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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Seybert v. Alsworth (2/5/2016) sp-7079

Seybert v. Alsworth (2/5/2016) sp-7079

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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  



VICTOR  SEYBERT,  JOHN  HOLMAN,      )
  

KIMBERLY  WILLIAMS,  GEORGE  G.                                  )     Supreme  Court  No.  S-15600
  

JACKO,  and  RICK  DELKITTIE  SR.,                               )
  

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

                              Petitioners,                       ))  

                                                                 )                         

                                                                       O P I N I O N  

          v.                                                     )  

                                                                

                                                                                                             

                                                                  )    No. 7079 - February 5, 2016  

                                                                

GLEN ALSWORTH SR., and                                            )
  

                                                        

                                                                

LORENE "SUE" ANELON,                                              )
  

                                                                 )
  

                              Respondents.                       )
  

                                                                 )
  



                                                                                                             

                    Petition for Review from the Superior Court of the State of  

                                                                                                        

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

                    Judge.  



                                                                                                             

                    Appearances:   Timothy A.  McKeever,  Holmes  Weddle  &  

                                                                                                  

                    Barcott,  Anchorage,  for Petitioners.   Rebecca  J.  Hozubin,  

                                                                                                           

                    Hozubin,  Moberly,  Lynch  &  Associates,  Anchorage,  for  

                    Respondents.  



                                                                                                    

                    Before: Stowers, Chief Justice, Winfree and Bolger, Justices.  

                                                                        

                     [Fabe and Maassen, Justices, not participating.]  



                                      

                    BOLGER, Justice.  



I.        INTRODUCTION  



                                                                                                                              

                    A group of Lake and Peninsula Borough voters filed suit against two local  



                                                                                                                                

elected officials, alleging variousviolationsofstate and local conflict of interest laws and  


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

 the common law conflict of interest doctrine.                                                                                                                                                                                                   The elected officials moved for summary                                                                                                                                     



judgment on the ground that the voters failed to exhaust administrative remedies.  The                                                                                                                                                                                                                         



  superior court granted the motion and stayed the proceedings so that the Alaska Public                                                                                                                                                                                                                                                                                                                                                    



  Offices Commission (APOC) could review several of the voters' claims. In doing so the                                                                                                                                                                                                                                                                                                                                                                       



  court relied in part on case law involving the separate doctrine of primary jurisdiction,                                                                                                                                                                                                                                                                     



 which allows a court to stay proceedings to give the relevant administrative agency an                                                                                                                                                                                                                                                                                                                                                                          



 initial pass at the claims.                                                                                                         We reverse the superior court's order because the voters were                                                                                                                                                                                                                                                  



 not   required   to   exhaust   administrative   remedies   and   because   the   order   staying   the  



 proceedings cannot be affirmed on independent grounds.                                                                                                                                                                                                           



 II.                                 FACTS AND PROCEEDINGS                                                         



                                                                         The   petitioners   -   Victor   Seybert,   John   Holman,   Kimberly  Williams,  



  George G. Jacko, and Rick Delkittie Sr. (collectively "Seybert") - are registered voters                                                                                                                                                                                                                                                                                                                                                    



 in the Lake and Peninsula Borough and jointly sued Glen Alsworth, Sr. and Lorene                                                                                                                                                                                                                                                                                                                                                      



  "Sue" Anelon. Alsworth                                                                                                             has served as the borough mayor since the borough's formation  



 in 1989 and is a voting member of the borough assembly. Anelon was a voting member                                                                                                                                                                                                                                                                                                                                                



  of the borough assembly during the time period relevant to Seybert's complaint, but she                                                                                                                                                                                                                                                                                                                                                                    



 lost her reelection bid in November 2012.                                                                                                                                                       



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



  Seybert alleged numerous acts and omissions by Alsworth and Anelon while acting as                                                                                                                                                                                                                                                                                                                                                                               



  elected borough officials, including failing to disclose conflicts of interest with their                                                                                                                                                                                                                                                                                                                                                         



 private business enterprises, taking action in their official roles related to matters on                                                                                                                                                                                                                                                                                                                                                                     



 which   they   had   personal   and   business   interests,   and   failing   to   fully  and  properly  

                                                                                                                                                                                                                   1  Based on these allegations, Seybert's amended  

  complete required financial disclosures.                                                                                                                                                                                                                                                                                                                                                                                    



                                     1                                  For amoredetailed recitationofSeybert's allegations, seeour prior opinion  

                                                                                                                                                                                                                                                                                                                                                                                                                                      

 in this case, Alsworth v. Seybert , 323 P.3d 47, 50-54 (Alaska 2014).  

                                                                                                                                                                                                                                                                                                                                        



                                                                                                                                                                                                                                 -2-                                                                                                                                                                                                                                          7079  


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

complaint included five counts: counts one through three alleged violations of Alaska's                                                                                                



                                                                                                                                                                                        2  

conflict of interest laws codified at AS 39.50 and the implementing regulations.                                                                                                           Count  

                                                                                                                               3  and the common law conflict of  

                                                                                                                                                                                                      

                                                                                                                    

four alleged violations of the borough charter and code 

                                        4    And count five alleged violations of Alaska's statutory prohibition  

interest doctrine.                                                                                                                                                               

                   



against "[u]nfair methods of competition and unfair or deceptive acts or practices in the  

                                                                                                                                                                                                    

conduct of trade or commerce."5                                                   Seybert sought various remedies including a court  

                                                                                                                                                                                             



order enjoining the officials from further violations of these laws; forcing them to forfeit  

                                                                                                                                                                                             



                2              See   AS   39.50.020,   .030   (requiring   public   officials   to  file   financial  



disclosure   forms   and   outlining   certain   details   of   those   reporting   requirements);  

AS          39.50.060                   (providing                    penalties                for        not         disclosing                   required                information);  

AS 39.50.090 (prohibiting a public official from "us[ing] 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"); 2 Alaska Administrative Code (AAC) 50.680-.700                                                                                         

(2011)   (outlining   certain   details   of   the   statutory   reporting   requirements   codified   at  

AS 39.50).   



                3              See Lake & Peninsula Borough (L&PB) Charter art. 15,  15.01(A) ("No  

                                                                                                                                                                                               

elected [borough] official may vote on any question on which he has a substantial  

                                                                                                                                                                                 

financial interest."); L&PBCode02.20.090 ("Amember ofthe[borough]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.").  

                                                                                         



                4              See  Griswold  v.  City  of  Homer,  925  P.2d  1015,  1026  (Alaska  1996)  

                                                                                                                                                                                            

("Under common law [conflict of interest doctrine], 'the focus . . . [is] on the relationship  

                                                                                                                                                                                

between the public official's financial interest and the possible result of the official's  

                                                                                                                                                                                      

action, regardless of the official's intent.' " (second and third alterations in original)  

                                                                                                                                                                                      

(quoting Carney v. State, Bd. of Fisheries, 785 P.2d 544, 548 (Alaska 1990))); see also  

                                                                                                                                                                                                 

Carney, 785 P.2d at 548 (concluding that AS 39.50.090 does not abrogate the common  

                                                                                                                                                                                       

law conflict of interest doctrine).  

                                                       



                5              See AS 45.50.471.  

                                                                             



                                                                                                  -3-                                                                                          7079
  


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

 their offices; voiding all unlawful transactions; compelling them to disgorge all monies                                                                                                                   



 received through such transactions; and requiring them to pay penalties and fines under                                                                                                                        



 AS 30.50, attorney's fees, and punitive damages.                                                                                



                                   Alsworth and Anelon moved for summary judgment on the grounds that                                                                                         

                                                                                                                              6  The superior court granted summary  

 Seybert failed to exhaust administrative remedies.                                                                                                                                                    



judgment in part, finding that: (1) the exhaustion doctrine applied to claims brought  

                                                                                                                                                                                                          



 under  AS  39.50  and  the  associated  regulations;  (2)  Seybert  had  not  exhausted  

                                                                                                                                                                                                   



 administrative remedies; and (3) this failure to exhaust administrative remedies was not  

                                                                                                                                                                                                                       



 excused.  Accordingly the court granted summary judgment for Alsworth and Anelon  

                                                                                                                                                                                                           



 with respect to counts one through three. The superior court also concluded that Seybert  

                                                                                                                                                                                                           



 was not required to exhaust administrative remedies with respect to counts four and five,  

                                                                                                                                                                                                                   



but it noted that those counts rested on "a similar enough factual predicate that judicial  

                                                                                                                                                                                                           



 economy  would  be  best  served  by  hearing  all  counts  at  once  after  APOC  has  the  

                                                                                                                                                                                                                      



 opportunity to review the AS 39.50 and 2 AAC 50 allegations."   The court invited  

                                                                                                                                                                                                            



 further briefing from the parties as to "whether these remaining counts should be stayed  

                                                                                                                                                                                                              



 or proceed to trial."  

                                                     



                                   Seybert moved for reconsideration of the grant of summary judgment,  

                                                                                                                                                                                                    



 arguing that, because AS 39.50.100 expressly provides for a private right of action to  

                                                                                                                                                                                                                         



 enforce thestatutes at issue, exhaustion of administrative remedies could not be required.  

                                                                                                                                                                                                                                 



 Seybert further noted that in concluding exhaustion was required, the superior court  

                                                                                                                                                                                                                 



 reliedprimarily upon caselawinvolving thedoctrineofprimary jurisdiction under which  

                                                                                                                                                                                                               



                  6                Prior to this motion for summary judgment, the superior court issued a                                                                                                                        



preliminary injunction imposing various restrictions on Alsworth's and Anelon's use of                                                                                                                                    

borough resources for their legal defense and barring them from speaking about the                                                                                                                                    

 Pebble Mine project in their official capacities.                                                                              Alsworth , 323 P.3d at 52-53.                                                      We  

 granted a petition for review and vacated that injunction in  Alsworth v. Seybert .   Id . at  

 54-55.  



                                                                                                            -4-                                                                                                   7079
  


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

"a court may, in appropriate cases, stay or dismiss pending litigation so as to enable a                                                                                   



proper agency to initially pass upon an aspect of the case calling for administrative                                                            



                      7 

                                                                                                                                                                

expertise."               Seybert argued that this doctrine was inapplicable because APOC lacked  



                                                                                                                 8  

                                                                                                                                                                        

                                                                                                                     Seybert also claimed that the  

" 'exclusive' jurisdiction" over enforcement of AS 39.50. 



                                                                                                                                                                       

superior court erred in finding that "robust discovery" would be available through the  



                                                                                                                                                              

APOC process and argued that "the remedies [he] requested" were unavailable through  



                                               9  

                                                   

administrative avenues. 



                                                                                                                                              

                           Thesuperior court summarily denied Seybert's motion for reconsideration,  



                                                                                                                                                                        

and Seybert filed a petition for interlocutory review with this court.   In response we  



                                                                                                                                                                         

issued an order requesting clarification from the superior court regarding whether, by  



                                                                                                                                                                         

granting summary judgment, it "intended to dismiss counts one,  two, and three, or  



                                                                                                                                                                        

whether  [it]  intended  to  stay  these  counts  pending  referral  of  [those]  claims  to  



                    10  

                                                                                                                                                                      

[APOC]."                   The superior court clarified that it "intended to . . . stay[]  [counts one  



             7             SeeGreater              AnchorageAreaBoroughv.CityofAnchorage                                                      , 504 P.2d 1027,       



 1032   (Alaska 1972),                       overruled   on   other   grounds by City & Borough                                                    of Juneau              v.  

Thibodeau,  595 P.2d 626 (Alaska 1979).                               



             8             See id. at 1032-33 ("In order for such a judicial reference to be valid, at  

                                                                                                                                                                          

least some part of the case must fall within the exclusive jurisdiction of the administrative  

                                                                                                                                                  

agency.").  



             9             Seybert also submitted an affidavit from his counsel of record, Timothy A.  

                                                                                                                                                                         

McKeever, attesting that he had "handled a large number of matters before [APOC]" and  

                                                                                                                                                                       

detailing various limitations on the available administrative remedies.  

                                                                                                                                             



              10           Seybert v. Alsworth, No. S-15600 (Alaska Supreme Court Order, Sept. 4,  

                                                                                                                                                                          

2014).  



                                                                                    -5-                                                                            7079
  


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

through three], rather than dismiss[] them, so that [it] would retain the ability to '[hear]                                                                         



 all the counts at once after APOC has the opportunity to review the AS 39.50 and                                                                                         

 2 AAC 50 allegations.' "                          11  



                                                                                                                                                               

                            We then granted Seybert's petition for review on the following issues:  



                                                                                                                                                   

                            (1) whether it was an error of law to rule that exhaustion of  

                                                                                                                                           

                            administrative remedies was required for the claims under  

                                                                                                                                            

                            consideration; (2) whether it was an error of law or an abuse  

                                                                                                                                                    

                            of discretion to require the petitioners to bring these claims to  

                                                                                                                      

                            [APOC]; and (3) alternatively, whether the superior court's  

                                                                                                                                     

                            order   can  be  affirmed  under  the  doctrine  of  primary  

                                                      

                           jurisdiction.  



                                                     

 III.         STANDARD OF REVIEW  



                                                                                                                                                                

                            "We review summary judgment rulings de novo and may affirm summary  

                                                                                                   12   The question of whether a litigant is  

                                                                                                                                                                               

                                                                                   

judgment on any basis appearing in the record." 



                                                                                                                                                                               13  

required to exhaust administrative remedies is a legal question that we review de novo.  

                                                                                                                                                                                    



Under theprimary jurisdiction doctrine, asuperior courtenjoys discretion in determining  

                                                                                                                                                          

whether to stay or dismiss a claim.14   We will affirm on independent grounds not relied  

                                                                                                                                                                       



 on by the superior court only when those grounds are established by the record as a  

                                                                                                                                                                                

matter of law.15  

                     



              11            Seybert v. Alsworth                      , No. 3DI-12-59 CI (Alaska Super., Sept. 25, 2014)                                               



 (order clarifying order granting summary judgment).                                                           



              12           Angleton v. Cox , 238 P.3d 610, 614 (Alaska 2010) (citation omitted).  

                                                                                                                                                        



              13            Winterrowd v. State, Dep't of Admin., Div. ofMotor Vehicles, 288 P.3d446,  

                                                                                                                                                                          

449 (Alaska 2012).  

                           



              14            See Matanuska Elec. Ass'n v. Chugach Elec. Ass'n, 99 P.3d 553, 559-60  

                                                                                                                          

 (Alaska 2004).  

                                 



              15            See Riley v. Simon, 790 P.2d 1339, 1343 n.7 (Alaska 1990) ("[A] judgment  

                                                                                                                                                                

                                                                                                                                                       (continued...)  



                                                                                      -6-                                                                               7079
  


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

IV.	      DISCUSSION  



                                                                                                                        

          A.	       It Was An Error For The Superior Court To Conclude That Seybert  

                                                                                           

                    Was Required To Exhaust Administrative Remedies.  



                                                                                                                             

                    "In general, a party may not seek relief in a judicial forum until that party  



                                                                                          16  

                                                                                                                        

has exhausted his or her available administrative remedies."                                  Thus if a statute provides  



                                                                                         17  

                                                                                             The statute here provides  

administrative remedies, exhaustion generally is required. 



                                                                                                                     

an  administrative  remedy  for  the  violations  Seybert  alleges.                                Under  AS  39.50.055  



                                                                                                                         

("Administrative complaints"), "[a] person may file a written complaint [to APOC]  



                                                                                                                           

alleging a violation of [AS 39.50] has occurred or is occurring."  However the statute  



                                                                                                                          

also provides for a private right of action to enforce these same provisions.   Under  



                                                                                                                             

AS39.50.100 ("Enforcement by privatecitizens"),"[a]qualifiedAlaskavoter may bring  



                                                                                                                         

a civil action to enforce any of the sections of [AS 39.50]." Under this statutory scheme,  



                                                                                                                    

requiring a plaintiff to first exhaust administrative remedies would read a significant  



                                                                                                                               

prerequisite into filing a citizen suit.   Because the text of the statute is silent in this  



                                                                                                                         

regard, we will not infer such a requirement absent some indicia of legislative intent.  



                                                                                                                               

                    Nothing in the legislative history of either AS 39.50.100, the citizen suit  



                                                                                                                                

provision, or AS 39.50.055, the administrative complaint provision, suggests that the  



                                                                                                                          

legislature  intended  to  require  plaintiffs  to  exhaust  administrative  remedies  before  



          15        (...continued)  



                                                                                                                                 

can be affirmed 'on any basis established by the record, whether or not it was relied on  

                                                                                                                               

by the trial court or even raised before the trial court.' " (quoting Demoski v. New, 737  

                                                                                                                            

P.2d 780, 786 (Alaska 1987))); McGee v. State, 614 P.2d 800, 805 n.10 (Alaska 1980)  

                                                                                                                         

("[A] correct ruling of law by a trial court may be affirmed, regardless of the reasons  

                                                                                                                               

advanced, if there exist independent grounds which, as a matter of law, support the trial  

                                   

court's conclusion.").  



          16         Winterrowd, 288 P.3d at 450.  

                                                            



          17	       Id .  



                                                                -7-	                                                        7079
  


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

commencing a citizen suit.                               The citizen suit provision was enacted as part of the 1974                                                 



                                                                                                                                  18  

voter initiative that established Alaska's conflict of interest law.                                                                              

                                                                                                                                        The administrative  



                                                                                                                                                                  

complaint provision was not added until 2008, when the legislature amended the statute  

                                                                                                                 19    The legislature enacted the  

                                                                                                                                                                        

                                                                                            

to include the language now codified at AS 39.50.055. 



complaint provision in a bill that made several changes to the state's campaign finance,  

                                                                                                                                                               

lobbying, and conflict of interest rules.20                                              According to a staff person for the bill's  

                                                                                                                                                                    



sponsor, the bill was aimed at "strengthen[ing] the oversight of Alaska's ethics laws by  

                                                                                                                                                                          



allowing watchdog agencies more time to receive complaints and properly investigate  

                                                                                                                                      

alleged violations."21                       Accordingly the bill extended the statute of limitations from one  

                                                                                                                                                                       



to five years for alleged violations of campaign finance rules and from two to five years  

                                                                                                                                                                    

for  alleged  violations  of  legislative  ethics  rules.22                                                  It  also  imposed  more  stringent  

                                                                                                                                                            

                                                                                                         23     The bill also added two other  

requirements for  the retention of lobbyist records.                                                                                                                

                                                                                         



administrative complaint provisions to the statute.  Each provision provides that "[a]  

                                                                                                                                                                       



person may file a written complaint" alleging a violation of the state's lobbying and  

                                                                                                                                                   



              18           1974 Initiative Proposal No. 2,  1 (1974);                                              see also Warren v. Thomas                                ,  



568 P.2d 400, 400 (Alaska 1977).                                            We refer to AS 39.50 as Alaska's                                          "conflict of   

interest"lawthroughout, although it is nowtitledthePublicOfficial FinancialDisclosure                                                                     

statute.   Grimm v. Wagoner                             , 77 P.3d 423, 425 & n.1 (Alaska 2003).                             



              19           Ch. 95,  10, SLA 2008.  

                                                                              



             20            See ch. 95, SLA 2008.  

                                                             



             21            Minutes, H. Fin. Comm. Hearing on H.B. 281, 25th Leg., 2d Sess. 2:33  

                                                                                                                                                                     

(Mar. 31, 2008) (testimony of Mike Sica, staff to Rep. Bob Lynn, bill sponsor).  

                                                                                                                                              



             22            Ch. 95,  3, 8, SLA 2008 (amending the applicable statute of limitations  

                                                                                                                                                         

for violations of AS 15.13 and AS 24.60).  

                                                                                       



             23            Id .  4.  

                                     



                                                                                    -8-                                                                             7079
  


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

                                                                                                                                       24  

legislativeethics          rules,respectively, and each includes a five-year statuteoflimitations.                                          



                                                                                                                                   

The legislature made only one change to the citizen suit provision: the addition of a five- 



                                                                                                                                   25  

                                                                                                                      

year statute of limitations consistent with the new administrative remedy sections. 



                                                                                                                             

                     The legislative history of the administrative complaint provision contains  



                                                                                                                                        

no indication that a plaintiff must exhaust administrative remedies before bringing a  



                                                                                                                                     

citizen suit.  Instead the House Judiciary Committee discussion about the citizen suit  



                                                                                                    

provision supports the contrary view.  During that discussion a legislator asked why a  

                                                         26   Chief Assistant Attorney General Jan DeYoung  

citizen would "fil[e] a civil action."                                                  



responded by offering an example of a citizen suit challenging an election that claimed  

                                                                                                                                            

an inaccuracy in a candidate's conflict of interest statement.27   The legislator then noted  

                                                                                                                                  



that there were "two courses of action available" - "one [that] pertains to the ability  

                                                                                                                                



of . . . APOC to levy a penalty, and the other [that] pertains to the ability of a person to  

                                                                                                                                       

bring a civil suit."28           Later in the hearing, another legislator asked DeYoung "whether,  

                                                                                                                           



if he were to file a complaint and the APOC chose not to act on it, he could then bring  

                                                                                                                                  

                                                                             29   DeYoung clarified:  

a civil action in order to force the APOC to act."                                                 

                                                                       



                      [T]he action referenced in AS 39.50.100 is a direct action  

                                                                                                           

                     brought by a citizen, and would result in a proceeding in  

                                                                                                                  

                     superior  court.  However,  if  a  complaint  is  filed  with  the  

                                                                                                                

                     APOC but the complainant is not satisfied with the APOC's  

                                                                                                        



           24        Id .    7,  9-10.  



           25        Id .     11.  



           26        Minutes,  H.  Judiciary  Comm.  Hearing  on  H.B.  281,  25th  Leg.,  2d   Sess.  



2:52-2:59  (Feb.  8,  2008)  (statement  of  Rep.  John  Coghill).  



           27        Id .  (testimony  of  Jan  DeYoung,  Chief  Assistant  Attorney  General).  



           28        Id .  (statement  of  Rep.  John  Coghill).  



           29        Id .  at  3:15-3:19  (statement  of  Rep.  Mike  Doogan).  



                                                                   -9-                                                            7079
  


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

                             action, there is an                    appeal  process available                              - that would be                 

                             an appeal into court.                        [30]   



Nothingin thecommittee's subsequent discussionsuggestedthat                                                                                thelegislatureintended          



to depart from the scheme DeYoung described:                                                                 parallel   administrative and judicial                          



remedies from which a plaintiff may elect.                                        



                             Alsworth and Anelon make several arguments why exhaustion is required                                                                         



notwithstanding the citizen suit provision.                                                   First they highlight case law describing the                                             



purpose of the exhaustion doctrine as "allow[ing] an administrative agency to perform                                                                                       

                                                                                            31    and  claim that  APOC  had  the  expertise  

functions   within   its   special   competence"                                                                                                                         



necessary  to  investigate  Seybert's  allegations.                                                             But  the  question  of  whether  the  

                                                                                                                                                                 



allegations fell within the agency's "special competence" would only apply in a much  



closer case where statutory guidance on the available remedies was absent.  Here the  

                                                                                                                                                                                      



legislature clearly provided for a citizen suit to remedy grievances.  

                                                                                                                                                    



                             SimilarlyAlsworthandAnelon contend that thecitizensuit provision "does  

                                                                                                                                                                                 



not solely occupy the field" and "did not take away the administrative remedies."  In  

                                                                                                                                                                                        



particular they highlight APOC's statutory authority to determine fines for the failure to  

                                                                                                                                                                                         

"file a properly completed and certified [conflict of interest] report."32                                                                                        While these  

                                                                                                                                                                                 



contentions  are  true,  allowing  a  party  to  pursue  a  private  cause  of  action  without  

                                                                                                                                                                            



exhausting administrative remedies does not "take away" a party's  ability  to file a  

                                                                                                                                                                                          



complaint under AS 39.50.055 or APOC's ability to impose fines under AS 39.50.135.  

                                                                                                                                                                                               



               30            Id .   (testimony   of   Jan   DeYoung,   Chief    Assistant   Attorney   General)  



(emphasis added).   



               31            See Ben Lomond, Inc. v. Municipality of Anchorage, 761 P.2d 119, 122  

                                                                                                                                                                         

(Alaska 1988) (quoting  Van Hyning v. Univ. of Alaska, 621 P.2d 1354, 1355 (Alaska  

                                                                                                                                                                            

 1981)).  



               32            AS 39.50.135.  

                                                               



                                                                                          -10-                                                                                    7079
  


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

The   case   law   and   statutes   cited   by   Alsworth   and   Anelon   merely   emphasize   the  



simultaneous availability of the administrative remedy; these cases and statutes do not  



compel us to read an exhaustion requirement into the voters' express provision for a                                                                                                                                                                              



private right of action.                       



                                        NextAlsworthand Anelon highlight                                                                             statutory languagesuggestingthatany                                                                   



fines imposed based on a failure to properly file a conflict of interest report will be                                                                                                                                                                      



"determin[ed]" by APOC, citing AS 39.50.135. They claim that although AS 39.50.100                                                                                                                                                     



may allow a plaintiff to bring a civil suit, "it does not allow for any remedies within that                                                                                                                                                              



civil action, [as] the remedies are strictly within the jurisdiction of [APOC]."  But this   



argument leads to an absurd result:  surely the voters did not intend to create a private                                                                                                                                                     



right of action through which no remedy could be granted. And even if, as Alsworth and                                                                                                                                                                     



Anelon suggest, the determination of fines falls within APOC's exclusive jurisdiction,                                                                                                                                           



a   superior   court  still   could   adjudicate   the   merits   of   a   citizen   suit   and   refer   the  



determination of fines to APOC.                                                                      Here Seybert seeks fines in addition to several other                                                                                            



remedies.   

                                                                                                                                                                                                                                   33 Alsworth  

                                        Finally, citing                            Ben Lomond, Inc. v. Municipality of Anchorage                                                                                                  ,    



and Anelon claim that "exhaustion [is] particularly appropriate" because Seybert raises  

                                                                                                                                                                                                                                                    



both  "issues  that  could  be  determined  by  the  administrative  agency  and  those  that  

                                                                                                                                                                                                                                                         



generally would not."   But in Ben Lomond, the plaintiff sought only one remedy -  

                                                                                                                                                                                                                                                             



monetary damages from the Municipality of Anchorage for revocation of its building  

                                                                                                                                                                                                                                            

permits.34                         A reversal of this initial revocation would have completely resolved the  

                                                                                                                                                                                                                                                           



                    33                   761  P.2d   119  (Alaska   1988).   



                    34                  See  id.  at   121.  



                                                                                                                             -11-                                                                                                                                  7079  


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

                                              35  

plaintiff's concern.                                Here, in contrast, the imposition of fines based on counts one                                                                                 



through three of Seybert's amended complaint - alleging violations of state conflict of                                                                                                                



interest law - would not necessarily have fully resolved Seybert's grievances under                                                                                                           



counts four and five, which alleged violations of the borough charter and Alaska's                                                                                                     



statutory prohibition against "[u]nfair methods of competition and unfair or deceptive                                                                                               

                                                                                                                             36   Thus the fact that Seybert raises  

acts or practices in the conduct of trade or commerce."                                                                                                                                        



claims  both  within  and  outside  of  APOC's  jurisdiction  does  not  alone  trigger  the  

                                                                                                                                                                                                    



exhaustion requirement.  

                            



                                In summary, both the plain language and legislative history of the dual  

                                                                                                                                                                                                 



remedies in AS 39.50 - the citizen suit provision and the administrative complaint  

                                                                                                                                                                                    



provision -showthat exhaustion of administrative remedies is not required here. It was  

                                                                                                                                                                                                  



an error for the superior court to hold that it was required.  

                                                                                                                    



                B.	             The Record Does Not Establish The Doctrine Of Primary Jurisdiction  

                                                                                                                                                                              

                               As An Independent Basis For The Superior Court's Decision.  

                                                                                                                                                                   



                               Even if Seybert were not required to exhaust administrative remedies,  

                                                                                                                                                                                    



Alsworth  and  Anelon  argue that the superior  court had the discretion to apply  the  

                                                                                                                                                                                                    



doctrine of primary jurisdiction to stay the proceedings.  They assert that this doctrine  



provides  an  independent  ground  on  which  to  affirm  the  superior  court's  grant  of  

                                                                                                                                                                                                      



summary judgment.  However we will affirm on independent grounds not relied on by  

                                                                                                                                                                                                      



the superior court only when those grounds are established by the record as a matter of  

                                                                                                                                                                                                       



          37  

                                                                                                                                                                                          

law.           Because the superior court did not make a discretionary decision based on primary  



                35             Id.  at 122.   



                36             See  AS 45.50.471.                            



                37  

                                                                                                                                                   

                               McGee v. State, 614 P.2d 800, 805 n.10 (Alaska 1980).  



                                                                                                 -12-	                                                                                          7079
  


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

jurisdiction, we can affirm on this ground only if the superior court were required as a                                                                                                                                  



 matter of law to stay the proceeding based on primary jurisdiction.                                                                        



                                  Primary jurisdiction is a judicially created prudential doctrine that applies                                                                                            



 "to claims properly cognizable in court [but] that contain some issue within the special                                                                                                                  

 competence of an administrative agency."38  As we have explained, under the primary  



jurisdiction doctrine"a court may, in appropriate cases, stay or dismiss pending litigation  

                                                                                                                                                                                                      



 so as to enable a proper agency to initially pass upon an aspect of the case calling for  

                                                                                                                                                                                                                     

 administrative  expertise."39                                                Such  circumstances  may  arise  "[w]hen  a  case  raises  

                                                                                                                                                                                                             



 questions of fact not within the ordinary experience of courts, or if the case requires the  

                                                                                                                                                                                                                     

 exercise of administrative discretion."40                                                                 The doctrine is based on " 'the need for an  

                                                                                                                                                                                                                      



 orderly  and  reasonable coordination  of the work of agencies and  courts,'  which  is  

                                                                                                                                                                                                                       



 generally best achieved when courts decline to rule 'on a subject peculiarly within the  

                                                                                                                                                                                                                     



 agency's specialized field without first taking into  account what the agency has to  

                                                                                                                                                                                                                       



                 38               Reiter v. Cooper                           , 507 U.S. 258, 268 (1993).                                            



                 39                Greater Anchorage Area Borough v. City of Anchorage                                                                                            , 504 P.2d 1027,            



 1032   (Alaska   1972),   overruled   on   other grounds by City & Borough                                                                                                                of Juneau                   v.  

 Thibodeau, 595 P.2d 626 (Alaska 1979).  

                                                                                        



                  40              Matanuska Elec. Ass'n v. Chugach Elec. Ass'n, 99 P.3d 553, 559 (Alaska  

                                                                                                                                                                                                         

 2004) (alteration in original) (quoting Oil Heat Inst., Inc. v. Alaska Pub. Serv. Corp., 515  

                                                                                                                                                                                                                   

 P.2d 1229, 1233 (Alaska 1973)).  

                                                                  



                                                                                                         -13-                                                                                                   7079
  


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

              41  

offer.' "         Whether to invoke primary jurisdiction is left to the discretion of the superior                                 



court   because   the   doctrine   "is  one   of   prudence,   and   not   an   absolute   jurisdictional  

limitation."42  



                                                                                                                                            

                       Seybert argues that "for the doctrine of primary jurisdiction to apply, 'at  



                                                                                                                         

least some part of the case must fall within the exclusive jurisdiction of the administrative  



                                                                                                                                             

agency,' " relying on our language in  Greater Anchorage Area Borough v. City of  

                    43  This language, read in a vacuum, could suggest that a superior court may  

Anchorage .                                                                                                                              



defer  to  an  agency  only  when  at  least  part  of  a  claim  falls  within  the  agency's  

                                                                                                                                 

exclusive jurisdiction.44                 But this reading is inconsistent with other precedent, which  

                                                                                                                                      



recognizes that superior courts enjoy discretion when deciding whether to defer to an  

                                                                                                                                            

agency.45   As we have noted, the doctrine's "purpose is to help a court decide whether  

                                                                                                                                   



           41         Id .    (citation    omitted)    (quoting    G    &    A    Contractors,  Inc.    v.    Alaska  



 Greenhouses, Inc.             , 517 P.2d 1379, 1383 (Alaska 1974)).               



           42         Id.  



           43          504  P.2d  at   1033.  



           44         See  id.  at  1033-34;  see  also  2  RICHARD  J. PIERCE  JR., ADMINISTRATIVE  LAW  



TREATISE   14.2  at   1191  (5th  ed.  2010)  ("Sometimes  courts  confuse  primary  jurisdiction  

with  exclusive  statutory  jurisdiction.").  



           45         See,  e.g., Matanuska  Elec.,  99 P.3d  at 559-60  ("[T]he primary  agency  

                                                                                                                                    

jurisdiction doctrine is one of prudence, and not an absolute jurisdictional limitation.");  

                                                                                                                           

 G & A  Contractors, Inc., 517 P.2d at  1383 ("This, of course, is hardly to say that the  

                                                                                                                                           

courts  must  in  each  and  every  case  defer  to  an  agency  determination.");  Greater  

                                                                                                                                  

Anchorage  Area  Borough,  504 P.2d  at  1032 ("Under  the  .  .  .  'doctrine of primary  

                                                                                                                                   

jurisdiction,'  a court may, in appropriate cases, stay or dismiss pending litigation so as  

                                                                                                                                             

to  enable  a  proper  agency  to  initially  pass  upon  an  aspect  of  the  case  calling  for  

                                                                                                                                           

 administrative expertise.").  

                                                



                                                                     -14-                                                              7079
  


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

                                                                                                                              46  

 it  should   refrain   from   exercising   its   jurisdiction."      But   in   cases   where   agency  



jurisdiction is exclusive, the court has no jurisdiction to "refrain" from exercising.                                                                                   



                                Seybert correctly asserts that APOC lacked                                                                  exclusive  jurisdiction over   



 alleged violations of Alaska's conflict of interest laws, because AS 39.50.100 expressly                                                                                              



provides for a private right of action to enforce those provisions in court.                                                                                                            But this   



 assertion does not end our inquiry because in a case such as this, in which the superior                                                                                                



 court   and   agency   share   concurrent   jurisdiction,  a   court   may   apply   the   primary  



jurisdiction doctrine to stay its proceedings until the agency reaches a decision.                                                                                    



                                "No           fixed            formula                exists            for         applying                 the         doctrine                of       primary  

                                47     While we have yet to establish a standard for applying the primary  

jurisdiction."                                                                                                                                                                            

jurisdiction doctrine, courts inother jurisdictions typicallyconsider anumberoffactors,48  

                                                                                                                                                                                         



 including  "(1)  the  extent  to  which  the  agency's  specialized  expertise  makes  it  a  

                                                                                                                                                                                                         



preferable forum for resolving the issue, (2) the need for uniform resolution of the issue,  

                                                                                                                                                                                                



 and (3) the potential that judicial resolution of the issue will have an adverse impact on  

                                                                                                                                                                                                       

                                                                                                                                             49     Based on our evaluation  

 the agency's performance of its regulatory responsibilities."                                                                                                                       

                                                                                                      



 of these factors, we conclude that the record does not establish primary jurisdiction as  



 an alternate basis on which to affirm the superior court's decision.  

                                                                                                                                                               



                46              G & A Contractors, Inc.                                  , 517 P.2d at 1383 (emphasis added).                                                      



                47               United States v. W. Pac. R.R. Co., 352 U.S. 59, 64 (1956); see Greater  

                                                                                                                                                                                          

Anchorage  Area  Borough ,  504  P.2d  at  1032  n.17  (citing  W.  Pac.  R.R.  Co. in  its  

                                                                                                                                                                                                      

 discussion about the scope of the primary jurisdiction doctrine).  

                                                                                                                                 



                48              See          Paula              K.         Knippa,                Primary                  Jurisdiction                      Doctrine                  and           the  

                                                                                                                                                                                                  

 Circumforaneous Litigant, 85 TEX.L.R                                                       EV.1289, 1311-12 (2007) (describing the various                                                 

                                                                       

 multifactor   tests   that   the   federal   circuit   courts   of   appeal   apply   in   evaluating   the  

 application of primary jurisdiction doctrine).                                                              



                49              PIERCE, supra note 44, at 1162.  

                                                                                                            



                                                                                                  -15-                                                                                           7079
  


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

                                                   First, by including a citizen suit provision, the legislature evinced its clear                                                                                                                                                                                        



intent to make the courts available to hear alleged violations of Alaska's conflict of                                                                                                                                                                                                                                             



interest   laws.     The   inclusion   of   parallel   citizen  suit   and   administrative   complaint  



provisions indicates that the legislature views the court as a competent and desirable                                                                                                                                                                                                                  



forum in which to bring conflict of interest claims, notwithstanding the authority of                                                                                                                                                                                                                                              



APOC to also hear such claims.                                                                                                Applying the primary jurisdiction doctrine to claims                                                                                                                                 



brought under the citizen suit provision of AS 39.50.100 would subvert the legislature's                                                                                                                                                                                                     



express intent to allow people to enforce Alaska's conflict of interest laws through the                                                                                                                                                                                                                                        



courts, as evident in the plain text of AS 39.50.100.                                                                                                                                                   Because the citizen suit provision                                                             



clearly designates the courts as competent to hear Seybert's conflict of interest claims,                                                                                                                                                                                                                        



the first factor, specialized agency expertise, does not favor deferring to APOC.                                                                                                                                                                                                     



                                                    Second,   there is minimal risk                                                                                        of inconsistent                                                 resolutions of this issue.                                                                           



When the superior court stayed the proceedings, there was no pending administrative                                                                                                                                                                                                  



proceeding   on   Seybert's   claims   before   APOC.     And   in   the   past   APOC   dismissed  

                                                                                                                                                                                                                                            50            In  2010  one  Seybert  

complaints   by   Seybert   that   have   raised  similar   allegations.                                                                                                                                                                                                                                     



petitioner filed a complaint with APOC against Alsworth and another elected official in  

                                                                                                                                                                                                                                                                                                                                     

the  borough  alleging  violations  of  the  conflict  of  interest  law.51                                                                                                                                                                                             APOC ultimately  

                                                                                                                                                                                                                                                                                                   

concluded that no such violations had occurred and dismissed the complaints.52  Further,  

                                                                                                                                                                                                                                                                                                             



                          50                        Other courts have found that an agency's past failure to take any action                                                                                                                                                                                        



counsels against applying the primary jurisdiction doctrine in subsequent cases.                                                                                                                                                                                                                                         See,  

e.g.,  Nat'l Wildlife Fed'n v. Consumers Power Co.                                                                                                                                             , 657 F. Supp. 989, 1001 (W.D. Mich.                                                                                   

 1987),  rev'd on other grounds                                                                                      , 862 F.2d 580 (6th Cir. 1988).                                                              



                          51                        Complaint, Holman v. Alsworth, No. 10-14-POFD (Alaska Pub. Offices  

                                                                                                                                                                                                                                                                                                               

Comm'n Sept. 20, 2010); Complaint, Holman v. Wilder, No. 10-15-POFD (Alaska Pub.  

                                                                                                                                                                                                                                                                                                                           

Offices Comm'n Sept. 20, 2010).  

                                                                                                       



                          52                       Holman v. Alsworth, No. 10-14-POFD at 4 (Alaska Pub. Offices Comm'n  

                                                                                                                                                                                                                                                                                                          

                                                                                                                                                                                                                                                                                         (continued...)  



                                                                                                                                                               -16-                                                                                                                                                      7079
  


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

even if Seybert now filed a complaint with APOC, there is no guarantee that APOC                                                     



                                                       53  

would investigate the allegations.                                                                                                    

                                                           Thus there is little risk that judicial resolution would  



                                          

conflict with a ruling by APOC.  



                                                                                                                                 

                      Third, judicial resolution of Seybert's allegations is unlikely to encroach  



                                                                                                                                  

on APOC's regulatory responsibilities. Seybert's claims do not fall within APOC's  



                                                                                                                                           

regulatory expertise:  Seybert is not challenging regulations promulgated by APOC nor  

                                                                                     54  Further, there is no indication that  

                                                                                                                                           

is Seybert challenging an internal agency procedure. 



APOC is currently involved in rulemaking or in revising the regulations at issue. Rather  

                                                                                                                                      



Seybert's claims arise under existing conflict of interest law and regulations, and courts  

                                                                                                                                      

are well versed in statutory interpretation.55                                Here Seybert simply asks the court to  

                                                                                                                                             



           52         (...continued)  



                                                                                                                                            

Mar. 2, 2011) ("Because the Commission refused to find a violation of the statute in the  

                                                                                                                                         

nearly identical circumstances of the Wilder case, it is inappropriateto concludethat such  

                                                                                                                                     

conduct constituted a violation of the law in this case."); Holman v. Wilder, No. 10-15- 

                                                                                                                                           

POFD at 3 (Alaska Pub. Offices Comm'n Mar. 2, 2011) ("[T]he Commission does not  

                                                                                                                                            

agree that a violation of the statute can be established given the ambiguous nature of the  

                                                                                                                                

reporting requirements and the agency's role in contributing to the [elected official's]  

                                                                                       

confusion as to how to properly report his financial affairs.").  



           53         See 2 AAC 50.870(c)-(d) (authorizing APOC to reject a complaint without  

                                                                                                                                    

investigation if it determines that the complaint fails to meet certain criteria).  

                                                                                                                                 



           54         Cf. In  re Real Estate Brokerage Antitrust Litig., 622 P.2d 1185, 1189  

                                                                                                                                        

(Wash. 1980) (declining to apply the doctrine of primary jurisdiction based partly on the  

                                                                                                                                            

fact there was no challenge to an agency regulation or to agency procedures).  

                                                                                                             



           55         See Union Oil Co. of Cal. v. Dep't of Revenue, 560 P.2d 21, 23 (Alaska  

                                                                                                                                   

 1977) (Where the issues "to be resolved turn on statutory interpretation, the knowledge  

                                                                                                                              

and expertise of the agency is not conclusive of the intent of the legislature in passing a  

                                                                                                                                               

statute.  Statutory interpretation is within the scope of the court's special competency,  

                                                                                                                           

and it is our duty to consider the statute independently." (citations omitted)); In re Real  

                                                                                                                                         

Estate Brokerage Antitrust Litig., 622 P.2d at 1189 ("[S]tandards to be applied in [an]  

                                                                                                                         (continued...)  



                                                                     -17-                                                              7079
  


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

enforce the standards that the legislature and APOC already determined are appropriate.                                                                     



Further, Seybert's citizen suit is not a collateral attack on any permitting or regulatory                                              



decision by            APOC; the citizen suit complements and enhances APOC's regulatory                                               

efforts.56  The legislature conceives of APOC as a "watchdog agenc[y]," and its stated  



purpose  in  adding  the  administrative  complaint  provision  was  to  "strengthen  the  

                                                                                                                                                    

oversight of Alaska's ethics laws."57                                 Allowing court enforcement of the conflict of  

                                                                                                                                                      



interest law complements, rather than encroaches on, the role of APOC and the goal of  

                                                                                                                                                       



the administrative complaint provision.  

                                                                         



                        In light of these three factors, the record does not establish as a matter of  

                                                      



law that the superior court was required to apply the primary jurisdiction doctrine to stay  

                                                                                                                                                   



Seybert's claims pending resolution by APOC. In fact these factors may counsel against  

                                                                                                                                              



the  application  of  the  doctrine  to  Seybert's  claims.                                        Thus  the  primary  jurisdiction  

                                                                                                                                     



doctrine does not provide an alternative ground on which we can affirm the superior  

                                                                                                                                           



court's grant of summary judgment.  

                                                                  



V.          CONCLUSION  



                        We conclude, first, that it was an error for the superior court to hold that  

                                                                                                                                                   



Seybert was required to exhaust his administrative remedies before bringing a citizen  

                                                                                                                                              



            55          (...continued)  



                                                                                                                                         

antitrust action are within the conventional competence of the courts and the judgment  

                                                                                                                                                  

of the agencies is not likely to be helpful in the application of these standards to the facts  

             

of this case.").  



            56          Cf. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S.  

                                                                                                                                                   

49, 60 (1987) (explaining that a citizen suit under the federal Clean Water Act "is meant  

                                                                                                                                               

to supplement rather than to supplant governmental action").  

                                                                                                              



            57          Minutes, H. Fin. Comm. Hearing on H.B. 281, 25th Leg., 2d Sess. 2:33- 

                                                                                                                                                 

2:36 (Mar. 31, 2008) (testimony of Mike Sica, staff to Representative Bob Lynn, bill  

                                                                                                                                        

sponsor).  



                                                                         -18-                                                                    7079
  


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

 suit, and, second, that the record does not establish the doctrine of primary jurisdiction                                                                                                                                                                                                                                                             



as an independent basis on which to affirm the superior court's decision.                                                                                                                                                                                                                                                                                      We thus   



REVERSE   the   superior   court's   order  granting   summary   judgment   and   staying   the  



petitioners' claims.                                                                          



                                                                                                                                                                                                            -19-                                                                                                                                                                     7079
  

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