it satisfied 

citizen-taxpayer standing.         Although LPPR conceded it did not assert interest-injury 

standing to sue either on its own behalf or on behalf of any individual member of the 

class described in its complaint, it argued the complaint could be amended to include a 

named plaintiff.  LPPR explained it was a proper litigant because affected children and 

parents were unlikely to file suit, due in part to lack of resources. LPPR also claimed that 

an individual litigant might be unable to obtain injunctive relief.  As to the discovery 

stay, LPPR argued the motion for judgment on the pleadings was "not likely to dispose 

of the entire case" and therefore discovery should proceed. LPPR outlined two discovery 

objectives, neither of which suggested LPPR required discovery to address the State's 

standing argument. 

                The superior court granted both of the State's motions.                 First the court 

stayed discovery pending its decision on the motion for judgment on the pleadings.  The 

court   later   found   LPPR   had   not   asserted   interest-injury   standing   and   had   failed   to 

establish citizen-taxpayer standing.          The court found that, despite raising questions of 

public significance, LPPR was not an appropriate litigant to bring the action and stated 

that "the affected children, their parents or guardians[,] or even the state would make a 

more appropriate plaintiff."  The court further concluded that LPPR "failed to establish 

any parent or guardian with a legitimate grievance on behalf of their juvenile or child has 

declined to sue" or that "any legitimate claim has gone unpursued."                   Concluding that 

LPPR lacked standing to litigate the issues, the court dismissed the complaint. 
                The   State   then   moved   for   partial   attorney's   fees   under   Rule   82(b)(2).1 

        1       Rule 82(b)(2) provides in pertinent part:  "In cases in which the prevailing 

party recovers no money judgment, the court . . . shall award the prevailing party in a 
case resolved without trial 20 percent of its actual attorney's fees which were necessarily 

                                                   -3-                                                6518 

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LPPR opposed the motion, citing Rule 82(b)(3)(I)2 and asserting that "[a]ny award is 

likely to deter litigants from the voluntary use of the courts."               The court granted the 

State's motion and, adhering to Rule 82(b)(2), awarded the State $3,876 in attorney's 


                LPPR appeals the superior court's decisions to dismiss for lack of standing, 

stay discovery, and award the State attorney's fees. 


                We review de novo whether a party has standing to sue, as the issue raises 
a question of law.3    We review a superior court's ruling on a motion to stay discovery for 

abuse of discretion.4      Abuse of discretion occurs "when we are left with a definite and 

firm conviction after reviewing the whole record that the [superior] court erred in its 

          5                                                                          6 
ruling."   We also review attorney's fees awards for abuse of discretion.   We will reverse 

        1       (...continued) 


        2       Rule 82(b)(3)(I) provides in pertinent part: 

                The court may vary an attorney's fee award calculated under 
                 subparagraph   (b)(1)   or   (2)   of   this   rule   if   .   .   .   the   court 
                determines a variation is warranted [considering] the extent 
                to   which    a  given    fee  award    may    be  so   onerous    to  the 
                non-prevailing   party   that   it   would   deter   similarly   situated 
                litigants from the voluntary use of the courts. 

        3       Keller v. French, 205 P.3d 299, 302 (Alaska 2009) (citing St. Paul Church, 

Inc. v. Bd. of Trs. of the Alaska Missionary Conference of the United Methodist Church, 
Inc., 145 P.3d 541, 549-50 (Alaska 2006)). 

        4       Armstrong v. Tanaka, 228 P.3d 79, 82 (Alaska 2010) (citing Stone v. Int'l 

Marine Carriers, Inc., 918 P.2d 551, 554 (Alaska 1996)). 

        5        Christensen v. NCH Corp., 956 P.2d 468, 473 (Alaska 1998) (citing Stone, 


                                                   -4-                                                6518 

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an attorney's fees award only if it is "arbitrary, capricious, manifestly unreasonable, or 
stems from an improper motive."7 


        A.      Standing 

                "Standing is a ‘rule of judicial self-restraint based on the principle that 
courts   should   not   resolve   abstract   questions   or   issue   advisory   opinions.'   "8 The 

fundamental question raised by an objection to standing is whether the litigant is a proper 
party to seek adjudication of a particular issue.9        Although we favor access to judicial 

forums, a basic requirement of standing is adversity of interests.10   We recognize two 

general types of standing sufficient to meet the adversity requirement ? interest-injury 
standing and citizen-taxpayer standing.11  For interest-injury standing we also recognize 

third-party standing, which allows a litigant to raise the rights of a third person in special 

        5       (...continued) 

918 P.2d at 554). 

        6      Marsingill v. O'Malley, 128 P.3d 151, 156 (Alaska 2006) (citingAlderman 

v. Iditarod Props., Inc., 104 P.3d 136, 140 (Alaska 2004)). 

        7      Id. (quoting Nichols v. State Farm Fire & Cas. Co., 6 P.3d 300, 303 (Alaska 


        8       Keller, 205 P.3d at 302 (quoting Ruckle v. Anchorage Sch. Dist., 85 P.3d 

1030, 1034 (Alaska 2004)). 

        9       Trs. for Alaska v. State, 736 P.2d 324, 327 (Alaska 1987) (quoting Moore 

v. State, 553 P.2d 8, 23 n.25 (Alaska 1976)). 

        10     Id. (citing Moore, 553 P.2d at 23 & n.25). 

        11     Id. 

                                                 -5-                                            6518

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circumstances.12      To establish citizen-taxpayer standing, a litigant must show that the 

issues   raised   are   of  public   significance   and   that   it   is   an   appropriate   litigant   to   seek 
adjudication of those issues.13 

                 At oral argument before us, LPPR conceded that the constitutional right it 

seeks   to   establish   is   an   individual   right.    But   LPPR   nonetheless   maintained   that 

compelled psychotropic medicating is a matter of great social consequence and therefore 

a matter of public significance for purposes of citizen-taxpayer standing.                    In Keller v. 

French the plaintiffs attempted to rely on citizen-taxpayer standing to assert the personal 

constitutional      rights   of  a  small   number    of   third   parties   involved    in  a  legislative 
investigation.14     There, however, "[w]e decline[d] to allow the use of citizen-taxpayer 

standing as a substitute for third-party standing."15           Keller is indistinguishable from the 

situation here ? LPPR seeks to establish a personal constitutional right on behalf of an 

unknown number of minors through citizen-taxpayer standing.                        But LPPR offers no 

persuasive   argument   to   permit   substituting   citizen-taxpayer   standing   for   third-party 

         12      Foster v. State, 752 P.2d 459, 466 (Alaska 1988) (Moore, J., concurring) 

("Under the interest-injury approach, a litigant can have standing either to protect his 
own   rights,   or,   in   rare   cases,   to   protect  the   rights   of   third   parties   by   acting   in   a 
representative capacity.") (citing Wagstaff v. Super. Ct., Fam. Ct. Div., 535 P.2d 1220, 
1225-26 (Alaska 1975));see also, e.g., State v. Planned Parenthood of Alaska, 35 P.3d 
30, 34 (Alaska 2001) (citing among others Singleton v. Wulff, 428 U.S. 106, 117 (1976)) 
(stating "physicians have standing to challenge abortion laws on behalf of prospective 
patients"); Bonjour v. Bonjour, 592 P.2d 1233, 1241 n.15 (Alaska 1979) (citingAbington 
Sch. Dist. v. Schempp, 374 U.S. 203, 224 n.9 (1963)) (concluding parent had standing to 
assert child's constitutional rights under the Establishment Clause). 

         13      Keller, 205 P.3d at 302 (citing Trs. for Alaska, 736 P.2d at 329). 

         14      See id. at 301-04 (concerning protections during legislative investigations 

under the fair and just treatment clause of the Alaska Constitution). 

         15      Id. at 304. 

                                                    -6-                                               6518

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standing in this case. 

                 LPPR fails to satisfy the elements of citizen-taxpayer standing in any event. 

As the State contends, even assuming the issues raised are of public significance for 
citizen-taxpayer   standing,16      an   individual   (or   group)   directly   affected   by   the   State's 

administration of psychotropic drugs to minors would be the appropriate litigant.  And 

despite   LPPR's   argument   to   the   contrary,   the   systemic   relief   LPPR   seeks   could   be 
obtained by an individual litigant through the application of stare decisis17 or by a class 

action seeking broad declaratory and injunctive relief.18              As we made clear in Keller, 

"[t]hat individuals who are more directly affected have chosen not to sue despite their 
ability to do so does not confer citizen-taxpayer standing on an inappropriate plaintiff."19 

                 LPPR speculates that potential litigants are limited in their ability to sue to 

establish     and   protect    their   individual    constitutional     rights   regarding     compelled 

         16     But cf. id. at 305 (Winfree, J., concurring) (commenting that violation of an 

individual's personal constitutional rights likely does not constitute "public significance" 
justifying citizen-taxpayer standing). 

         17      See Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 373, 376-78 

(Alaska 2007) (establishing, upon one patient's challenge, standards for involuntary 
commitment for a mental disorder); Myers v. Alaska Psychiatric Inst., 138 P.3d 238, 239 
(Alaska 2006) (establishing, upon one patient's challenge, standards treatment facilities 
must follow for administering psychotropic medication to patients in non-emergency 

         18      See Smith v. Cleary, 24 P.3d 1245, 1247, 1251-52 (Alaska 2001) (observing 

class consisting of state prisoners moved to enjoin State from transferring prisoners to 
out-of-state jails but noting class could have requested a broad declaratory judgment). 

         19     Keller, 205 P.3d at 303.   Although we conclude those directly affected by 

the State's administration of psychotropic drugs to minors are appropriate litigants, we 
express     no   opinion    on  the   superior   court's    comment     that   the  State   could   be  an 
appropriate litigant. 

                                                    -7-                                             6518

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psychotropic medication.  LPPR suggests, without providing any supporting evidence, 

that people involved in protective proceedings fear retaliation by the State if they contest 

compelled psychotropic medication. Yet it is in those very proceedings where protected 

persons have access to counsel to represent their interests and protect against potential 
retaliation.20  LPPR also suggests that individuals are reluctant to be involved in lawsuits 

out   of   fear   of   an   adverse   attorney's   fees   award. Yet   the   legislature   has   expressly 

provided protection against adverse attorney's fees awards for those who unsuccessfully 
assert non-frivolous constitutional claims without an economic incentive.21 

                We therefore affirm the superior court's dismissal of LPPR's suit for lack 

of standing. 

        B.      Stay Of Discovery 

                LPPR argues it was an abuse of discretion for the superior court to stay 

discovery because LPPR required discovery to defend against the State's motion for 

judgment on the pleadings.  But LPPR raises this argument for the first time on appeal. 

LPPR's opposition to the State's motion to stay discovery did not contain an explicit 

argument that LPPR required discovery to establish citizen-taxpayer standing.  LPPR's 

only mention of standing in its opposition to stay discovery was an assertion that the 

issue was "unmeritorious and [could] be addressed by naming additional plaintiffs." And 

although   LPPR's   opposition   to   the   State's   motion   for   judgment   on   the   pleadings 

        20      See    AS    47.30.725(d)     (providing    the   respondent     with   a  right  to  be 

represented by an attorney before involuntary admission for mental health treatment); see 
also Wetherhorn, 156 P.3d at 383 (stating the Alaska Constitution's Due Process Clause 
guarantees a person the right to counsel in involuntary commitment and administration 
of psychotropic medication proceedings).  Potential litigants may be indigent or unable 
to afford representation, as LPPR suggests, but the right to court-appointed counsel 
disposes of LPPR's suggestion that this prevents them bringing suit. 

        21      See AS 09.60.010(c)(2). 

                                                   -8-                                            6518

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

mentioned that discovery would be used to reveal the State's purported coercion of 

parents, the motion never explicitly stated discovery was necessary to satisfy citizen- 

taxpayer standing.        The issue  is therefore not properly before us and we decline to 
address it.22 

        C.      Attorney's Fees Award 

                The   State   requested   and   received   an   attorney's   fees   award   under   Rule 

82(b)(2). LPPR argues that it was an abuse of discretion for the superior court not to give 

weight to Rule 82(b)(3)(I), which allows the court to vary a Rule 82(b)(2) award if the 

presumptive award "may be so onerous to the non-prevailing party that it would deter 
similarly situated litigants from the voluntary use of the courts."23 

                We first note that LPPR did not explicitly argue in the superior court and 

does not argue on appeal that it is protected from an adverse attorney's fees award under 

AS 09.60.010(c)(2), although its lawsuit appears to have "concern[ed] the establishment, 
protection, or enforcement of a [constitutional] right."24  We therefore express no opinion 

on the application of AS 09.60.010(c)(2) to this case.             Instead we follow the parties' 

convention in analyzing the superior court's attorney's fees award under Rule 82. 

        22      See Vivian P. v. State, Dep't of Health & Soc. Servs., Div. of Family & 

Youth Servs., 78 P.3d 703, 709 (Alaska 2003) ("We will not address an issue on appeal 
that was not raised at trial." (citing Brandon v. Corr. Corp. of Am., 28 P.3d 269, 280 
(Alaska 2001))).   We apply our independent judgment to determine if an issue has been 
waived. Lauth v. State, 12 P.3d 181, 184 (Alaska 2000) (citing Wilkerson v. State, Dep't 
of Health & Soc. Servs., Div. of Family & Youth Servs., 993 P.2d 1018, 1021 (Alaska 

        23      Alaska R. Civ. P. 82(b)(3)(I). 

        24      AS 09.60.010(c)(2). 

                                                  -9-                                            6518

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                The presumptive Rule 82(b)(2) award here is less than $4,000.25                LPPR 

argues that the adverse awardwill deter similarly situated litigants from bringing suit, but 

we have already noted that statutory protection against adverse attorney's fees awards 
exists for certain non-prevailing parties raising constitutional claims.26            Based on the 

record, we conclude that it was not abuse of discretion for the superior court to award the 

State partial attorney's fees under Rule 82(b)(2). 


                We AFFIRM the superior court's decisions. 

        25      Because   the   superior   court's   attorney's   fees   award   "accords   with   the 

presumptive percentages in Rule 82(b)(2) . . . the court need not offer an explanation of 
its award."  Marsingill, 128 P.3d at 163 (citing Nichols, 6 P.3d at 305). 

        26      See note 21, above and accompanying text. 

                                                 -10-                                             6518 
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