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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alsworth v. Seybert (4/25/2014) sp-6900

Alsworth v. Seybert (4/25/2014) sp-6900

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                      

         corrections@appellate.courts.state.ak.us.  



                   THE SUPREME COURT OF THE STATE OF ALASKA  



GLEN ALSWORTH, SR. and                                     )  

LORENE "SUE" ANELON,                                       )    Supreme Court No. S-14978  

                                                           )  

                            Petitioners,                   )    Superior Court No. 3DI-12-00059 CI  

                                                           )  

         v.                                                )    O P I N I O N  

                                                           )  

VICTOR SEYBERT, JOHN HOLMAN,   )                                No. 6900 - April 25, 2014  

KIMBERLY WILLIAMS, GEORGE G .                              )  

JACKO, and RICK DELKITTIE, SR.,                            )  

                                                           )  

                            Respondents.                   )  

                                                           )  



                  Petition for Review from the Superior Court of the State of  

                               

                  Alaska, Third Judicial District, Dillingham, Steve W. Cole,  

                  Judge.  



                  Appearances:  Rebecca J. Hozubin and Michael A. Moberly,  

                                                    

                  Law   Office   of   Hozubin   &              Moberly,   Anchorage,             for  

                                                                              

                  Petitioners.    Timothy  A.  McKeever  and  Scott  Kendall,  

                                                         

                  Holmes        Weddle         &     Barcott,      P.C.,     Anchorage,          for  

                                                                            

                  Respondents.  



                  Before:      Winfree,       Stowers,       and     Bolger,      Justices,     and  

                  Matthews  and  Eastaugh,  Senior  Justices.*    [Fabe,  Chief  

                  Justice, and Maassen, Justice, not participating.]  



                  WINFREE, Justice.  



         *         Sitting by assignment made under article IV, section 11 of the Alaska  

Constitution and Alaska Administrative Rule 23(a).  


----------------------- Page 2-----------------------

I.        INTRODUCTION  



                   A group of citizens sued two borough assembly members, alleging various  



violations of borough and state conflict of interest laws and the common law conflict of  



                                                                                         

interest  doctrine.    After  the  borough  took  official  action  facilitating  the  assembly  



                                                             

members' defense, the citizens moved to enjoin the assembly members from using their  



                                              

official positions to defend the lawsuit or pursue personal financial gain.  The superior  



                                                                                                 

court  granted  a  preliminary  injunction  under  the  balance  of  hardships  standard,  



concluding that the citizens faced the possibility of irreparable harm if the injunction  



were  not  granted  and  that  the  assembly  members  were  adequately  protected  by  the  



                                                                      

injunction.  The injunction barred the assembly members from taking various actions in  



their official capacities, including speaking about a local mining project.  



                                                                                                                       

                   The assembly members filed a petition for review, which we granted.  They  



argue,  inter  alia,  that  the  superior  court  applied  the  wrong  preliminary  injunction  



standard and that the injunction violates their free speech rights.  We agree.  The court  



                                                  

should have applied the probable success on the merits standard because the injunction  



does  not  adequately  protect  the  assembly  members,  and  the  injunction  imposes  an  



                                                                                   

unconstitutional prior restraint on speech.  Shortly after oral argument, we vacated the  



                                                                                                           

portion of the preliminary injunction barring the assembly members from taking certain  



                                                                          

official acts or speaking about the mining project.  We now vacate the injunction in full.  



II.       FACTS AND PROCEEDINGS  

          A.       Facts1  



                   Petitioner Glen Alsworth, Sr. is the Lake and Peninsula Borough (Borough)  



          1  

                                                                

                   We base our fact recitation on the superior court's factual findings, in turn  

based  primarily  on  unauthenticated  documents  attached  to  Respondents'  unverified  

superior court complaint.  Because no one contests these facts on appeal, we assume  

                                                                                                               

them to be accurate.  



                                                             -2-                                                          6900  


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

                                  

Mayor and, as such, is a voting member of the Borough Assembly.  Alsworth owns and  



                                      

operates Lake Clark Air, an air taxi business serving the Bristol Bay region.  Lake Clark  



Air has received considerable business from the Borough, the Borough's School District  



                                                                         2 

                                                                                         

(School District), and Pebble Limited Partnership;  the latter two entities are Lake Clark 



                                                                                              

Air's largest revenue sources. Alsworth also owns and operates The Farm Lodge, which  



has received income from the School District and Pebble Limited Partnership.  



                    Petitioner  Lorene  "Sue"  Anelon  was,  during  all  times  relevant  to  the  



                                                              

complaint in this case, a voting member of the Borough Assembly.  Anelon lost her  



                                                              

reelection bid in November 2012 and no longer is on the Assembly.  Anelon has been  



employed   by   Iliamna   Development   Corporation   since   at   least   2006.      Iliamna  



Development Corporation's primary client is Pebble Limited Partnership.  



                                               

                    The Respondents are registered voters in the Borough.  Respondent Victor  



                                                                      

Seybert is also a voting member of the Borough Assembly.  We refer to the Respondents  



collectively as "Seybert."  



                                                                       

                    The Borough Assembly approves the Borough's and the School District's  



annual  budgets.    The  Assembly,  during  Alsworth's  and  Anelon's  tenures,  enacted  



                                                                                                  

resolutions supporting Pebble Mine's development and subleasing Borough property to  



                                       

Northern Dynasty Mines, the parent company of Pebble Limited Partnership.  On at least  



one  occasion, Alsworth gave a speech, ostensibly in his official capacity as Mayor,  



advocating for Pebble Mine.  



          B.        Proceedings  



                    Seybert filed the present lawsuit against Alsworth and Anelon in May 2012.  



In  an  unverified  complaint,  to  which  several  hundred  pages  of  unauthenticated  



          2  

                                                                                           

                    We refer to Pebble Limited Partnership's current mineral exploration in the  

Borough as Pebble Mine.  



                                                             -3-                                                           6900  


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

documents  were  attached,  Seybert  alleged  Alsworth  and  Anelon:    (1)  violated  



                     3                                                                                 4 

                                                                                           

AS 39.50.090,  Lake and Peninsula Borough (L&PB) Code  2.20.090,  L&PB Charter 



            5                                                                      6 

                                                                                      

 15.01,  and the common law conflict of interest doctrine  by participating in Assembly 



                                                                              

decisions from which they benefit directly and using their official positions to promote  



          3        AS 39.50.090(a) provides in relevant part:  



                             A public official may not use the official position or  

                    office for the primary purpose of obtaining personal financial  

                    gain or financial gain for a spouse, dependent child, mother,  

                    father, or business with which the official is associated or in  

                                                

                   which the official owns stock.  



                   AS 39.50.100(a) provides a private right of action to enforce the conflict  

of interest statute:  "A qualified Alaska voter may bring a civil action to enforce any of  

                                                                                             

the sections of this chapter."  



          4        L&PB Code  2.20.090 provides, in relevant part:  



                                               

                             A member of the assembly shall declare a substantial  

                                                                                             

                    financial interest he or she has in an official action and ask to  

                   be excused from a vote on the matter.  The presiding officer  

                    shall  rule  on  the  request  for  abstention  (excusal).                       The  

                    decision  of  the  presiding  officer  on  the  request  may  be  

                                                                                               

                    overridden by the majority vote of the assembly.  



          5        L&PB Charter  15.01(A) provides, in relevant part:  "Prohibition.  No  



elected  official  may  vote  on  any  question  on  which  he  has  a  substantial  financial  

interest."  



          6        See Carney v. State Bd. of Fisheries, 785 P.2d 544, 547-49 (Alaska 1990)  



                                               

(applying common law conflict of interest doctrine from Marsh v. Town of Hanover , 313  

                                                                                                      

A.2d 411, 414 (N.H. 1973)).  Unlike AS 39.50.090, which focuses on a public official's  

                                                   

intent, a common law conflict of interest exists "where a potential exists for a public  

                

officer  to  influence  the  outcome  of  a  matter  in  which  he  has  a  direct  personal  and  

                                                                      

pecuniary interest," regardless of the official's intent.  Marsh , 313 A.2d at 414; accord  

Carney, 785 P.2d at 548.  



                                                             -4-                                                       6900
  


----------------------- Page 5-----------------------

                                                                                7 

                                                                                                                   

Pebble Mine; and (2) violated AS 39.50.020 and .030  by failing to properly report gifts 



and income.  Seybert sought various forms of injunctive and legal relief.  The Borough's  



attorney entered an appearance and filed an answer for Alsworth and Anelon in early  



June.  



                                                                              

                    Sometime after the lawsuit was filed, an unsigned "open letter" on official  



Borough letterhead was mailed to Borough residents refuting the claims against Alsworth  



and Anelon.  The Borough Assembly did not authorize the letter.  Shortly thereafter, the  



                                                                                        

Borough Assembly announced it would hold a June 12 vote on Resolution 12-09 to  



                                                                                                       

undertake Alsworth and Anelon's legal defense.  The Resolution set forth the Borough's  



                                                          

rationale in providing the defense: (1) "the Borough [did] not believe that the allegations  



                                                                                                 

set out in the Complaint [were] true"; (2) the Alaska Municipal League Joint Insurance  



                                                                                                                  

Association (AMLJIA) had denied Alsworth and Anelon coverage for the lawsuit; and  



                                                         

(3) the financial burden "cases of this kind" impose on assembly members "is so onerous  



and burdensome that it is highly likely that the prospect of having to defend themselves  



                                                             

against these kinds of claims will deter qualified, competent persons [from] serving as  



Borough Assembly members."  



                                                                           

                    On June 11 Seybert filed a motion for a temporary restraining order and  



preliminary injunction, requesting expedited consideration of the motion in advance of  



                                                                                                              

the Assembly vote on the Resolution.  The motion recited the complaint's allegations and  



                                                                                         

cited the open letter, use of the Borough attorney, and the upcoming Assembly vote on  



                                                     

Resolution 12-09 as evidence that Alsworth and Anelon were using Borough resources  



                                                                            

for  personal  gain.    Seybert  asked  the  court  to  enjoin  Alsworth  and  Anelon  from:  



                                                                                            

(1) authorizing, approving, accepting, or using any Borough resources to defend against  



          7         AS 39.50.020(a) provides, in relevant part:  "A public official . . . shall file  



                                                                                                  

a statement giving income sources and business interests, under oath and on penalty of  

perjury . . . ."  AS 39.50.030 specifies the statement's required contents.  



                                                               -5-                                                             6900  


----------------------- Page 6-----------------------

                                                                                                                           

the current lawsuit or to investigate, attack, or question the allegations or plaintiffs in the  



lawsuit; (2) speaking in favor of Pebble Mine while acting in an official capacity, or  



                                                                                                          

taking any official action against those who oppose Pebble Mine; (3) voting or failing  



to declare a conflict of interest when any matters come before the Borough Assembly  



                                  

related to the lawsuit; and (4) voting, taking official action, or failing to declare a conflict  



of interest on matters in which Alsworth or Anelon has a significant financial interest.  



                                                  

                    The superior court did not rule on the motion before the Assembly voted  



                                                                                     

to approve Resolution 12-09 on June 12.  Seybert filed a supplemental memorandum on  



                                                                      

June 13 expressing concern that the "invalid" Resolution would facilitate Alsworth and  



                                                            8  

                                                               Alsworth and Anelon, proceeding with new  

Anelon's misuse of Borough resources. 



counsel  retained  by  the  Borough,  opposed  the  temporary  restraining  order  and  



                                                      

preliminary injunction on June 20.  They argued:  (1) the claim was not properly before  



the  court  because  the  Borough  had  not  been  joined  under  Alaska  Civil  Rule  19(a);  



(2) Seybert had not complied with Rule 65's requirement that an applicant file a verified  



                                                                                           

complaint or affidavit proving specific facts in support of a motion for a temporary  



                                                                                                

restraining order or preliminary injunction; (3) Seybert was not likely to succeed on the  



                                           

merits; (4) Seybert had not demonstrated irreparable injury; (5) Seybert unjustifiedly  



                                                                                    

delayed seeking injunctive relief; and (6) the balance  of equities and public interest  



favored abstention.  



          8         Seybert,  Alsworth,  and  Anelon  recused  themselves  from  voting  on  



Resolution 12-09, leaving only four of the seven Assembly members to vote on the  

                                          

Resolution.  Three members voted in favor of the Resolution and one member voted  

against it.  Seybert alleged the Resolution was invalid because state and Borough laws  

                                                                                                

provide that actions of a governing body may be adopted only by "a majority of the total  

                                   

membership of the body"; a majority of the seven-member Assembly requires at least  

                     

four affirmative votes, and the Resolution garnered only three.  AS 29.20.160(d); L&PB  

                                   

Charter  2.08(E); L&PB Code  2.08.010(E).  



                                                               -6-                                                         6900
  


----------------------- Page 7-----------------------

                                                               

                    AMLJIA shortly thereafter agreed to fund Alsworth and Anelon's defense,  



                                                                          

despite continuing to contend that "there [was] no coverage with respect to any of the  



                                                     

claims  asserted."    Alsworth  and  Anelon  asked  Seybert  to  dismiss  his  motion  for  a  



                                                  

temporary restraining order and preliminary injunction because the Borough no longer  



                                                   

would  be funding their defense, but Seybert refused.  The superior court held a hearing  



                                                                                                              

on Seybert's motion on August 20. During arguments, Seybert's counsel announced that  



                                                

Respondent Rick Delkittie, Sr. recently had received an email supporting Alsworth that  



had been sent from one of Anelon's relatives to an anonymous email list.  Alsworth and  



Anelon's counsel did not address the email claim.  



                    Following the hearing, the superior court issued a written order granting the  



motion for a preliminary injunction.  The court explained that, although Seybert's motion  



                                                                            

"lacks a 'verified complaint' or affidavit proving specific facts," Rule 65 requires such  



evidence only for temporary restraining orders, and the court could consider "hundreds  



of  pages  of  exhibits  that  were  filed  with  the  Complaint"  in  granting  a  preliminary  



                 9  

                                                                                        

injunction.   The court specifically found Alsworth had a significant financial interest in  



          9         Rule 65(b) allows a court to grant a temporary restraining order without  



notice to the adverse party "only if (1) it clearly appears from specific facts shown by  

                                                                

affidavit or by  the verified complaint that immediate and irreparable injury, loss, or  

                         

damage will result to the applicant before the adverse party or that party's attorney can  

                                                                                                       

be  heard  in  opposition,"  and  (2)  the  applicant  explains  why  notice  should  not  be  

required.        Rule  65(a)  governs  preliminary  injunctions  and  makes  no  reference  to  

                  

affidavits or verified complaints.  Our evidentiary standard at the preliminary injunction  

stage remains an open question, and we decline to determine that standard in this case.  

                                                                                                     

See,  e.g.,  Acevedo  v.  Burley ,  994  P.2d  389,  393-94  (Alaska  1999)  (Eastaugh,  J.  

dissenting) (asserting motion lacking "any affidavit or equivalent document (verified  

motion  or  memorandum)"  was  insufficient  to  "establish  any  facts  that  would  have  

                                                                          

entitled [plaintiff] to an injunction"); State v. Kluti Kaah Native Vill. of Copper Ctr., 831  

                                                                                      

P.2d 1270, 1273 (Alaska 1992) (noting "single affidavit containing the obviously self- 

                                                                                                         

interested  statements  of  a  single  [plaintiff]  .  .  .  cannot  establish  with  any  genuine  

                                                                                                                (continued...)  



                                                                -7-                                                         6900
  


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

the  Borough's  and  School  District's  transportation  budgets,  and  that  Alsworth  and  



                                                                                                                                                          

Anelon had significant financial interests in advancing Pebble Mine's development.  The  



                                       

court also found that Resolution 12-09 "was not lawfully enacted" and that, although the  



                              

court could not bind the Borough, "it has the authority to enjoin both defendants from  



                                                     

accepting Borough funds."  It concluded that "[a]ny promise or transmittal of Borough  



funds made for the purpose of convincing [AMLJIA] to reverse its coverage decision  



                                                                                                                                           

regarding this proceeding . . . is invalid and unlawful," and Borough funds could not be  



                                                                                                                                    

transmitted to AMLJIA for the purpose of securing AMLJIA's coverage of Alsworth and  



Anelon.  



                                                                                                                       

                         The  superior  court  then  applied  the  balance  of  hardships  standard  in  



                                           10  

                                                                                                                                              

granting the injunction.                       The court identified five irreparable harms Seybert would face  



                                                           

absent an injunction: (1) use of Borough money to fund Alsworth and Anelon's defense  



under  Resolution  12-09;  (2)  risk  that  AMLJIA's  coverage  would  not  preclude  



expenditure  of  Borough  funds  under  Resolution  12-09;  (3)  unauthorized  use  of  the  



             9           (...continued)  



certainty"  that  plaintiffs  would  suffer  irreparable  harm).    But  see  Univ.  of  Texas  v.  

                     

Camenisch,  451  U.S.  390,  395  (1981)  ("The  purpose  of  a  preliminary  injunction  is  

merely to preserve the relative positions of the parties until a trial on the merits can be  

                                                                                                      

held.  Given this limited purpose, and given the haste that is often necessary if those  

                                                                                             

positions are to be preserved, a preliminary injunction is customarily granted on the basis  

                                                                                                                                                  

of procedures that are less formal and evidence that is less complete than in a trial on the  

merits."); Michael J. Lichtenstein, Settling the Law in the Circuits:  Presenting Hearsay  

Evidence in a Preliminary Injunction Hearing , 29 AM .   J.   TRIAL  ADVOC . 415 (2005)  

(explaining  several  circuits  allow  use  of  inadmissible  hearsay  evidence  to  support  

preliminary injunction motions).  



             10          See State, Div. of Elections v. Metcalfe                                , 110 P.3d 976, 978 (Alaska 2005)     



(explaining balance of hardships standard is applied only when plaintiff faces danger of     

irreparable harm, opposing party is adequately protected, and plaintiff raises serious and   

substantial questions going to the merits of the case).  



                                                                              -8-                                                                      6900
  


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

Borough's letterhead to defend the lawsuit and attack the plaintiffs; (4) unauthorized use  

                                                                                                   



of  the  Borough's  address  and  email  lists  to  defend  the  lawsuit  and  attack  the  

                                                                         



plaintiffs; and (5) Alsworth's and Anelon's potential failures to fully and timely disclose  

                                                                              



their incomes in their financial disclosures.  The court also found Alsworth and Anelon  

                                                                                 



would  be  adequately  protected  because  the  injunction  would  only  require  them  "to  



comply  with  the  law."    It  thus  concluded  that  the  balance  of  hardships  "weigh[ed]  

                                                                  



heavily in favor of granting plaintiffs' requested preliminary injunction."  



                    The preliminary injunction imposed ten orders:  



                              1.       Based  on  the  above  Findings  of  Fact  and  

                    Conclusions of Law, the plaintiffs' Motion for a Preliminary  

                                                    

                    Injunction is granted, and defendants' [sic] Glen Alsworth Sr.  

                                                                                   

                    and Lorene "Sue" Anelon are ordered to immediately cease  

                    and desist from any and all uses of their official positions in  

                                                                     

                    the  Lake  and  Peninsula  Borough  for  personal  or  financial  

                    gain.  More specifically, they are enjoined from taking the  

                                                                                              

                    actions that are set out below.  



                              2.       They may not authorize, approve, accept or use  

                                                              

                    any  Borough  funds  or  resources  to  defend  against  this  

                                                                                          

                    lawsuit, including (a) the time and efforts of the Lake and  

                    Peninsula   Borough   Attorney,   (b)   Lake   and   Peninsula  

                    Borough staff, property, equipment, website, letterhead or  

                    any other resources, (c) Lake and Peninsula Borough mailing  

                                                        

                    and emailing lists, and (d) any method of mailing, emailing,  

                                                 

                    distribution or publication paid for in whole or in part by the  

                                                                                          

                    Lake and Peninsula Borough;  



                              3.       They may not authorize, approve, accept, or use  

                                                                             

                    any Borough funds or resources purportedly appropriated to  

                                                                     

                    defend  this  lawsuit  through  Borough  Resolution  #12-09,  

                    which this court finds was not lawfully enacted.  



                              4.       The  defendants  may  not  authorize,  approve,  

                    accept or use any Borough funds transmitted by the Borough  

                                                                     

                    through [AMLJIA] for the specific purpose of securing that  

                                                                                      

                    entity's agreement to reverse its coverage decision regarding  

                                                                    



                                                              -9-                                                        6900
  


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

their defense in this proceeding.  They can accept AMLJIA  

funds for their legal fees that do not otherwise fall into that  

category.  



         5.       They  may  not  use  any  Borough  facilities,  

property or other resources or staff to investigate, attack or  

question the allegations in this lawsuit or plaintiffs in this  

lawsuit.  



         6.       While  acting  in  any  official  capacity  as  the  

Borough  Mayor  and/or  being  a  member  of  the  Borough  

Assembly,  they  may  not  speak  in  favor  of  (or  against)  or  

                                                                    

endorse  the  Pebble  Mine  Project  or  any  entities  with  an  

interest in the success of the Pebble Mine Project or take any  

                                                                         

official action  against those  who  oppose  the  Pebble  Mine  

                                                                 

Project and/or related entities.  



         7.       They  shall  not  fail  to  declare  a  conflict  of  

interest and/or take official actions when any matters come  

                                        

before the Borough Assembly related to this lawsuit.  



         8.       The defendants shall not fail to declare a conflict  

of interest and/or take official action on matters in which they  

                                                   

have a significant financial interest, including, with regard to  

            

Glen Alsworth Sr., the transportation budget of the Lake and  

                                                                       

Peninsula School District and the transportation budget of the  

Lake and Peninsula Borough, and for both Mr. Alsworth and  

                                                                 

Ms. Anelon, any votes relating, directly or indirectly, to the  

Pebble Mine Project.  



         9.       They may not vote on any matters before the  

Borough Assembly in which defendants have a significant  

financial interest, including, with regard to Mr. Alsworth, the  

                                        

transportation  budget  of  the  Lake  and  Peninsula  School  

Board   and   the   transportation   budget   of   the   Lake   and  

Peninsula       Borough,        and    for    both     Mr.    Alsworth        and  

Ms. Anelon, any votes relating, directly or indirectly, to the  

Pebble Mine Project.  



                                       -10-                                                   6900
  


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

                                                              

                                 10.       They shall not fail to file timely, complete and  

                                                                             

                      accurate Public Official Financial Disclosures as required by  

                      law.  (Emphasis in original.)  



                                                                                                      

                      Alsworth and Anelon moved for reconsideration, which the superior court  



denied.  Alsworth and Anelon then petitioned this court for review, arguing:  (1) the  



injunction  impermissibly  restricts  their  freedom  of  speech  and  infringes  on  their  



                                     

legislative immunity; (2) the superior court erred in applying the balance of hardships  



preliminary  injunction  standard  because  there  is  no  threat  of  irreparable  harm  and  



                                                                                                                          

Alsworth and Anelon are not adequately protected under the injunction; and (3) the  



superior court erred by finding that the Borough is not an indispensable party.  We  



granted the petition.  



III.       STANDARD OF REVIEW  



                                                                               

                      Although we "review the issuance of preliminary injunctions for abuse of  



                   11 

                                                                                                

discretion,"          "we review de novo the superior court's legal determinations in issuing the  



                                        12  

preliminary injunction."                    "We apply our independent judgment to constitutional law  



           11         City of Kenai v. Friends of Recreation Ctr., Inc.                         , 129 P.3d 452, 455 (Alaska  



2006) (citing Metcalfe , 110 P.3d at 978).                          Under the abuse of discretion standard, " 'an                    

injunction will not be disturbed unless contrary to some rule of equity, or the result of   

improvident exercise of judicial discretion.' "                           Kluti Kaah , 831 P.2d at 1272 n.4 (quoting   

Alaska Pub. Utils. Comm'n v. Greater Anchorage Area Borough                                                , 534 P.2d 549, 557  

(Alaska 1975) (quoting Prendergast v. N.Y. Tel. Co. , 262 U.S. 43, 50-51 (1923))); cf.  

Friends of Recreation Ctr. , 129 P.3d at 455 ("We will find an abuse of discretion only  

                                                                                                 

when we are left with a definite and firm conviction, after reviewing the whole record,  

                                                                                       

that the trial court erred in its ruling." (quoting DeSalvo v. Bryant , 42 P.3d 525, 528  

                      

(Alaska 2002)) (internal quotation marks omitted)).  



           12  

                                                                                                                                

                      Friends of Recreation Ctr. , 129 P.3d at 455 (citing People ex rel. Gallo v.  

Acuna , 929 P.2d 596, 626 (Cal. 1997)).  



                                                                   -11-                                                             6900
  


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

issues, and consider precedent, reason, and policy."13  



IV.       DISCUSSION  



          A.       The Superior Court Erred In Its Preliminary Injunction Standard.  



                   A  plaintiff  may  obtain  a  preliminary  injunction  by  meeting  either  the  



                                                                                                   14  

balance of hardships or the probable success on the merits standard.                                   The balance of  



hardships  standard  requires  balancing  the  harm  the  plaintiff  will  suffer  without  the  



                                                                                                     15 

                                                                                                         A preliminary  

injunction against the harm the injunction will impose on the defendant. 



injunction is warranted under that standard when three factors are present:  "(1) the  



                                                                            

plaintiff must be faced with irreparable harm; (2) the opposing party must be adequately  



protected; and (3) the plaintiff must raise serious and substantial questions going to the  



                                                                                                  

merits of the case; that is, the issues raised cannot be frivolous or obviously without  



          16  

merit."         Our  rationale  in  adopting  the  balance  of  hardships  rule  in  A.J.  Industries  



                                                       

demonstrates that a court is to assume the plaintiff ultimately will prevail when assessing  



                                                                                    

the irreparable harm to the plaintiff absent an injunction, and to assume the defendant  



ultimately will prevail when assessing the harm to the defendant from the injunction:  



                   "Where  the  questions  presented  by  an  application  for  an  

                                        

                   interlocutory  injunction  are  grave,  and  the  injury  to  the  



          13       Bridges v. Banner Health            , 201 P.3d 484, 489 (Alaska 2008) (citing Alaska  



Pub. Interest Research Grp. v. State , 167 P.3d 27, 34 (Alaska 2007);                             Alaska Legislative  

Council v. Knowles, 21 P.3d 367, 370 (Alaska 2001)).  



          14       A.J. Indus., Inc. v. Alaska Pub. Serv. Comm'n , 470 P.2d 537, 540 (Alaska  



                         

1970), modified in other respects, 483 P.2d 198 (Alaska 1971).  We adopted the balance  

                                                                 

of hardships standard as an alternative to the rule "requiring a clear showing of probable  

success" on the merits.  Id.  



          15       Id.  



          16       Kluti Kaah , 831 P.2d at 1273 (quoting Messerli v. Dep't of Natural Res. ,  



768 P.2d 1112, 1122 (Alaska 1989)) (internal quotation marks omitted).  



                                                           -12-                                                      6900
  


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

                   moving   party          will     be   certain      and   irreparable,          if  the  

                   application be denied and the final decree be in his favor,  

                                                                          

                   while if the injunction be granted the injury to the opposing  

                                                                           

                   party,  even  if  the  final  decree  be  in  his  favor,  will  be  

                                          

                   inconsiderable, or may be adequately indemnified by a bond,  

                   the injunction usually will be granted."[17]  



Accordingly, the balance of hardships standard  



                    applies  only  where  the  injury  which  will  result  from  the  

                                                     

                   temporary restraining order or the preliminary injunction can  

                                                                                               

                   be indemnified by a bond or where it is relatively slight in  

                    comparison  to  the  injury  which  the  person  seeking  the  

                    injunction will suffer if the injunction is not granted.  Where  

                                                       

                   the injury which will result from the temporary restraining  

                    order or the preliminary injunction is not inconsiderable and  

                                      

                   may not be adequately indemnified by a bond, a showing of  

                                                                                        [18] 

                   probable success on the merits is required . . . .  



                                                 

                    The superior court concluded in this case that the balance of hardships  



                                                                                                  

militated in favor of granting the preliminary injunction. The court identified five forms  



                                          

of irreparable harm Seybert would suffer if the injunction did not issue.  Alsworth and  



                                                   

Anelon argue the superior court's irreparable harm finding was in error, but we do not  



need to address this issue because we decide this case on the "adequately protected"  



prong.  



                           

                    The superior court summarily concluded the injunction would not cause  



                    

unnecessary harm to Alsworth or Anelon:  "The defendants are adequately protected  



because plaintiffs are essentially asking only that defendants be required to comply with  



          17       470 P.2d at 540 (emphasis added) (quoting Ohio Oil Co. v. Conway, 279  



U.S. 813, 815 (1929)).  



          18       State v. United Cook Inlet Drift Ass'n, 815 P.2d 378, 378-79 (Alaska 1991)  



(citations omitted) (citing A.J. Indus. , 470 P.2d at 540; Alaska Pub. Utils. Comm'n v.  

                

Greater Anchorage Area Borough, 534 P.2d 549, 554 (Alaska 1975)).  



                                                            -13-                                                       6900
  


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

                                                                                                      

the law.  The court does not see how any harm  could  occur from ordering them to  



                                                                               19  

comply with laws that already govern them."                                         Alsworth and Anelon assert three harms  



                                                                                               

from the injunction:  (1) the injunction reduces the number of members available to  



conduct Borough business because Alsworth and Anelon are prohibited from taking  



                                                                                                                                

official actions on matters related to Pebble Mine, the Borough budget, and the School  



                                     

District budget; (2) the injunction interferes with Alsworth's and Anelon's abilities to  



perform their functions as elected officials to the detriment of voters' expectations; and  



(3) the injunction hinders free debate within the Borough by limiting the subjects on  



                                                                                                             

which Alsworth and Anelon may speak. Seybert counters that the preliminary injunction  



                                                                           

does not interfere with official duties or free debate because state and Borough laws  



already prohibit the enjoined actions.  



                                                

                        The superior court erred by considering the injunction's harms to Alsworth  



                                                                                             

and Anelon under the assumption that the enjoined actions will ultimately be found to  



                  20  

                                                                                                                      

be illegal.           We addressed an analogous situation in State v. Kluti Kaah Native Village  



                                              

of Copper Center, where the plaintiff sought an injunction ordering the State to comply  



                                                                                                                21  

                                                                                                                    We held the superior  

with the law and refrain from enforcing "an illegal regulation." 



court  erred  in  its  "adequately  protected"  analysis  because  it  failed  to  consider  the  



            19          The superior court did not expressly conclude Seybert had raised "serious   



and  substantial   questions  going  to  the  merits  of  the  case"  -  the  third  prong  of  the  

balance of hardships standard - but we infer the superior court so concluded because       

the issues Seybert had raised are not "frivolous or obviously without merit."                                                             See Kluti  

Kaah , 831 P.2d at 1273 (quoting                           Messerli , 768 P.2d at 1122) (internal quotation marks     

omitted).  



            20          Cf. A.J. Indus., 470 P.2d at 540 (quoting Ohio Oil Co., 279 U.S. at 815)  



                                                                                                          

(noting  "adequately  protected"  inquiry  should  presume  defendant  will  ultimately  

prevail).  



            21          831 P.2d at 1271.  



                                                                         -14-                                                                    6900
  


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

                                                                        

injunction's interference with the State's "role as protector of the resource" and with the  



interests of other subsistence users, notwithstanding the alleged illegality of the State's  



            22  

                                                                                             

actions.        The proper inquiry under the balance of hardships standard is not whether the  



                                                         

injunction merely orders a defendant to comply with the law, but whether, assuming the  



                                                                       

defendant will ultimately prevail, "the injury which will result from the . . . injunction  



can be indemnified by a bond or . . . is relatively slight in comparison to the injury which  

the person seeking the injunction will suffer if the injunction is not granted."23 



                                                                                              

                     Enjoining the listed actions - speaking about Pebble Mine, conducting  



official  Borough  business,  accepting  Borough  money  for  legal  defense  -  imposes  



                                                              24  

                                                                    Alsworth's  and  Anelon's  injuries  are  not  

serious  harm  on  Alsworth  and  Anelon. 



                                                   25  

"relatively  slight  in  comparison"    to  Seybert's  alleged  injury  in  the  absence  of  the  



                                                                                                    

injunction, nor can they be indemnified by a bond. Our statement in an earlier case rings  



true  here:    "issuance  of  this  injunction  is  a  zero-sum  event,  where  one  party  will  

                                                                             26   The  superior  court should  have  

                                                                                                                 

invariably  see  unmitigated  harm  to  its  interests."  



          22        Id. at 1273.  



          23         United Cook Inlet Drift Ass'n               , 815 P.2d at 378-79 (citing               A.J. Indus. , 470  



P.2d at 540; Alaska Pub. Utils. Comm'n , 534 P.2d at 554).  



          24        We consider the injunction's impact on Anelon as it would have applied at  

                                                                                                 

the time the superior court issued its order, although the injunction may no longer have  

                                                                   

any practical impact on Anelon due to her reelection defeat.  We do not need to decide  

                                                                  

the  relevance  of  the  injunction's  current  impact  on  Anelon  because  we  vacate  the  

injunction in full.  



          25         United Cook Inlet Drift Ass'n, 815 P.2d at 379.  



          26        State, Div. of Elections v. Metcalfe, 110 P.3d 976, 979 (Alaska 2005).  



                                                               -15-                                                         6900
  


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

                                                                                                                                  27  

                                  

applied  the  probable  success  on  the  merits  test,  not  the  balance  of  hardships  test. 



Because  the  superior  court  applied  the  wrong  standard,  we  vacate  the  preliminary  

                                                                                           

injunction in full.28  



          B.	       Paragraph Six Of The Preliminary Injunction Is A Prior Restraint On  

                                                                                                    

                     Speech In Violation Of Article I, Section 5 Of The Alaska Constitution.  

                                                                                             



                    Even though we vacate the injunction in full, we explain our earlier order  

                                                                                           



vacating the portion of the preliminary injunction barring certain official action and  



speech  by  additionally  holding  that  the  injunction's  restriction  on  Alsworth's  and  



                                                                                                                   

Anelon's  speech  on  Pebble  Mine  is  an  impermissible  prior  restraint  on  speech.  



                                                                                                               

Paragraph  Six  of  the  preliminary  injunction  prohibits  Alsworth  and  Anelon  from  



                                                                                                                

"speak[ing] in favor of (or against) or endors[ing] the Pebble Mine Project or any entities  



                                                                                         

with an interest in the success of the Pebble Mine Project or tak[ing] any official action  



                                              

against those who oppose the Pebble Mine Project and/or related entities."  Alsworth and  



Anelon argue these prohibitions violate their rights to freedom of speech under article I,  



                                                                                                 

section 5 of the Alaska Constitution.  Seybert counters that: (1) elected officials have no  



protected right to expression in their official capacities; (2) Alsworth's and Anelon's  



                                                                        

speech about Pebble Mine does not qualify as protected speech; (3) the injunction is a  



                                                                                                   

valid restriction on speech because it is merely enforcing laws that pass intermediate  



                                                                                                                  

scrutiny; and (4) Alsworth waived his speech rights by participating in the enactment of  



Borough laws restricting the speech at issue.  



          27	       See id.  



          28        We do not consider whether the superior court could have granted this  



injunction under the probable success on the merits standard.  See State v. Kluti Kaah  

                            

Native Vill. of Copper Ctr. , 831 P.2d 1270, 1275 (Alaska 1992) (concluding vacatur is  

                       

appropriate  remedy  when  superior  court  applies  incorrect  preliminary  injunction  

standard).  



                                                               -16-	                                                        6900
  


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

                                                                                                               

                    1.	       Paragraph  Six  imposes  an  impermissible  prior  restraint  on  

                              speech.  



                                    

                    The First Amendment broadly protects the "freedom of expression upon  



                           29 

                                                      

public questions."             "[T]he Alaska Constitution protects free speech at least as broad[ly]  



                                                                                                    30  

as the U.S. Constitution and in a more explicit and direct manner."                                       

                    Preliminary injunctions against speech are prior restraints,31 and "[a]ny  



system of prior restraints of expression . . . bear[s] a heavy presumption against its  



                                    32  

constitutional validity."               This is true even when the speech is alleged to violate an  



                                            33  

otherwise constitutional law.                   Preliminary injunctions are almost always held to be  



                                                                                                     

unconstitutional burdens on speech because they involve restraints on speech before the  



          29	       N.Y. Times Co. v. Sullivan , 376 U.S. 254, 269 (1964).  



          30        Alaskans for a Common Language, Inc. v. Kritz , 170 P.3d 183, 198 (Alaska   



2007) (alteration in original) (footnotes omitted) (quoting  Vogler v. Miller, 651 P.2d 1,  

3 (Alaska 1982); Messerli v. State , 626 P.2d 81, 83 (Alaska 1980)) (internal quotation  

marks omitted).  



          31        See, e.g., Fort Wayne Books, Inc. v. Indiana , 489 U.S. 46, 66-68 (1989);  



 Vance v. Universal Amusement Co., 445 U.S. 308, 316 (1980) (per curiam); Org. for a  

                                                               

Better Austin v. Keefe , 402 U.S. 415, 419-20 (1971); Auburn Police Union v. Carpenter ,  

                                                                                                                

8 F.3d 886, 903 (1st Cir. 1993).  



          32  

                                                                                                                   

                    Bantam Books, Inc. v. Sullivan , 372 U.S. 58, 70 (1963); see also Pittsburgh  

                    

Press Co. v. Pittsburgh Comm'n on Human Relations , 413 U.S. 376, 390 (1973) ("The  

                                                                                            

special vice of a prior restraint is that communication will be suppressed, either directly  

                                                                          

or by inducing excessive caution in the speaker, before an adequate determination that  

it is unprotected by the First Amendment."); Kritz , 170 P.3d at 205 ("Both the federal  

and Alaska Constitutions look with disfavor on broad-based prior restraint rules . . . .").  



          33  

                                                                            

                    Fort Wayne Books , 489 U.S. at 66 ("[O]ur cases firmly hold that mere  

                                          

probable cause to believe a legal violation has transpired is not adequate to remove books  

or films from circulation [via preliminary judgment].").  



                                                              -17-	                                                        6900
  


----------------------- Page 18-----------------------

                                                                                                                                      34  

                                             

speech has been fully adjudged to not be constitutionally protected.                                                                       A preliminary  



                                                                                                                      

injunction barring speech may be permissible only if the trial court has fully adjudicated  



                                                                                                                                             35  

and determined that the affected speech is not constitutionally protected.                                                                        



                                                

                          Nothing in the record indicates that the superior court evaluated, much less  



conclusively determined, whether Alsworth's or Anelon's speech concerning Pebble  



                                                                             

Mine is unprotected under the Alaska  Constitution.  Paragraph Six thus imposes an  



                                                                                                                                        

unconstitutional prior restraint on Alsworth's and Anelon's speech in violation of their  

rights under article I, section 5 of the Alaska Constitution and must be vacated.36  



                          2.	          Alsworth's  and  Anelon's  official  speech  is  not  unprotected  

                                       simply because they are elected officials.  



                                                                               

                          Seybert argues Alsworth's and Anelon's speech about Pebble Mine is not  



                                                                                    

protected because "[t]he protected speech rights of elected public officials and public  



employees under the First Amendment and the Alaska Constitution are limited to speech  



             34           See, e.g., id.  at 66-68;  Vance, 445 U.S. at 316 (expressing concern that a  



defendant "would be required to obey such an order pending review of its merits and                                                                

would be subject to contempt proceedings even if the [speech] is ultimately found to be          

[protected]").  See generally, Mark A. Lemley & Eugene Volokh, Freedom of Speech  

and Injunctions in Intellectual Property Cases, 48 DUKE  L.   J. 147, 169-180, 199-210   

(1998).  Permanent injunctions, on the other hand, may be valid restrictions on speech              

because "the order will not have gone into effect before [the court's] final determination               

that the actions of [the defendant are] unprotected."                                                 Pittsburgh Press Co. , 413 U.S. at  

390.  



             35  

                                                                                 

                          San Antonio Cmty. Hosp. v. S. Cal. Dist. Council of Carpenters, 125 F.3d  

                                                                                                                    

 1230, 1239 (9th Cir. 1997).  But see id. at 1240 (Kozinski, J., dissenting) (noting the case  

"is the first ever (so far as I am aware) to uphold a preliminary injunction against speech  

covered by Sullivan").  



             36           The U.S. Supreme Court has suggested that a preliminary injunction against  



                                                                           

speech might be permissible if special procedural safeguards are in place to ensure that  

                                                                        

no protected speech is enjoined, but the injunction in this case contains no safeguards  

whatsoever.   Vance, 445 U.S. at 317.  



                                                                                -18-	                                                                         6900
  


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

on matters of legitimate public concern"; and "any speech by Alsworth in his official  



                                                                                              

capacity regarding the Pebble Project is speech on a topic of personal interest," not  



                                                                                                      

public concern.  Seybert's argument is based on a line of cases holding public employees  



                                                                                   

do not enjoy broad First Amendment protection against employer discipline when they  

speak on matters of private concern during the performance of their official duties.37  



                                                                                                       

Seybert urges this court to extend the rule to elected officials' speech.  While a few trial  



                                                                                                            38 

                                                                                                               neither the  

courts have extended the principle to limit elected officials' speech rights, 



                               

U.S. Supreme Court nor this court has done so, and other courts have expressly declined  



                     39  

the  invitation.           Limiting  elected  officials'  speech  protections  runs  counter  to  the  



                                                                    

jurisprudence of the U.S. Supreme Court and this court.  The U.S. Supreme Court held  



                                                                                                     

in Bond v. Floyd that legislators' First Amendment rights are as broad as those of private  



          37        See, e.g., Garcetti v. Ceballos, 547 U.S. 410, 421 (2006); Connick v. Myers,  



461 U.S. 138, 142 (1983); Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will  

                                                                                                          

 Cnty., Ill., 391 U.S. 563, 568 (1968); Wickwire v. State, 725 P.2d 695, 700-03 (Alaska  

                                                                       

 1986); State v. Haley, 687 P.2d 305, 311-14 (Alaska 1984).  



          38        See, e.g., Hartman v. Register , No. 1:06-CV-33, 2007 WL 915193, at *6  



(S.D. Ohio Mar. 26, 2007); Hogan v. Twp. of Haddon , No. 04-2036 (JBS), 2006 WL  

3490353, at *6 (D.N.J. Dec. 1, 2006).  



          39        See Siefert v. Alexander, 608 F.3d 974, 991 (7th Cir. 2010) (Rovner, J.,  



dissenting in part) ("Neither this court nor the Supreme Court, however, has ever held  

that these decisions limiting the speech of public employees can be applied to elected  

                                                                                                     

officials' speech, including the speech of elected judges."); Alaskans for a Common  

Language, Inc. v. Kritz , 170 P.3d 183, 202-04 (Alaska 2007) (applying Pickering and  

                                                          

Connick to public employee speech, but not to elected official speech); see also Rangra  

                                           

v. Brown , 566 F.3d 515, 522 (5th Cir. 2009) ("The district court's premise that the First  

                                                                                                                   

Amendment's protection of elected officials' speech is limited just as it is for the speech  

of public employees, however, is incorrect."), vacated as moot, 584 F.3d 206 (5th Cir.  

2009) (en banc).  



                                                            -19-                                                       6900
  


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

               40  

                                                                                                                                         

citizens.           This court held similarly in  Thoma v. Hickel, concluding that the governor  



enjoys the same speech rights under the U.S. and Alaska constitutions as do his critics  



                              41  

in  the  citizenry.                  Alsworth  and  Anelon  enjoy  no  less  speech  protection  as  elected  



                                                                                                                                                              42  

                                                                                                                 

officials than do private citizens under article I, section 5 of the Alaska Constitution. 



Because Alsworth's and Anelon's positions as elected officials do not render their speech  



regarding  Pebble  Mine  unprotected,  the  preliminary  injunction  amounts  to  a  prior  

restraint on speech not yet adjudged to be unprotected.43  



V.           CONCLUSION  



                                                                     44  

                         Based on the foregoing,                         we REVERSE the superior court's preliminary  



injunction.  



            40           385 U.S. 116, 136-37 (1966).  



            41           947 P.2d 816, 821, 824 (Alaska 1997).  



            42           Seybert  offers  no  legal  authority  establishing   that  voting  for  speech- 



restricting laws waives one's speech rights; accordingly, his argument that Alsworth   

waived his speech right by helping to enact the Borough's conflict of interest laws fails.   



            43           We also note that enjoining the Borough Mayor from speaking in an official  



                                                                         

capacity on a subject the Borough has officially endorsed - Pebble Mine - seems to  

lack any basis whatsoever. 



            44            Because we vacate the injunction based on the incorrect application of the  

                                                              

preliminary injunction standard and on free speech grounds, we do not address Alsworth  

                                                                                                                     

and Anelon's additional arguments that the injunction violates their legislative immunity  

                                                                                                    

and that the superior court erred by not joining the Borough as an indispensable party.  



                                                                             -20-                                                                            6900  

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