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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. RBG Bush Planes, LLC v. Kirk (1/9/2015) sp-6978

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

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

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

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

         corrections@akcourts.us.  



                  THE SUPREME COURT OF THE STATE OF ALASKA  



RBG BUSH PLANES, LLC,                              )
  

ROBERT B. GILLAM,                                  )
       Supreme Court No. S-15217  

and MCKINLEY CAPITAL                               )
  

MANAGEMENT, LLC,                                   )
       Superior Court No. 3AN-12-10793 CI  

                                                   )
  

                          Appellants,              )
       O P I N I O N  

                                                   )
  

         v.                                        )        No. 6978 - January 9, 2015  

                                                   )  

KENNETH KIRK, in his official                      )  

capacity as Chair of the Alaska                    )  

Public Offices Commission, and                     )  

PAUL R. DAUPHINAIS, in his                         )  

official capacity as Executive Director  )  

of the Alaska Public Offices                       )  

Commission,                                        )  

                                                   )  

                          Appellees.               )  

                                                   )  



                 Appeal from the Superior Court of the State of Alaska, Third  

                 Judicial District, Anchorage, Kevin M. Saxby, Judge.  



                 Appearances:  Timothy  A.  McKeever,  Holmes  Weddle  &  

                                                                     

                 Barcott,  PC,  Anchorage,  for  Appellant  RBG  Bush  Planes  

                 LLC.  JL McCarrey, McKinley Capital Management LLC,  

                 Anchorage,       Attorney      for   Appellant      McKinley        Capital  

                 Management  LLC.    Ronald  L.  Bliss,  Bliss  Wilkens  &  

                 Clayton, Anchorage, for Appellant Robert B. Gillam.  John  

                                              

                 M.  Ptacin,  Assistant  Attorney  General,  Anchorage,  and  

                                               

                 Michael C. Geraghty, Attorney General, Juneau, for Appellee  

                 Paul R. Dauphinais.  William E. Milks, Assistant Attorney  

                 General, and Michael C. Geraghty, Attorney General, Juneau,  

                 for Appellee Kenneth Kirk.  


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

                    Before:  Winfree, Stowers, and Bolger, Justices.
  

                    [Fabe, Chief Justice, and Maassen, Justice, not participating.]
  



                    BOLGER, Justice.  



I.        INTRODUCTION  



                    Robert Gillam and two of his business ventures (collectively, Gillam) filed  

                                                                                                             



suit,  alleging  that  the  Alaska  Public  Offices  Commission  should  not  be  allowed  to  

                                  



investigate  and  decide  whether  Gillam  had  committed  certain  campaign  finance  



violations.    Gillam  alleged  that  both  the  Executive  Director  and  the  Chair  of  the  



Commission were biased and that further consideration by the Commission would violate  



his right to due process protected by the Alaska and federal constitutions and his Alaska  

              



constitutional right to a fair investigation.  The superior court concluded that Gillam's  

                                                                                                            



claims are not ripe and that Gillam has failed to exhaust his administrative remedies.  We  

                                                                     



agree that there is an administrative recusal procedure for Gillam's state law claims and  

                                                                                



that Gillam must exhaust that remedy before bringing his state law claims to court.  We  

                                                                   



also  agree  that  Gillam's  federal  due  process  claim  is  not  ripe  because  the  recusal  

                                                                                                               



procedure may resolve that claim.  



II.       FACTS AND PROCEEDINGS  

                    The Alaska Public Offices Commission is appointed by the governor1 and  

                                                            



                                                                                                                 2  

charged  with  interpreting  and  enforcing  Alaska's  campaign  finance  laws.     In  that  

                                         



capacity, the Commission investigates and adjudicates claims that those laws have been  

                                                                                 



          1         AS 15.13.020.  



          2         AS 15.13.030; see also Alaska Right to Life Comm. v. Miles, 441 F.3d 773,   



776 (9th Cir. 2006).  



                                                             -2-                                                           6978  


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

                                                               3                                           4  

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



                                                                                                               5  

employ an executive director, as well as any additional staff they require.    



                                                                                                            

                    A person who suspects a violation of campaign finance laws may file a  



complaint  with  the  Commission,  and  the  complaint  must  satisfy  several  formal  



                     6  

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



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



                                                                                            7 

                                                                                               Finally, the Commission  

investigates the complaint and prepares a report of its findings. 

holds a hearing and issues a decision,8 which is appealable to the superior court.9  



                                                                                                  

                    In  August  2012  Joel  Natwick  filed  a  complaint  with  the  Commission  



against  the  three  appellants:    Gillam,  RBG  Bush  Planes,  and  McKinley  Capital  



Management.  The Commission staff accepted the complaint over Gillam's objection that  



it  failed  to  meet  the  formal  requirements  mentioned  above,  and  it  asked  Gillam  to  



                                                                  

produce several documents for purposes of an investigation.  The Commission requested  



          3         AS 15.13.020(a).  



          4         AS 15.13.020(g).  



          5         AS 15.13.020(i). Neither the executive director nor any other Commission      



employee may vote on matters decided by the Commission.  Id.  



          6         2 Alaska Administrative Code (AAC) 50.870 (2013).  The complaint must  

                        

be in writing, signed "under oath and upon penalty of perjury" and notarized, and must  

                                                                                   

contain certain information such as the facts constituting the alleged violation and the  

basis for the complainant's knowledge of those facts.  Id.  



          7         2 AAC 50.875.  



          8         2 AAC 50.875(e); 2 AAC 50.891.  



          9         AS 15.13.380(g).  



                                                               -3-                                                         6978
  


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

that    an  Administrative    Law   Judge    (ALJ)    be    assigned  to  oversee    the   Natwick  



proceedings, and one was assigned.  



                   In September 2012 there was apparently a meeting between Curtis Thayer,  



                

a  Deputy  Commissioner  of  the  Department  of  Administration,  and  appellee  Paul  



                                                                                       

Dauphinais,  the  Executive  Director  of  the  Commission.                           Thayer  later  testified  in  a  



deposition  that,  at  the  meeting,  Dauphinais  asked  for  a  budget  increase  so  the  



Commission could investigate and thus "get" and "ruin" Gillam.  At the same meeting,  



Dauphinais allegedly mentioned a conversation he had with the Securities and Exchange  



                                                                                                  

Commission (SEC) regarding purported wrongdoing that  "would bring Mr. Gillam's  



business down."  



                                       

                   Gillam filed  suit in superior court in November 2012 against Elizabeth  



                                                                                                   

Hickerson, in her capacity as Chair of the Commission, and  Paul Dauphinais, in his  

                                                                        10  Gillam invoked 42 U.S.C.  1983  

                                                                             

capacity as Executive Director of the Commission. 



and 1988, as well as provisions of the federal and Alaska constitutions, claiming his  



                                                                                                 

constitutional rights were being violated in the Natwick matter due to bias on the part of  



                                                                                                             

the  Commission.    Gillam  asked  that  the  court  enjoin  the  Commission  from  being  



                                                                               

involved in any way with the Natwick complaint and appoint a special investigator to  



                                                                                        

investigate the matter.   He also asked that an independent ALJ or the superior court  



conduct any hearing to adjudicate the complaint.  



                   Hickerson   and   Dauphinais   moved   to   dismiss   under   Alaska   Civil  



Rule  12(b)(6).    They  also  moved  to  stay  discovery  pending  the  court's  decision  on  



dismissal.    Gillam  opposed  the  motions  to  dismiss  and  moved  for  a  preliminary  



                                                                                                  

injunction to stay the Natwick proceedings.  Gillam attached to his motion a portion of  



          10       The current chair of the  Commission, Kenneth Kirk, has recently been  



substituted in place of Elizabeth Hickerson.  



                                                             -4-                                                         6978  


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

the  transcript  of  Thayer's  deposition  testimony  as  well  as  an  affidavit  from  former  



Commission staff member Vullnet Greva to demonstrate the Commission's alleged bias  



against Gillam.  



                    The superior court granted Gillam leave to submit supplemental briefing  



                                               

in response to the motions to dismiss and to address all pending discovery motions.  



                                                                                                                        

Gillam submitted briefing, to which he appended additional evidence - notes from an  



                                                                          

interview with a former Commission attorney.   The superior court then informed the  



                                                         

parties that, because of the evidence that had been introduced post-pleading, it would  



                                                       

convert  the  Rule  12(b)(6)  motion  to  dismiss  to  a  Alaska  Civil  Rule  56  motion  for  



summary judgment.  The superior court granted summary judgment to Hickerson and  



Dauphinais.  Gillam now appeals to this court.  



III.      STANDARD OF REVIEW  



                    "We review grants of summary judgment de novo, 'draw[ing] all factual  



inferences in favor of, and view[ing] the facts in the light most favorable to, the party  



                                                                                11  

                                                                                      "We  will  affirm  the  grant  of  

against  whom  summary  judgment  was  granted.'  " 



summary judgment when the record presents no genuine issues of material fact and the  

                                                                                                                         

movant was entitled to judgment as a matter of law."12  



                    "Whether a type of claim generally requires exhaustion of administrative  

                                                                                         

                                                                                 13  But "[w]e review for abuse of  

remedies is a legal question that we review de novo."                                                                  



          11        Charles v. Stout, 308 P.3d 1138, 1140 (Alaska 2013) (alteration in original)       



(quoting Interior Cabaret, Hotel, Rest. & Retailers Ass'n v. Fairbanks N. Star Borough                                            ,  

135 P.3d 1000, 1002 (Alaska 2006)).  



          12        Id. (citing Smith v. State, 282 P.3d 300, 303 (Alaska 2012)).  



          13         Winterrowd v. State, Dep't of Admin., Div. of Motor Vehicles, 288 P.3d 446,
  



449 (Alaska 2012) (emphasis in original) (quoting Smart v. State, Dep't of Health & Soc.
  

                                                                                                            

                                                                                                               (continued...)
  



                                                               -5-                                                         6978
  


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

discretion  a  superior  court's  determination  of  whether  a  plaintiff  exhausted  those  

                                                                                                      

remedies or whether the failure to exhaust should be excused."14  Questions of ripeness  

                                                                                               



                                 15  

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

                     

discretion.16  



IV.       DISCUSSION  



                   The  superior  court  granted  summary  judgment  to  Hickerson  for  three  

                                                                                            



reasons:    (1)  failure  to  exhaust  administrative  remedies;  (2)  lack  of  ripeness;  and  



                                                                                                     

(3) failure to allege "facts sufficient to overcome the presumption of integrity to which  



Ms. Hickerson and the other commissioners [were] entitled."  The court also granted  



summary judgment to Dauphinais, noting that although the allegations against him were  



                                                                

"more troubling," judicial intervention was nonetheless "improper" based on the claim's  



lack of ripeness.  



                                                                     

                   As noted above, Gillam alleged claims under 42 U.S.C.  1983 and the  



                               17  

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



          13(...continued)  



Servs., 237 P.3d 1010, 1014 (Alaska 2010)).  



          14       Id. (quoting Smart, 237 P.3d at 1014).  



          15       State v. Am. Civil Liberties Union of Alaska, 204 P.3d 364, 368 (Alaska   



2009) (citations omitted).  



          16       Mitchell v. Teck Cominco Alaska Inc. , 193 P.3d 751, 757 (Alaska 2008)  



(citing Hymes v. DeRamus , 119 P.3d 963, 965 (Alaska 2005)).  



          17       42 U.S.C.  1983 (2012) provides, in relevant part:    



                             Every   person   who,   under   color   of   any   statute,  

                                        

                             ordinance, regulation, custom, or usage, of any State  

                             . . . subjects, or causes to be subjected, any citizen of  

                                                     

                             the United States . . . to the deprivation of any rights,  

                                                                                            

                                                                                                           (continued...)  



                                                             -6-                                                       6978
  


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

Fourteenth Amendment to the United States Constitution and article I, section 7 of the  

                                                                                                         



Alaska  Constitution.    Both  constitutional  provisions  protect  one's  right  not  to  be  



                                                                                                    18  

                                                                                                        but  the  Alaska  

deprived  of  life,  liberty,  or  property  without  due  process  of  law, 



                                                            

Constitution additionally protects "[t]he right of all persons to fair and just treatment in  



                                                                                19  

the course of legislative and executive investigations."                             



                    With  respect  to  Gillam's  state  constitutional  claim,  we  agree  with  the  

                                                                                                                  



superior court that Gillam failed to exhaust his administrative remedies. As to the federal  

                                                                                                         



constitutional claim, we conclude that although exhaustion of remedies was not required,  

                                                        



the claim was not ripe for review.  Thus, we affirm the superior court's grant of summary  

                           

judgment against Gillam. 20  



          A.        Exhaustion Of Administrative Remedies  



                    To determine "whether a complaint was correctly dismissed for failure to  



exhaust administrative remedies, we must decide whether (a) exhaustion of remedies was  



          17(...continued)
  



                             privileges, or immunities secured by the Constitution
  

                             and  laws,  shall  be  liable  to  the  party  injured  in  an
  

                                     

                             action at law, suit in equity, or other proper proceeding
  

                                                                          

                             for redress.
  



Section 1983 offers "a uniquely federal remedy against incursions under the claimed  

authority of state law upon rights secured by the Constitution and laws of the Nation."  

                                                                                                  

Mitchum v. Foster , 407 U.S. 225, 239 (1972).  



          18        U.S.  CONST . amend. XIV,  1; Alaska Const. art. I,  7.  



          19        Alaska Const. art. I,  7.  



          20        Because  we  affirm  on  exhaustion  and  ripeness  grounds,  we  need  not  



address  the  superior  court's  dismissal  on  the  alternative,  presumption-of-integrity  

ground.  See Winterrowd v. State, Dep't of Admin., Div. of Motor Vehicles, 288 P.3d 446,  

                                                                                 

449-50 (Alaska 2012).  



                                                             -7-                                                       6978
  


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

                              

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



                                         21  

remedies was excused."                        



                       1.	         Gillam was required to exhaust administrative remedies only  

                                  with respect to his state constitutional claim.  



                       As a general matter, "[e]xhaustion is required if a statute or regulation  



                                                                22  

provides for administrative review."                                "[C]ertain 'pure issues of law,' most notably  



constitutional issues [and] certain questions of statutory validity, are 'within the special  



expertise' of the court, . . . [but] only the purest legal questions, requiring no factual  



                                                                                               23  

context, are exempt from the exhaustion requirement."                                               In other words, "exhaustion  



                                        

may be required when non-constitutional issues are present or when a factual context is  

needed for deciding the constitutional issue."24  



                       In Commission proceedings,25 the Alaska Administrative Procedure Act  



(APA) provides that "[a] party may request the disqualification of a hearing officer or  



                                                                                    

agency member by filing an affidavit, before the taking of evidence at a hearing, stating  



                                                                                                                 

with particularity the grounds upon which it is claimed that a fair and impartial hearing  



            21	        Id. at 450 (citation omitted).  



            22	        Id.  



            23         Doubleday v. State, Commercial Fisheries Entry Comm'n                                              , 238  P.3d 100,  



 107 (Alaska 2010) (citation omitted) (quoting                                  Moore v. State, Dep't of Transp. & Pub.           

Facilities , 875 P.2d 765, 767 (Alaska 1994)).   



            24  

                                                                                                                                 

                       Ben Lomond, Inc. v. Municipality of Anchorage , 761 P.2d 119, 122 (Alaska  

 1988) (citing 4 KENNETH CULP  DAVIS ,  ADMINISTRATIVE LAW TREATISE   26:6 (2d ed.  

 1983)) (also noting that "successful pursuit of a claim through the administrative process     

could obviate the need for judicial review of the constitutional issues" and that "it is   

axiomatic to our system of justice that we have a factual context within which to review                      

a case.").  



            25         See AS 44.62.330(a)(23).  



                                                                        -8-	                                                                6978
  


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

                                26  

cannot  be  accorded."                The  resolution  of  Gillam's  state  constitutional  claim  would  



                                                                                                                       

benefit from the type of factual record developed in an administrative resolution of such  



              27  

                   We thus conclude that Gillam would generally be required to exhaust this  

a request.                                                                                    

remedy before seeking judicial intervention.28  



                                                                                                              

                    But because Gillam raised a federal constitutional claim under section 1983,  



                                                                                                

our analysis does not end here.  In Patsy v. Board of Regents , the United States Supreme  



                                                                                                                       

Court held that a plaintiff need not exhaust state administrative remedies before filing a  



                                                   29  

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



                                                                     30  

                                                                                                          

holding to litigation commenced in state courts.                        This court applied that rule in Diedrich  



     

v.  City  of  Ketchikan,  concluding  that  "federal  law  does  not  permit  states  to  require  



exhaustion of administrative remedies as a prerequisite to the maintenance of a section  



                   31  

 1983 claim." 



                    We disagree with the superior court's conclusion that a departure from  



                                               

Diedrich is warranted because Gillam's alleged injury involves a biased tribunal, thus  



                                                                                                                

raising the question of "whether and how [the injury] may be avoided in the first place."  



          26        AS 44.62.450(c).  



          27        Cf. Voigt v. Snowden, 923 P.2d 778, 782 (Alaska 1996) (noting that the  



administrative termination process could have allayed an employee's fears of a biased  

decision-maker); Eufemio v. Kodiak Island Hosp. , 837 P.2d 95, 99 (Alaska 1992) (noting  

                                           

that a hospital peer review committee could "identify unfair or arbitrary processes, such  

                              

as a biased tribunal, and correct the deficiency to avoid litigation").  



          28        Gillam raises various arguments as to why, despite this statutory procedure,  



no remedy existed.  We address these arguments in the following sub-section.  



          29        457 U.S. 496, 516 (1982).  



          30        487 U.S. 131, 146-47, 153 (1988).  



          31        805 P.2d 362, 368 (Alaska 1991).  



                                                              -9-                                                        6978
  


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

                                                                                                                                   32  

                                                       

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



                                 33  

and Stivers v. Pierce,              as establishing that a section 1983 plaintiff alleging bias "has a  

                                                                   



duty to avail himself of agency recusal procedures if they are provided for by statute."  

                                                                                                



But neither case so decisively supports this proposition.   



                     First, the decision in Flangas was based on the doctrine of abstention, under  



                                                                                                                 

which a federal court "must refrain from hearing constitutional challenges to state action  



under  certain  circumstances  in  which  a  federal  action  is  regarded  as  an  improper  



                                                                                                               34  

intrusion on the right of a state to enforce its laws in its own courts."                                           Under this  



doctrine,        such      intrusion         may      nonetheless           be     warranted         under        "exceptional  



                        35  

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

circumstances."                                                                               



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

                                                   



                                                         36  

disciplinary proceeding against him.                         The Ninth Circuit concluded that because the  

                                                                                           



attorney "fail[ed] to utilize Nevada's disqualification procedures," the court was "unable  

                                                         



to  determine"  whether  the  case  presented  "exceptional  circumstances"  necessary  to  

                        

                                                                                                   37  Flangas thus stands  

warrant a federal injunction of the pending state court proceeding.  

                                                                                                         



for the proposition that exhaustion of remedies may be required to enjoin a state court  

                                                       



proceeding; it does not show that exhaustion of state administrative remedies can be  

                                                                             



required to bring a section 1983 claim in state court.  



          32         655 F.2d 946 (9th Cir. 1981).  



          33         71 F.3d 732 (9th Cir. 1995).  



          34         655 F.2d at 948 (citing Younger v. Harris, 401 U.S. 37 (1971)).  



          35        Id. at 949 (citing Rosenthal v. Carr , 614 F.2d 1219, 1220 (9th Cir. 1980)).     



          36        Id. at 947-48.  



          37        Id. at 949-50.   



                                                               -10-                                                          6978
  


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

                                                  

                    Stivers is similarly inapposite.  In that case, the Ninth Circuit considered  



                            

whether a section 1983 plaintiff had waived the issue of tribunal bias by failing to ask  



for recusal of the allegedly biased tribunal member before the tribunal adjudicated the  



                            38  

underlying matter.              Citing only cases dealing with abstention, the court noted that  



"[w]here state law provides a mechanism for seeking recusal, the litigant may be required  



                                                      39  

to avail himself of that mechanism."                      But the court found that no recusal procedures  

existed,40 and accordingly, it had no occasion to address the special protection afforded  



                                                                         41  

                                                                             Based on the clear rule articulated  

section 1983 claims under Patsy and its progeny. 

in  this  United  States  Supreme  Court  precedent,42  we  conclude  that  Gillam's  federal  



constitutional  claim  is  saved  from  dismissal  on  exhaustion  grounds  because  it  was  



                                          43  

brought under section 1983.                   



          38        71 F.3d at 748.  



          39        Id. (emphasis added) (citing Partington v. Gedan, 880 F.2d 116, 127 (9th  



Cir.1989) (noting recusal procedures in assessing whether "exceptional circumstances"  

                                                                          

existed); Flangas , 655 F.2d at 950).  



          40        Id.  



          41  

                                                                                       

                    See Patsy v. Board of Regents, 457 U.S. 496, 516 (1982) (concluding "that  

                                                    

exhaustion of state administrative remedies should not be required as a prerequisite to  

bringing an action pursuant to  1983"); Felder v. Casey , 487 U.S. 131, 147 (1988)  

(concluding that given the goals of section 1983, Congress could not have "contemplated  

                          

that those who sought to vindicate their federal rights in state courts could be required  

to seek redress in the first instance from the very state officials whose hostility to those  

                                                                          

rights precipitated their injuries.").  



          42        See id.  



          43  

                                                                                                  

                    As  we  discuss  in  Part  IV.B,  however,  we  affirm  the  superior  court's  

decision on the alternative ground that Gillam's section 1983 claim is not ripe.  



                                                             -11-                                                        6978
  


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

                   Based on our decision in Diedrich , however, we also conclude that Gillam's  



state constitutional claim may be separated from his section 1983 claim for purposes of  



                   

exhaustion.  In Diedrich , the plaintiff challenged the termination of his employment with  



                                                                                                 44  

the City of Ketchikan under both section 1983 and other grounds.                                     In particular, he  



alleged that the City "had breached the covenant of good faith and fair dealing implied  



in his employment contract," that his discharge was retaliatory, and "that the City had  



violated  his  constitutional  rights  to  substantive  due  process  (premised  in  part  on  

42 U.S.C.  1983) by offering a pretext for his termination."45  The superior court treated  



                                                      

the suit as an administrative appeal, holding that it was untimely under the applicable  

                                                         46  On appeal, this court held that although the  

                                                                                             

statute of limitations, which is 30 days.  



plaintiff's section 1983 claim could not be dismissed for lack of timeliness, the plaintiff's  

                                                                                                          



suit was nonetheless "properly considered an administrative appeal" with respect to the  

                               

non-section 1983 claims, which were "appropriately dismissed as untimely."47  

                                                                                                                    



                   Thus, under Diedrich , Gillam was required to exhaust his administrative  



remedies with respect to his state constitutional claims, even though they are presented  

                                                                      



in the same action as his section 1983 claim.  



                   2.	       The APA provides for administrative review of Gillam's bias  

                             claims.  



                   Gillam contends that exhaustion was not required because no administrative  



remedies existed. But as noted above, a party to a Commission proceeding "may request  

                                                                     



the disqualification of a hearing officer or agency member by filing an affidavit, before  

                                                                                                  



          44       805 P.2d 362, 364-65 (Alaska 1991).  



          45       Id.  



          46       Id. at 365, 368; see also Alaska R. App. P. 602(a)(2).  



          47       Diedrich , 805 P.2d at 366, 368-69.  



                                                           -12-	                                                     6978
  


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

                                                                                            

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



                                                                                                48  

is claimed that a fair and impartial hearing cannot be accorded."                                    



                                                                                                

                    As an initial matter, we reject Gillam's contention that "ruling on whether  



                                                                   

the  Commissioners  and  Staff  are  biased  is  outside  the  [Commission's]  statutory  



authority."  Alaska Statute  44.62.450(c) explicitly provides the Commission with the  



statutory authority to address allegations of bias within its ranks.  Gillam is correct that  



                                                                                

the Commission was not created for the purpose of "investigating bias and managing  



                                                                                                                       

compliance with due process requirements," but it is still statutorily authorized to do so  



                                                                       

when necessary.  Gillam argues that he cannot be forced to submit to the Commission's  



disqualification   proceeding   without   suffering   constitutional   injury   because   "the  



                                                     49  

                                                                                        

[Commission] is a biased tribunal."                      However, Gillam's claim that the Commission is  

biased has not yet been adjudicated on the merits, so his argument is unavailing.50  



                    Similarly, Gillam argues that the APA at AS 44.62.560(e) authorizes the  



                                                    

court to "enjoin agency action in excess of constitutional or statutory authority at any  



          48        AS 44.62.450(c).  



          49        Along  a  similar  vein,  Gillam   argues  that  the  statutory  disqualification  



procedures are not available because it would require an allegedly biased agency member  

to rule on his or her own disqualification.  But the Commission has five members, and  

                          

the statute provides that where a disqualification request "concerns an agency member,"  

                                                                                                         

the disqualification issue "shall be determined by the other members of the agency."  AS  

                                                                                                                

44.62.450(c) (emphasis added).  



          50  

                                                                                                             

                    Gillam  argues  that  for  purposes  of  summary  judgment,  the  court  was  

required to assume the Commission was biased against him.  This is accurate.  However,  

even if we assume the Commission is biased against Gillam, the Commission should still  

                                                                                                                   

be allowed the opportunity to recuse itself or some of its members, given the fact that  

recusal is proper in exactly such a situation - that is, where bias exists.  Indeed, AS  

                                                                                                                  

44.62.450(c) provides for disqualification where a party states "with particularity" why  

                                                                           

"a fair and impartial hearing cannot be accorded."  



                                                              -13-                                                         6978
  


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

                                                51  

stage of an agency proceeding."                     But we cannot determine whether the Commission has  



acted in excess of its authority until Gillam has exhausted his administrative remedies  



                                                                                 52  

by pursing the APA's procedure for disqualification.                                   



                     Gillam also argues that "the legislature contemplated circumstances where  



the   superior   court   will   hear   administrative   complaints   normally   subject   to   the  



[Commission's] primary jurisdiction."  He points to two statutory provisions, each of  



                                                                                          

which addresses a situation in which the Commission has failed to timely proceed on a  



                53  

                                                                                                                 

complaint.           Because Gillam does not claim that the Commission failed to take timely  



                                                                                                     

action on the Natwick complaint, his proffered authority does not apply to this situation  



                                      

and  cannot  be  used  to  support  his  argument  that  exhaustion  should  not  have  been  



required.  



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



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



                         54  

                                                                                                                    

issued its report.            Gillam argues that had such a report been completed, it would have  



                                                                                        

"serve[d] as an accusation, that would cause reputational and financial harm to [him], as  



                                                                                                           

previous Staff Reports have."  But there is no apparent reason why Gillam could not  



          51         Gillam makes this and the following argument in the ripeness portion of his   



brief, but they appear to be more relevant to exhaustion.  We thus address them here.  



          52        See AS 44.62.450(c).  



          53  

                                                                                                         

                    Alaska Statute 15.13.380(h) allows an administrative complainant to file  

in superior court if the Commission has failed to take action on a complaint within 90  

days of filing; Alaska Statute 44.62.305(a) allows a party to an administrative proceeding  

                                             

to sue in superior court if "the state agency has unreasonably delayed the progress of the  

                                                                                                                              

administrative proceeding."  



          54        See AS 44.62.450(c) ("A party may request the disqualification of a hearing  



officer  or  agency  member  by  filing  an  affidavit,  before  the  taking  of  evidence  at  a  

hearing . . . .") .  



                                                               -14-                                                          6978
  


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

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



                                                                                                                             55  

                                                                                         

bias - so long as he did so at some time "before the taking of evidence at a hearing." 



                    Additionally,  Gillam  asserts  "the  trial  court  fundamentally  erred  in  its  



                                                  

assumption that [he was] seeking a remedy confined to the Natwick complaint."  But the  



                                                                                           

scope of the remedy sought in Gillam's complaint is limited to the Natwick proceedings.  



                                                         

He asked only that the Commission be disqualified from having any further involvement  



in that matter.  



                    Finally,  the  disqualification  procedure  outlined  in  AS  44.62.450(c)  



                                                                                                       

represents an administrative remedy to Dauphinais's allegedly biased conduct.  Even if  



                                                                                                            

the statutory procedure does not expressly address improper staff conduct, it nonetheless  



provides Gillam with an opportunity to prove how Dauphinais's alleged bias has tainted  



                                                                                         

the other Commissioners, thus allowing the Commission to formulate a response.  This  



                      

response may include not only recusal of a Commissioner but also restrictions as to staff  



involvement in the Natwick matter.  



                    3.       Exhaustion of administrative remedies would not be futile.  



                    Gillam points out that "the failure to exhaust administrative remedies is  



                                                                                          

excused . . . where the pursuit of the administrative remedy would be futile due to the  



                                                56  

certainty of an adverse decision."                  He argues that exhaustion of administrative remedies  



would have been futile here because "the evidence showed that the Commissioners and  



Staff were biased against" him.  The superior court disagreed, distinguishing Gillam's  



          55       Id.  



          56        See Bruns v. Municipality of Anchorage, 32 P.3d 362, 371 (Alaska 2001)  

                                    

(internal quotation marks omitted).  



                                                             -15-                                                          6978  


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

case from one in which a regulatory commission refused to hear the plaintiff's claims at  

all, thus rendering exhaustion of administrative remedies "manifestly futile."57  



                   The  superior  court  instead  compared  Gillam's  case  to  one  in  which  a  



             

tribunal  -  the  Department  of  Revenue  -  had  received  a  memorandum  from  the  



                                                                                                        58  

                                                                                                              There,  the  

Attorney  General  suggesting  that  the  plaintiff's  claim  was  untenable. 



                                                               

Department wrote a letter to the plaintiff, stating "[i]t would take a rare and unusual  



                                                                   

situation to disregard" the Attorney General's opinion, but also stressing the importance  

                                                               59  This court acknowledged it was "highly  

                                                                           

of the Department's formal review process.  



possible" that the Department would ultimately defer to the Attorney General's opinion  

                                                                                      



and find against the plaintiff, but "a decision adverse to [the plaintiff's] interests [still  

                                                      

did] not appear to be a 'certainty.' "60 



                    Gillam argues that his  case is more similar to one in which this court  



affirmed the superior court's decision to excuse exhaustion on futility grounds because  

              

the Department of Revenue refused to address the plaintiffs' constitutional challenge.61  

                                                                                        



He also offers a similar case in which exhaustion was deemed futile because an employee  

                                                                            



attempting to sue regarding a collective bargaining agreement was prevented by his  



          57       See Matanuska Elec. Ass'n, Inc. v. Chugach Elec. Ass'n, Inc., 99 P.3d 553,   



560-61 (Alaska 2004).  



          58       Standard  Alaska  Prod.  Co.  v.  State,  Dep't  of  Revenue,  773  P.2d  201,  



208-09 (Alaska 1989).  



          59       Id. at 209.  



          60       Id. (quoting Municipality of Anchorage v. Higgins , 754 P.2d 745, 747-48  



(Alaska 1988) (holding that an exception to the rule would be unwarranted absent a  

showing that exhaustion "would so certainly result in an adverse decision as to render  

                                                                  

the remedy futile" (internal quotation marks omitted)).  



          61       State, Dep't of Revenue v. Andrade, 23 P.3d 58, 67 (Alaska 2001).  



                                                           -16-                                                      6978
  


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

                                                                                                                  62  

                                  

union representative from utilizing the proper administrative procedures.                                              But those  



                                                                                              

cases are distinguishable because the Commission has never refused to address Gillam's  



                                              

bias  contentions.    Gillam's  argument  that,  here,  the  Commission  has  "effectively  



                               

refused" to address his claims because it is biased is unavailing for the reasons explained  

above.63  



                     Finally, Gillam notes this court's holding that failure to exhaust may be  

                                                                                        



excused "where the administrative procedures are ineffective because of . . . bias  . . . or  

                                                       



the possibility that the claimant could face irreparable harm if the administrative process  

                                                                                                

is  followed."64            To  this  end,  he  asserts:    (1)  "[s]ubmission  to  a  fatally  biased  



decisionmaking process is in itself a constitutional injury . . . "65 and (2) the Commission  

                                                                                                   



will use the time required to exhaust administrative remedies to injure Gillam.  But the  

                                                                                                              



superior   court   only   found   fault   with   Gillam's   failure   to   utilize   the   available  

                                                                                                                



administrative  recusal  procedures.  As explained  above, those procedures anticipate  

                                                                                



situations in which bias may necessitate recusal, but they still require the agency itself  



                                           66  

to make that determination.                    Gillam's second contention is purely speculative.  



                     Thus, the superior court did not abuse its discretion when it held Gillam had  



failed to show that exhaustion of administrative remedies was certain to be futile.  We  

                                                                                                  



           62        Beard v. Baum , 796 P.2d 1344, 1349 (Alaska 1990).  



           63        See supra note 50.  



          64         Hymes v. DeRamus , 222 P.3d 874, 883 (Alaska 2010) (quoting                                         Bruns v.  



Municipality of Anchorage , 32 P.3d 362, 371 n.46 (Alaska 2001)).  



          65         United Church of the Med. Ctr. v. Med. Ctr.  Comm'n, 689 F.2d 693, 701  

                                                                                    

(7th Cir. 1982).  



           66        See supra note 50.  



                                                                -17-                                                          6978
  


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

therefore affirm the superior court's dismissal of Gillam's Alaska constitutional claim  



for failure to exhaust administrative remedies.  



                           

          B.	      The Superior Court Did Not Err By Granting Summary Judgment  

                   For Lack Of Ripeness As To Gillam's Federal Constitutional Claim.  



                   The superior court also granted summary judgment for lack of ripeness,  



                                                                             

reasoning that Gillam's injury is merely prospective. Ripeness "depends on 'whether . . .  



there  is  a  substantial  controversy,  between  parties  having  adverse  legal  interests,  of  

sufficient immediacy and reality to warrant the issuance of a declaratory judgment.' "67  



In particular, this court "examine[s] 'the fitness of the issues for judicial decision' and  



                                                                                              68  

'the hardship to the parties of withholding court consideration.' "                               



                   Only Gillam's federal constitutional claim remains after our exhaustion  



                                                                  

analysis.  Accordingly, our ripeness inquiry applies only to interests protected by the  



Fourteenth Amendment to the United States Constitution - namely, the right not to be  



                                                                                            69  

                                                                                                Gillam is correct to  

deprived of life, liberty, or property without due process of law. 



                                                                                                                   

point out that "[s]ubmission to a fatally biased decisionmaking process is in  itself a  



                               70  

                                                                                                        

constitutional injury."             Indeed, "[a] fair trial in a fair tribunal is a basic requirement of  



          67       State v. Am. Civil Liberties Union of Alaska                    , 204 P.3d 364, 369 (Alaska  



2009) (alteration in original) (quoting                Brause v. State, Dep't of Health & Soc. Servs., 21  

P.3d 357, 359 (Alaska 2001)).  



          68	      Id. (quoting Brause , 21 P.3d at 359).  



          69       U.S.  CONST . amend. XIV,  1; see also  Zinermon v. Burch                          , 494 U.S. 113,  



126  (1990)  ("In  procedural  due  process  claims,  the  deprivation   by   state  action  of  a  

constitutionally   protected   interest   in   life,   liberty,   or   property   is   not   in   itself  

unconstitutional; what is unconstitutional is the deprivation of such an interest without  

due process of law." (emphasis in original) (internal quotation marks omitted)).  



          70       See United Church of the Med. Ctr., 689 F.2d at 701.  



                                                           -18-	                                                     6978
  


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

                    71  

due process."           In evaluating a procedural due process claim, a court must therefore  



examine "the procedural safeguards built into the statutory or administrative procedure  



of effecting the deprivation, and any remedies for erroneous deprivations provided by  



                             72  

                                 Here, no hearing has occurred, and thus Gillam's injury - for  

statute or tort law." 

federal due process purposes - is purely prospective.73  



                                                                                                              

                    The Ninth Circuit's decision in Standard Alaska Production Company v.  



Schaible is directly relevant to evaluating the ripeness of Gillam's federal constitutional  



         74  

                                                                                                             

claim.         There,  the  State  of  Alaska  filed  suit  in  state  court  against  a  group  of  oil  



producers, seeking to recover from an alleged underpayment of royalties owed to the  



        75  

                                                                                  

State.       The producers filed suit in federal court under section 1983 for injunctive and  



declaratory  relief  against  the  state  court  proceedings,  alleging  that  they  would  be  



                                                                                    

deprived of their right to an impartial tribunal because, as Permanent Fund Dividend  



                                                                                                  

recipients, all potential judges and jurors in the state courts would have a direct interest  



          71        Stivers  v.  Pierce,   71  F.3d  732,   741  (9th  Cir.   1995)  (quoting  In  re  



Murchison , 349 U.S. 133, 136 (1955)) (internal quotation marks omitted).  



          72        Zinermon, 494 U.S. at 126.  



          73  

                                                     

                    Gillam asserts that his alleged injuries are not merely prospective, but have  

already occurred or are ongoing.  In particular, he contends that: (1) the Commission  

staff accepted the Natwick complaint even though it was technically deficient; (2) during  

the Natwick investigation, the Commission staff made unreasonable document requests;  

                                                                        

and (3) the Commission staff has already contacted the SEC in an attempt to ruin Gillam  

                                            

and his business.  But these injuries relate solely to the investigative stage of the Natwick  

matter,   and   accordingly,   are   relevant   only   in   the   context   of   Gillam's   Alaska  

constitutional claim regarding "fair and just treatment in the course of legislative and  

                               

executive investigations."  Alaska Const. art. I,  7.  



          74        874 F.2d 624 (9th Cir. 1989).  



          75        Id. at 625.  



                                                             -19-                                                       6978
  


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

                               76  

                                    

in the case's outcome.             The federal district court dismissed the oil producers' case on  



ripeness  grounds,  and  the  Ninth  Circuit  affirmed,  noting  that  the  producers  had  not  



attempted to use Alaska's judicial disqualification procedures to avoid potential conflicts  



and had not demonstrated that the procedures were "inadequate to resolve the issue of  



        77  

bias."       



                   Like the plaintiffs in Standard Alaska Production, Gillam has not taken  



advantage of the procedures available to prevent his "[s]ubmission to a fatally biased  



                                    78  

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



                                                                                                  79  

"it is claimed that a fair and impartial hearing cannot be accorded."                                 Similarly, the  



Commission's regulations provide for disqualification of a Commissioner who is "unable  



                                                 

to participate in a decision in an unbiased manner so as to reach a fair and impartial  



              80  

                                                    

decision."        Accordingly, Gillam's procedural due process claim is only ripe if he can  

show that this procedure is "inadequate to resolve the issue of bias."81  



                   Gillam  raises  various  arguments  as  to  why  the  APA's  disqualification  



process  is  inadequate.    For  instance,  Gillam  argues  that  the  Commission  will  be  an  



                                                

ineffective  investigator  because  "the  Commissioners  do  not  have  any  specialized  



         76        Id. at 625-26.
  



         77        Id. at 629; see also id. at 626, 630.
  



         78        See United Church of the Med. Ctr., 689 F.2d at 701.
  



         79        AS 44.62.450(c).
  



         80        2 AAC 50.835. 
 



         81        Standard Alaska Prod. Co., 874 F.2d at 629; see also  District of Columbia  



v. Craig, 930 A.2d 946, 966-67 (D.C. Cir. 2007) (holding that procedural due process  

claims  regarding  tax  assessments  were  unripe  because  plaintiffs  still  were  in  the  

administrative  review  process  and  "ha[d]  not  yet  allowed  the  statutorily-prescribed  

process to run its course").  



                                                          -20-                                                     6978
  


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

knowledge with regard to personnel issues."  But AS 44.62.450(c) charges all agencies  

                                                                                                



under the purview of the APA with deciding recusal issues as they arise, regardless of  



the agencies' standard functions.   



                                              

                   Similarly, Gillam argues that because of the Commissioners' bias, they  



                                                                                   

"necessarily cannot decide if they, and the Staff carrying out their policy, are biased."  



                                                                                                   

But as discussed above, the statutory scheme anticipates precisely the kind of allegation  



                                                                                         

at issue here, and does not allow a Commissioner to vote on a request for his or her own  

                       82  And although, as Gillam points out, the APA may not specifically  

disqualification.                                                                              



address staff misconduct, Gillam has presented no evidence that the Commissioners are  



unwilling to evaluate his allegations regarding Dauphinais's bias.  Because Gillam has  

                                                                                                



not  shown  the  disqualification  process  to  be  facially  inadequate,  the  superior  court  



                                 

cannot know whether the process will be inadequate as applied until it has been given  



a chance to work.  



                                

                   Finally, we share the superior court's concerns regarding the lack of factual  



                                                                                                 83  

development, which the administrative process would help address.    As the superior  



court explained:   



                                                               

                   [F]urther factual development will be valuable should a court  

                   need to address the issues again on appeal.  For example, Mr.  

                   Dauphinais  denies  that  the  conversation  which  forms  the  

                   basis for much of Mr. Gillam's complaint occurred as Mr.  

                   Gillam claims.  The [Commission] has the time, resources,  

                                                                       

                   and expertise to quickly investigate this matter. . . . Likewise,  

                   the  commissioners  deny  that  Mr.  Dauphinais  pursued  his  

                   alleged  bias  with  their  encouragement,  approval,  or  even  



          82       See supra notes 49 & 50 and accompanying text.   



          83       As we noted in Brause , among the factors we look to in evaluating the  



ripeness of a claim is "the need for further factual development to aid decision."  21 P.3d  

                                                                                          

357, 360 (Alaska 2001) (internal quotation marks omitted).  



                                                           -21-                                                        6978  


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

                    knowledge.  Allowing the commissioners the opportunity to  

                                                              

                     consider  and  rule  on  the  matter  and  then  inspecting  that  

                                                                                

                     administrative record is preferable, in  this court's view, to  

                                                                              

                    hauling the commissioners into court at the outset as a means  

                    to test their impartiality.  



                                                                                           

Gillam argues that "[t]he factual development desired by the trial court was possible, and  



                                                                                                               

should have been obtained, by ruling on the pending discovery motions, a continuance  



               

to allow further discovery, and an evidentiary hearing."  But this argument does not  

address the view that the facts would be better developed at the agency level.84  



                                                                      

                     Gillam has not been subject to a hearing in the Natwick matter and has not  



availed  himself  of  the  process  for  ensuring  that  he  receives  a  "fair  trial  in  a  fair  



               85  

tribunal."         Because Gillam has not shown that process to be inadequate, his claim of  



                                                                                           

tribunal bias is not fit for judicial decision.  We therefore affirm the superior court's  



decision to dismiss Gillam's section 1983 claim for lack of ripeness.  



          C.	        The Superior Court Did Not Err By Failing To Consider And Grant  

                     Gillam's Request To Conduct Additional Discovery.  



                                 

                     Gillam  argues  the  superior  court  should  not  have  granted  summary  



                                                                                                                  86  

judgment  when  there  was  a  pending   request  for  additional  discovery.                                         Gillam's  



                                                                                                           

argument relies on Alaska Rule of Civil Procedure 56(f), which states: "Should it appear  



          84         Gillam also argues the court improperly "considered potential delay to the  



Natwick investigation due to continued proceedings before the [s]uperior [c]ourt."  But  

                                          

the superior court merely noted its fear that, over the course of judicial proceedings, "the  

                                                                                                          

facts giving rise to the initial complaint may be obscured."  This is a reasonable concern,  

                                   

and one that does not evidence any desire on the part of the superior court to "rush" the  

                                                                                                                 

Natwick proceeding, but rather to preserve its adjudicability.  



          85  

                                                                     

                    See  Stivers  v.  Pierce,  71  F.3d  732,  741  (9th  Cir.  1995)  (quoting In  re  

Murchison , 349 U.S. 133, 136 (1955)) (internal quotation marks omitted).  



          86         Gillam also takes issue with Hickerson's and Dauphinais's requests to stay  



discovery but provides no argument as to why their requests were improper.  



                                                               -22-	                                                       6978
  


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

from the affidavits of a party opposing the motion [for summary judgment] that the party               



cannot  for  reasons  stated  present  by  affidavit  facts  essential  to  justify  the  party's  



                                                                                                             

opposition, the court may refuse the application for judgment," order a continuance, or  



                                                                                           

take similar such action.  But to benefit from the rule, a party "must unambiguously  



                                                           87  

request relief on Rule 56(f) grounds."                          



                     Here, Gillam "reserve[d] the right to seek an ARCP 56(f) continuance" but  



                                                                                     

appears never to have followed through.  He argues that he "made it clear [he] was  



                                                                                          

seeking  a  continuance  to  conduct  necessary  discovery  to  defend  against  summary  



judgment," but points to nothing in the record to support his claim.  The superior court  



cannot have abused its discretion where Gillam failed to invoke Rule 56(f).  



V.         CONCLUSION  



                     The judgment of the superior court is AFFIRMED.  



           87        Mitchell v. Teck Cominco Alaska Inc. , 193 P.3d 751, 758 (Alaska 2008).  



                                                                -23-                                                              6978  

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