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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Harry N. Young, Jr. v. State of Alaska; Office of Lieutenant Governor, Lieutenant Governor Kevin Meyer, in an official capacity; Division of Elections, and Director Gail Fenumiai, in an official capacity (1/28/2022) sp-7582

Harry N. Young, Jr. v. State of Alaska; Office of Lieutenant Governor, Lieutenant Governor Kevin Meyer, in an official capacity; Division of Elections, and Director Gail Fenumiai, in an official capacity (1/28/2022) sp-7582

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

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                       

HARRY  N.  YOUNG  JR.,                                           )  

                                                                 )    Supreme Court No. S-17816  



                                Appellant,                       )  

                                                                 )    Superior Court No. 3AN-19-10030 CI  


           v.                                                    )  


                                                                 )    O P I N I O N  


STATE OF ALASKA; OFFICE OF                                       )  



LIEUTENANT GOVERNOR,                                             )    No. 7582 - January 28, 2022  




MEYER, in an official capacity;                                  )  


DIVISION OF ELECTIONS, and                                       )  


DIRECTOR GAIL FENUMIAI, in an                                    )  


official capacity,                                               )  


                                Appellees.                       )  



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


                      Judicial District, Anchorage, Yvonne Lamoureux, Judge.  


                      Appearances:             Matthew Singer,  Lee  C. Baxter, Schwabe,  


                      Williamson  &  Wyatt,  P.C.,  Anchorage,  for  Appellant.  


                      Katherine            Demarest,             Assistant          Attorney            General,  


                      Janell Hafner, Solicitor General, Anchorage, and Treg R.  


                      Taylor,  Attorney  General,  Juneau,  for  Appellee  State  of  



                      Before:  Winfree, Maassen, and Carney, Justices.  [Bolger,  


                      Chief Justice, and Borghesan, Justice, not participating.]  


                      MAASSEN, Justice.  

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

 I.	                              INTRODUCTION  

                                                                   The   lieutenant   governor   refused   to   certify   an   application   for   a   ballot  

 initiative, and the group backing the initiative filed suit. In a court-approved stipulation,                                                                                                                                                                                                                                                                                      

 the Division of Elections agreed to print the signature booklets and make them available                                                                                                                                                                                                                                                                                                      

 to the initiative's sponsors without waiting for the court to decide whether the initiative                                                                                                                                                                                                                                                                                                   

 application should have been certified.                                                                                                                                                            A voter sued the State, asserting that it would                                                                                                                                                        

 violate the initiative process laid out in article XI, section 3 of the Alaska Constitution                                                                                                                                                                                                  

 if the signature booklets were printed and made available before the initiative had been                                                                                                                                                                                                                                                                                                                          

 certified.   In response the State and the initiative group entered into a new stipulation                                                                                                                                                                                                                                                                                           

 providing that the State would not make the signature booklets available until the court                                                                                                                                                                                                                                                                                                                        

 ordered it.   

                                                                   The superior court granted the State summary judgment in the voter's suit,                                                                                                                                                                                                                                                                         

 concluding that he lacked standing and his case was moot. The voter appeals. He argues                                                                                                                                                                                                                                                                                                                    

 both that he has standing and that his case should be heard because of two exceptions to                                                                                                                                                                                                                                                                                                                                         

 the   mootness   doctrine:     the   public   interest   exception  and   the   voluntary   cessation  

 exception.     Without   reaching   the   issue   of   standing,   we   affirm the                                                                                                                                                                                                                                                                     superior   court's  

judgment on mootness grounds, concluding that the court did not abuse its discretion by                                                                                                                                                                                                                                                                                                                                        

 declining to apply either exception to the doctrine.                                                                                                                                                        

 II.	                             FACTS AND PROCEDURAL HISTORY                                                                                                                                       

                                  A.	                              Young    Challenges    The    State's    Court-Approved    Stipulation    To  

                                                                   Prepare Petition Booklets Before The Initiative Is Certified                                                                                                                                                                                                                                                            .  

                                                                   The Alaska Constitution allows citizens to "propose and enact laws by the                                                                                                                                                                                                                                                                                

                                                      1         Sponsors of an initiative begin the process by submitting an application to  


                                  1                                Alaska Const. art. XI, § 1.  


                                                                                                                                                                                                                -2-	                                                                                                                                                                                                                      7582  

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


the lieutenant governor, who certifies it "[i]f he finds it in proper form."                                                                         The lieutenant   


 governor then prepares signature booklets for the sponsors to circulate.                                                                                         

                                                                                                                                                     If the sponsors  


 gather  enough  signatures  from  qualified  voters,  they  submit  their  petition  to  the  

                                          4  who - within certain time constraints - places the initiative on  

 lieutenant governor,                                                                                                         

the next general election ballot.5  


                            The initiative at issue is Alaska's Better Elections Initiative (19AKBE),  


which proposed various changes to Alaska's election laws.  As we summarized it in  


Meyer v. Alaskans for Better Elections (Alaskans for Better Elections I), the initiative  


would "most significantly change[] Alaska's election laws by:  (1) replacing Alaska's  


 current party-based primary system with an open, nonpartisan primary; (2) establishing  


ranked-choice  voting  in  general  elections;  and  (3)  adopting  new  disclosure  and  


                                                                                                                                                                        6    On  

 disclaimer requirements for independent expenditure groups and their donors."    


August 30, 2019, the lieutenant governor refused to certify the initiative application on  


the ground that it violated the single-subject rule, a statutory requirement that a "bill shall  


              2             Id.  § 2 ("The application . . . shall be filed with the lieutenant governor.                                                                      If  

he finds it in proper form he shall so certify.  Denial of certification shall be subject to                                                                                    

judicial review.").                     

              3             Id.  §  3  ("After  certification  of  the  application,  a  petition  containing  a  


 summary  of  the  subject  matter  shall  be  prepared  by  the  lieutenant  governor  for  


 circulation by the sponsors.").  


              4             Id. ("If signed by qualified voters who [meet certain numerical criteria] . . .  


 [the petition] may be filed with the lieutenant governor.").  


              5             Id.  § 4 ("The lieutenant governor . . . shall place [the proposition] on the  


ballot for the first statewide election held more than one hundred twenty days after  


 adjournment of the legislative session following the filing [of the initiative petition].").  


              6             465 P.3d 477, 490 (Alaska 2020).  


                                                                                       -3-                                                                               7582

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


be confined to one subject."                               On September                  5 the 19AKBE ballot group sued the                                

Division of Elections and the lieutenant governor (collectively the State), seeking to                                                                       

                                                               8   Because of the constitutional time constraints, the  

reverse the denial of certification.                                                                                                                       

sponsors had only until mid-January 2020 to gather enough signatures if 19AKBE were  


to appear on the 2020 general election ballot.  


                         To  minimize  preliminary  motion  practice,  the  parties  entered  into  a  


stipulation  on  September  9.                             The  State  agreed  to  immediately  send  the  19AKBE  


signature booklets to the printer "with the goal of making them available to the [ballot  


group] by September 23, 2019."   The ballot group acknowledged that the State was  


willing to stipulate to this step "prior to the merits of the case being decided because  


application of the single-subject rule [was] the only disputed issue in the case," and the  


ballot group agreed to post a $1,500 bond to cover the costs of printing the booklets.  


The court approved the stipulation the next day.  


                         Harry Young sued the Division, its director, and the lieutenant governor on  


September  18,  seeking  declaratory  and  injunctive  relief  to  prevent  the  State  from  


preparing the signature booklets and making them available to the 19AKBE sponsors  


before  the  initiative  application  had  been  certified.                                           Young  relied  on  the  time  line  


provided by article XI, section 3 of the Alaska Constitution:  "After certification of the  


application, a petition containing a summary of the subject matter shall be prepared by  


the lieutenant governor for circulation by the sponsors."  (Emphasis added.)  Young  


argued   that   preparing   the   petition   booklets   before   certification   was   plainly  




            7            See  AS 15.45.040(1).                     



                        Alaskans for Better Elections v. Meyer (Alaskans for Better Elections II),  


No. 3AN-19-09704 CI, 2019 WL 6499035, at *1 (Alaska Super., Oct. 28, 2019).  

                                                                              -4-                                                                      7582

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

                                                                           Young is an Alaska resident, a registered voter, and a party precinct leader.                                                                                                                                                                                                                                                                                                                                             

 In an affidavit he stated his belief "that our government has a heightened duty to follow                                                                                                                                                                                                                                                                                                                                                                

 the words of the Constitution" and that if it does not, "our system of laws will become                                                                                                                                                                                                                                                                                                                                  

 meaningless   and   will   eventually   result   in   tyranny."     He   claimed   that  the   State's  

  agreement to prepare and make available the petition booklets before the initiative was                                                                                                                                                                                                                                                                                                                                                                               

  certified was "unfair to [him] and all other voters who rely on the State to follow the                                                                                                                                                                                                                                                                                                                                                                                    

  enactedlaws,"creating"confusion"and "lead[ing]theStatedown                                                                                                                                                                                                                                                                                                          aslippery                                              slopewhere   

 the state government may feel free to ignore other terms of our Constitution."                                                                                                                                                                                                                                                                                                                                                                  

                                      B.	                                  AfterTheStateWithdrawsTheStipulation,                                                                                                                                                                                                                         TheSuperiorCourt                                                                                                     Rules  

                                                                           That Young Lacks Standing And His Case Is Moot                                                                                                                                                                                                                                                                .  

                                                                           The day after Young filed suit, the State and the initiative group modified                                                                                                                                                                                                                                                                                       

 their agreement; the State admits that this was in response to Young's lawsuit.                                                                                                                                                                                                                                                                                                                                                                                        An  

  amended stipulation provided that the State would "not distribute the petition booklets                                                                                                                                                                                                                                                                                                                                                      

 before a court order requiring distribution."                                                                                                                                                                                                       

                                                                           Young accordingly withdrew his request for an injunction, but he moved                                                                                                                                                                                                                                                                                                       

  for   summary   judgment   on   his   declaratory   relief   claim.    He   admitted   that   no   live  

  controversy remained, but he urged the superior court to apply the public interest or                                                                                                                                                                                                                                                                                                                                                                                          

 voluntary cessation exceptions to the mootness doctrine and grant him a declaratory                                                                                                                                                                                                                                                                                                                                           



                                      9                                    "The [public interest] exception consists of three factors:                                                                                                                                                                                                                                                              '(1) whether the                                                          

  disputed issues are capable of repetition, (2) whether the mootness doctrine, if applied,                                                                                                                                                                                                                                                                                                                                                       

 may cause review of the issues to be repeatedly circumvented, and (3) whether the issues                                                                                                                                                                                                                                                                                                                                                                     

 presented are so important to the public interest as to justify overriding the mootness                                                                                                                                                                                                                                                                                                                                                 

  doctrine.' "     Akpik v. Off. of Mgmt. &                                                                                                                                                             Budget , 115 P.3d 532, 535 (Alaska 2005) (quoting                                                                                                                                                                                      

 Kodiak Seafood Processors Ass'n v. State                                                                                                                                                                                             , 900 P.2d 1191, 1195 (Alaska 1995)). Under                                                                                                                                                                         

 the   "voluntary   cessation"   exception,   the   defendant's   voluntary   cessation  of   the  

  challenged practice may not be enough to moot the case unless "subsequent events made                                                                                                                                                                                                                                                                                                                                                                          


                                                                                                                                                                                                                                         -5-	                                                                                                                                                                                                                        7582

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

                          The State cross-moved for summary judgment on three grounds. First, the                                                                 

 State argued that Young lacked standing to bring his claim.                                                               Second, it argued that               

because the parties had amended their stipulation and the State had not distributed the                                                                           

 19AKBE signature booklets before certification, Young's case had become moot and no                                                                               

                                                                                     10   Third, the State argued on the merits that  

exceptions to the mootness doctrine applied.                                                                                                                     

the superior  court in  the 19AKBE litigation had authority  to authorize the booklet  


printing and distribution as interim relief in that case.  


                          The director of the Division of Elections submitted an affidavit stating that  


the Division had never before entered into a stipulation for pre-certification distribution  


of initiative signature booklets and that it "currently ha[d] no plans to enter into [another]  


stipulation like the original [19AKBE] stipulation . . . in this or any other case."  The  


director explained  that the Division had deviated from its historical practice in the  


 19AKBE case because there was only one discrete legal issue that would determine  


whether the petition booklets could be circulated; if a ruling on the merits determined  


that  the  initiative  violated  the  single-subject  rule,  the  entire  initiative  would  be  


invalidated, and there would be no need for the Division to reprint amended versions of  


the booklets.  


             9            (...continued)  


it absolutely clear that the allegedly wrongful behavior could not reasonably be expected  


to recur."  Leahy v. Conant, 436 P.3d 1039, 1048 n.46 (Alaska 2019) (quoting Slade v.  


State, Dep't of Transp. & Pub. Facilities, 336 P.3d 699, 700 (Alaska 2014)).  

             10           We  note  that  in  the  meantime,  in  the  suit  brought  by  the  initiative's  


sponsors, thesuperior courtconcluded that theinitiativecompliedwith thesingle-subject  


rule and ordered the State to certify it and distribute the petition booklets.  Alaskans for  


Better Elections II, 2019 WL 6499035, at *5.  We affirmed the superior court's ruling.  


Alaskans for Better Elections I , 465 P.3d at 479.  


                                                                                 -6-                                                                          7582

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

                            The superior court denied Young's motion for summary judgment and                                                                               

granted the State's cross-motion. The court first ruled that Young lacked standing to sue.                                                                                            

                                                                                                                           11   because  his  generalized  

It   concluded   that   Young   lacked   interest-injury   standing                                                                                        

concerns, reflecting disagreement with the State's decision, did "not reflect an injury to  


Young." The court concluded that Young lacked citizen-taxpayer standing12 because the  


case did not "involv[e] great societal impact"; the State's stipulation was an isolated  


decision  rather  than  an  established  practice,  and  it  had  no  "ongoing  or  lasting  


effect" - not even on the 19AKBE initiative itself.13                                                              And the court said that even if  


Young had raised "a matter of public significance," it would deny citizen-taxpayer  


standing on prudential grounds, expressing "concern[] that Young is seeking anadvisory  




                            The superior court also decided that the case was moot and no exception  


to  the  mootness  doctrine  applied.                                             Acknowledging  that  the  initiative  process's  


compressed timeline might frustrate judicial review, the court nevertheless reasoned that  


              11            "To   establish   interest-injury   standing,   a   litigant   must   show:     (1)  'a  

"sufficient personal stake" in the outcome of the controversy' and (2) 'an interest which                                                                               

is adversely affected by the complained-of conduct.' "                                                         PLC, LLC v. State                     , 484 P.3d 572,        

578 (Alaska 2021) (quoting                                 Keller v. French                   , 205 P.3d 299, 304 (Alaska 2009)).                                          

              12            "To establish citizen-taxpayer standing, a litigant must show that the issues  


raised are of public significance and that it is an appropriate litigant to seek adjudication  


of those issues." Law Project for Psychiatric Rights, Inc. v. State, 239 P.3d 1252, 1255  


(Alaska 2010).  


              13            The  court  also  questioned  whether  Young  was  truly  an  "appropriate  


plaintiff given that he ha[d] not voiced any opposition to the underlying petition in the  


 19AKBElitigation and there[were]likelyothersmoredirectly affected bythepossibility  


of having petition booklets printed in advance of certification." But the court's "standing  


determination [did] not turn on an analysis of this factor" but rather on the first prong of  


the citizen-taxpayer test:  the case's "public signifance."  


                                                                                       -7-                                                                                7582

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

 "given the unlikelihood of this issue repeating itself, combined with the unique [factual]                                                                                 

 circumstances," the procedural constitutional issue raised by Young did "not justify                                                                                          

 overriding   the   mootness   doctrine"   under   the   public   interest   exception.     The   court  

 declined to apply the voluntary cessation exception to the mootness doctrine because the                                                                                               

 stipulation was a deviation from the State's usual practice.                                                                      

                              Young appeals.   

 III.          STANDARD OF REVIEW                        

                              "We   resolve   issues   of   standing   and   mootness  using   our   independent  


judgment because, as matters of judicial policy, these are questions of law."                                                                                                       The  


ultimate "determination of whether to review a moot question" under an exception to the  




mootness doctrine "is left to the discretion of the court." 


 IV.           DISCUSSION  


                              The superior court may provide declaratory relief "[i]n case of an actual  



                                        This  statutory  phrase  "encompasses  considerations  of  standing,  



mootness, and ripeness."                                     Courts should therefore "decide cases only when a plaintiff  

               14            Alaska Cmty. Action on Toxics v. Hartig                                                , 321 P.3d 360, 366 (Alaska 2014)                             

 (quoting  Ahtna Tene Nené v. State, Dep't of Fish & Game                                                                       , 288 P.3d 452, 457 (Alaska   


               15            Id.  at 367 (quoting Kodiak Seafood Processors Ass'n v. State, 900 P.2d  


 1191, 1196 (Alaska 1995)); see also Ulmer v. Alaska Rest. & Beverage Ass'n (ARBA),  


 33 P.3d 773, 778 (Alaska 2001) (declining to apply the public interest exception).  


               16             AS 22.10.020(g).  


               17            Alaska Com. Fishermen's Mem'l in Juneau v. City & Borough of Juneau ,  


 357 P.3d 1172, 1175 (Alaska 2015) (quoting State v. Am. Civil Liberties Union of  


Alaska , 204 P.3d 364, 368 (Alaska 2009)).  


                                                                                            -8-                                                                                    7582

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


has standing to sue and the case is ripe and not moot."                                          A claim becomes moot when   


"it is no longer a present, live controversy."                                                                                                     

                                                                                "Mootness is particularly important in a  


case seeking a declaratory judgment," such as this one, "because there is an added risk  




that the party is seeking an advisory opinion." 

                       Young concedes that this case is moot, but he argues that two exceptions  


to the mootness doctrine apply: the public interest exception and the voluntary cessation  


exception.  We hold that neither exception required the superior court to hear this moot  


case, and we affirm the judgment on mootness grounds.  We therefore do not reach the  


question of Young's standing.  


           A.	         The Superior Court Did Not Abuse Its Discretion By Declining To  


                       Apply The Public Interest Exception To Mootness.  


                       Under the public interest exception, a court may choose to address moot  


issues after considering three factors:  "(1) whether the disputed issues are capable of  


repetition, (2) whether the mootness doctrine, if applied, may cause review of the issues  


to be repeatedly circumvented, and (3) whether the issues presented are so important to  


the public interest as to justify overriding the mootness doctrine."21  


                                                                                                                         "None of these  


factors is dispositive; each is an aspect of the question of whether the public interest  


dictates that a court review a moot issue.  Ultimately, the determination of whether to  

            18	        Id.  at 1176 (quoting             Am. Civil Liberties Union of Alaska                         , 204 P.3d at 368).         

            19         Fairbanks Fire Fighters Ass'n, Local 1324 v. City of Fairbanks                                               , 48 P.3d  


 1165, 1167 (Alaska 2002).  

            20         Sitkans for Responsible Gov't v. City & Borough of Sitka, 274 P.3d 486,  


491 (Alaska 2012) (quoting Kodiak Seafood Processors Ass'n, 900 P.2d at 1195).  


            21         Fairbanks Fire Fighters Ass'n, 48 P.3d at 1168 (quoting Kodiak Seafood  


Processors Ass'n, 900 P.2d at 1196).  


                                                                        -9-	                                                               7582

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

review a moot question is left to the discretion of the court."                                  22  


                      Courts  first  consider  "whether  the  disputed  issues  are  capable  of  



repetition."          "[W]ehaverefused to apply thepublicinterest exception to unusual factual  



                                                                                                 such as when a candidate  

circumstances that were unlikely to repeat themselves," 


nominated in a primary election changed parties in the middle of his general election  



                      In this case, as the superior court noted, while the issue is technically  


"capable of repetition, it is unlikely to repeat." The director's affidavit confirms that the  


Division's "historical practice . . . [is] not to enter into any court-approved stipulated  


agreements to print petition booklets in advance of a final court decision on the merits,"  


and the Division specifically disavowed any plans to do it again. While these statements  


are self-serving, recurrence of the precise issue disputed here does seem unlikely; it  


would require the lieutenant governor to deny certification of an initiative application,  


the sponsors to challenge the denial, the State to agree to prepare the booklets pending  


a decision on the merits - contrary to its historical practice - and the supervising court  


to approve the stipulation.  The unlikelihood of repetition means that this factor weighs  


against applying the public interest exception.  


                      The  second  factor  is  "whether  the  mootness  doctrine,  if  applied,  may  



repeatedly circumvent review  of  the issues."                                   The context of the issue here - a  


court-approved stipulation regarding an election -facilitates judicial review: the action  

           22         Ulmer  v.  Alaska  Rest.  & Beverage  Ass'n  (ARBA),  33  P.3d  773,  778  (Alaska  

2001)  (quoting  Kodiak  Seafood  Processors  Ass'n ,  900  P.2d  at   1196).  

           23        Id.  at  777-78.  

           24        Fairbanks  Fire  Fighters  Ass'n ,  48  P.3d  at   1168.  

           25         O'Callaghan  v.  State,  920  P.2d   1387,   1388  (Alaska   1996).  

           26         Ulmer,  33  P.3d  at  778.  

                                                                   -10-                                                             7582

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

is taken publicly and on the record, and a judge familiar with the case is available to                                                                                                                                                                                                                                                                          

make an expedited ruling if an intervening party objects.                                                                                                                                                                                    The deadlines of the initiative                                                         

process are not inherently so restrictive as to thwart judicial review, especially given our                                                                                                                                                                                                                                                                 

courts' practice of dealing with elections issues expeditiously. What                                                                                                                                                                                                                   madethiscasemoot                                             

was not the statutory or constitutional deadlines for initiatives, but rather the State's                                                                                                                                                                                                                                                    

decision to cease the challenged conduct a day after Young filed suit.                                                                                                                                                                                                                                         Applying the   

mootness doctrine will repeatedly circumvent judicial review of this issue only if the                                                                                                                                                                                                                                                                       

 State continues to withdraw early distribution stipulations as soon as parties sue to                                                                                                                                                                                                                                                                           

challenge them.                                                       Nothing in the record suggests the State will do this; the evidence                                                                                                                                                                                           

 suggests only that the State has never before entered into this kind of stipulation, let                                                                                                                                                                                                                                                                      

alone promptly withdrawn from it.                                                                                                                     This factor thus also weighs against applying the                                                                                                                                                      

public interest exception.                                                                                   

                                                        The third factor is "whether the issues presented are so important to the                                                                                                                                                                                                                            

                                                                                                                                                                                                                                                                            27            The superior court  

public interest as to justify overriding the mootness doctrine."                                                                                                                                                                                                                                            

concluded that the issue here did not justify overriding the mootness doctrine "given the  


unlikelihood of this issue repeating itself, combined with the unique circumstances of the  


facts related to this case."28  


                                                        In support of his argument that the issue is important to the public interest,  


Young cites our earlier observation that the public interest has justified overriding the  


mootness doctrine in cases involving "situations, otherwise moot, where the legal power  


                            27                          Id.  

                            28                          See Alaska Cmty. Action on Toxics v. Hartig                                                                                                                                                 , 321 P.3d 360, 368 (Alaska   

2014) ("[W]e cannot disassociate our view of the third factor in this case from our                                                                                                                                                                                                                                                                       

analysis of the first, in which we concluded that the factual scenario before us is unlikely                                                                                                                                                                                                                                            

to be repeated . . . .").                                                                   

                                                                                                                                                                             -11-                                                                                                                                                                     7582

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


of  public  officials  was  in  question."                    The  issues  in  those  cases  included  whether  the  

Alaska   Constitution   forbade   the   governor's   suit   against   the   Legislative   Council,30  

whether   an   administrative   agency  had   "jurisdiction to   decide  whether   an   issue   [was]  


arbitrable,"         and  whether  a  commissioner  had the  authority  to  allow  fishing  in  waters  


generally  closed  to  fishing.                But  as  the  State  points  out,  in  determining  the  applicability  

of   this   factor   a   mere   "allegation   that  a   government   official   acted   unlawfully   is   not  

dispositive."     In  Hayes   v.   Charney,   for   example,   we   concluded   that   whether   the  

Legislative  Council's  withdrawal  of  funds  violated  article  IX,  section   13  of  the  Alaska  

Constitution  was  not  "of  such  significant  public  interest  as  to  warrant  our  review  despite  

its  mootness,"  because  the  issue  could  readily  be  resolved  by  the  legislature  itself.33  

                     Whether  a  court-approved  stipulation  to  the  State's  pre-certification  


distribution of initiative signature booklets violates a constitutionally mandated timeline  


is certainly of some importance to the public interest.  But in contrast to the decisions  


           29        Copeland   v.   Ballard,   210   P.3d   1197,   1203   (Alaska   2009)   (quoting  

Fairbanks Fire Fighters Ass'n                    , 48 P.3d at 1169).         

           30        Legis. Council v. Knowles, 988 P.2d 604, 606 (Alaska 1999) (describing  


the issue as of "great public importance" because it went "to the heart of the delicate  


constitutional balance between the powers of two coordinate branches of government").  


           31        Fairbanks Fire Fighters Ass'n, 48 P.3d at 1169 ("As this case raises a  


question of the power of government officials, the issues are sufficiently important to the  


public interest to merit consideration.").  


           32        Kodiak Seafood Processors Ass'n v. State, 900 P.2d 1191, 1196 (Alaska  


 1995) (noting that, in addition to the issue being capable of repetition yet evading review,  


"the scope of the Commissioner's power is an issue of public interest").  


           33        693 P.2d 831, 835 (Alaska 1985).  


                                                                 -12-                                                            7582

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


cited by Young,                                   the unlawful act alleged here never actually happened.                                                                                                   That the   

stipulation was withdrawn before implementation, with no lasting effects, significantly                                                                                                            

reduces the public importance of deciding whether the State's stipulated commitment                                                                                                               

would have been constitutional.  This combination of circumstances also increases the                                                                                                                                      

danger that deciding the issue on the merits would constitute an advisory opinion on a                                                                                                            

hypothetical set of facts.                                        As in           Marcy v. Matanuska-Susitna Borough                                                                    , "[w]e believe it                      

best to wait for a . . . challenge grounded on real facts so that our decision is properly                                                                                    

                                                                                                                                    35  The public importance of this issue  

focused and avoidsanyunintended consequences."                                                                                                                                                                         

does not justify applying the public interest exception in this case.  


                                   In sum, while the issue Young raises is technically capable of repetition,  


future incarnations of the issue are unlikely to be rendered moot before any court can  


review  them;  what  mooted  the  controversy  here  was  the  State's  cessation  of  the  


offending conduct as soon as Young filed suit, not something inherent in the legal issue  


of  pre-certification  distribution  of  initiative  pamphlets.                                                                                            And  because  the  allegedly  


unconstitutional stipulation was withdrawn before implementation and had no lingering  


effects, the public importance of the issue is at its minimum, while the danger of issuing  


an advisory opinion based on hypothetical facts is at its maximum.  We therefore see no  


abuse of discretion in  the superior court's decision not to apply the public interest  


exception to the mootness doctrine.  


                  34               SeeFairbanks                          FireFighters Ass'n                                 , 48 P.3d at 1166-67;                                Legis. Council,988   

P.2d at 605.                      

                  35               433 P.3d 1056,1063 (Alaska2018)("Reviewing[plaintiff]'s constitutional  


challenges to  the Proposed  Initiative to  avoid litigating similar  initiatives is  not so  


important to the public interest as to justify overriding the mootness doctrine, because  


those unknown initiatives simply are not before us.").  

                                                                                                            -13-                                                                                                      7582

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

              B.	           The Superior Court Did Not Abuse Its Discretion By Declining To                                                    

                            Apply The Voluntary Cessation Exception To Mootness.                                                                           

                            Under the voluntary cessation exception, as it originated in the federal                                                                  

courts, "a defendant's voluntary cessation of a challenged practice does not deprive                                                                        


a   .   .   .   court   of   its  power  to   determine   the   legality   of   the   practice."                                                                                 

                                                                                                                                                             Whether  a  


defendant's voluntary cessation of challenged conduct moots a case depends on whether  


"subsequent events made it absolutely clear that the allegedly wrongful behavior could  



not reasonably be expected to recur."                                                When the voluntary cessation exception is at  


issue, "[t]he heavy burden of persuading the court that the challenged conduct cannot  



reasonably be expected to start up again lies with the party asserting mootness." 


                            Young contends that the voluntary cessation exception applies to this case.  


TheStateresponds by arguing that federalcourts"typically apply thevoluntary cessation  


doctrine  to  cases  and  scenarios  involving  established  procedures,  .  .  .  laws,  and  


practices."   The State portrays the current case as involving merely "a single court- 


approvedstrategic"litigation decision deviating fromtheState's "longstandingpractice"  


of not entering into this type of stipulation.  The State asks us not to "rigidly import[]"  


the voluntary cessation doctrine into cases like this one involving challenges to a one-off  


action rather than a practice.  

              36            Slade   v.   State,   Dep't   of Transp. &   Pub.   Facilities,   336   P.3d   699,   700  

(Alaska  2014)  (quoting  Friends of the Earth, Inc. v. Laidlaw  Env't  Servs.  (TOC),  Inc.,  

528  U.S.   167,   189  (2000)).  

              37            Id. (quoting Friends of the Earth, Inc., 528 U.S. at 189).  


              38            Id. (alteration in original) (quoting Friends of the Earth, Inc., 528 U.S. at  



                                                                                      -14-	                                                                               7582

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

                              It is true that the typical federal case applying the voluntary cessation                                                                       


exception involves a challenge to a policy, procedure, or pattern of behavior.                                                                                                          And  


when we first applied the voluntary cessation exception in Slade v. State, Department of  


Transportation & Public Facilities, we characterized it as applying to "a defendant's  

                                                                                                           40      Our subsequent cases applying the  


voluntary cessation of a challenged practice ." 

voluntary cessation exception also involved challenges to policies or practices.41  


                              Young claims that "federal courts routinely apply the voluntary cessation  


exception to cases involving" isolated government actions, but the one case he cites to  


illustrate this "routine" is readily distinguishable.42   In Olagues v. Russoniello, the Ninth  


Circuit applied the exception to a U.S. Attorney's voluntary cessation of an allegedly  


unconstitutional  investigation  after  interviews  with  foreign-born  voters  yielded  no  


               39             See Friends of the Earth, Inc.                                        , 528 U.S. at 176, 189, 193-94 (applying                                  

voluntary cessation exception to defendant's challenged repeated violations of pollutant                                                                                        

discharge permit terms);                                 City of Mesquite v. Aladdin's Castle, Inc.                                                     , 455 U.S. 283, 289  

(1982) (applying voluntary                                   cessation exceptiontosavechallengetosubsequently-revised                                 

ordinance);  Porter v. Clarke                                     , 852 F.3d 358, 360 (4th Cir. 2017) (applying voluntary                                                     

cessation exception to challenged policies governing conditions of confinement for                                                                                                           

prisoners on Virginia's death row).                                 

               40             336 P.3d at 700 (emphasis added) (quoting Friends of the Earth, Inc., 528  


U.S. at 189.  


               41             Black v. Whitestone Est. Condo. Homeowners' Ass'n, 446 P.3d 786, 788,  


794  (Alaska  2019)  (applying  voluntary  cessation  exception  when  defendants  had  


withheld dues for "several years" before starting to retroactively pay); Leahy v. Conant,  


436  P.3d  1039,  1048-49  n.46  (Alaska  2019)  (concluding  that  voluntary  cessation  


exception did not apply because Department of Corrections had unambiguously revised  


challenged policy on prisoner mail); Alaska Tr., LLC v. Ambridge , 372 P.3d 207, 225  


n.106 (Alaska 2016) (applying voluntary cessation exception even though defendant  


"had already changed its challenged practices").  


               42             Olagues v. Russoniello, 770 F.2d 791 (9th Cir. 1985).  


                                                                                             -15-                                                                                        7582

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


evidence of an illegal voter registration conspiracy.                                   The allegedly illegal investigation       

at issue in      Olagues  actually happened; the plaintiffs claimed that it had already violated                                   

                                                                     44     Here,  on  the  other  hand,  the  allegedly  

their   statutory   and   constitutional   rights.                                                                              

unconstitutionalaction -thepre-certification distributionofsignaturebooklets -never  


occurred.  The State agreed to take the action but then swiftly retracted its agreement.  


                      The  Court  of  Appeals  for  the  D.C.  Circuit  has  specifically  held  that  


challenges to isolated government actions may be subject to the voluntary cessation  


exception to mootness.45                     A number of other federal courts have applied the test to  


isolated actions, some concluding that the claims were justiciable under the exception.46  


Others  applied  the  test  but  still  dismissed  the  claims  as  moot,  concluding  that  the  


           43         Id.  at  796.  

           44         Id.  at  793-94.   

           45         J.   T.   v.   District   of   Columbia,   983  F.3d   516,   522-23   (D.C.   Cir.   2020)  

(confirming that voluntary cessation  test  applies  to  attacks on  "isolated  agency  action[s],"  

but   holding   voluntary   cessation   exception   irrelevant   because   defendant   had   "not  

voluntarily cease[d]  the challenged conduct");  see also Del Monte  Fresh Produce Co.  

v. United States, 570 F.3d 316,  321 (D.C. Cir. 2009) ("[A] claim for declaratory relief  

will  not  be  moot  even  if  the  'plaintiff  has  made  no  challenge  to  [an]  ongoing  underlying  

policy,  but  merely  attacks  an  isolated  agency  action,'  so  long  as  'the  specific  claim  .  .  .  

falls  within  the  voluntary   cessation   doctrine.'   "   (quoting City   of  Houston  v.  Dep't   of  

Hous.  &   Urb.  Dev.,  24  F.3d   1421,   1429  (D.C.  Cir.   1994))).  

           46          United States  v.  Trans-Missouri Freight  Ass'n ,  166  U.S. 290,  307-08  


(1897) (holding challenge to allegedly collusive association agreement was justiciable  


despite association's voluntary dissolution,  as members  still claimed agreement was  


legal); United States v. Virgin Islands, 363 F.3d 276, 285-86 (3d Cir. 2004) (applying  


voluntary cessation exception to defendant's termination of challenged contract, citing  


defendant's "continued defense of the validity and soundness of the contract"); Olagues,  


770  F.2d  at  796  (holding  challenge  to  ended  investigation  was  not  moot,  citing  


defendant's insistence his conduct was legal).  


                                                                     -16-                                                              7582

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

defendants had successfully met their burden of showing that there was no reasonable                             

expectation of recurrence.                 47  

                      Accordingly, federal courts are "more likely to find that the challenged  


behavior is not reasonably likely to recur where it constituted an isolated incident, was  


unintentional, or was at least engaged in reluctantly."48                                   The Eleventh Circuit explicitly  


weighs "whether the challenged conduct was isolated or unintentional, as opposed to a  


continuing and deliberate practice," as one of three factors for determining whether a  


defendant's voluntary cessation has mooted a case.49                                      The Seventh and Ninth Circuits  


           47         See  Los  Angeles  County  v.  Davis,  440  U.S.  625,  631-32  (1979)  (involving  

never-implemented  proposal  to  use  results  of  invalid  test  in  hiring  process);  Fields  v.  

Speaker   of   Pa.   House   of   Representatives,   936   F.3d   142,   161-62   (3d   Cir.   2019)  

(involving  "one-off  incident"  of  religious  pressure  from  state  security  guard);  Kennedy  

v.  Omega  Gas  &  Oil,  LLC,  748  F.  App'x  886,  888,  891  (11th  Cir.  2018)  (involving  gas  

station's   noncompliance   with   disability   access   statute);   Troiano   v.   Supervisor   of  

Elections  in  Palm  Beach  Cty,  382  F.3d  1276,  1285  (11th  Cir.  2004)  (applying  voluntary  

cessation  test  to  official's  challenged  deviation  from  otherwise  consistent  policy  about  

election equipment);  DiGiore  v.  Ryan,   172  F.3d  454,  466   (7th   Cir.   1999)   (involving  

challenged   "isolated   incident"   of   noncompliance   with   Fair   Labor   Standards   Act),  

overruled  on  other  grounds  by  Whetsel  v.  Network  Prop.  Servs.,  LLC,  246  F.3d  897  (7th  

Cir.  2001).  

           48         Sheely v. MRI Radiology Network, P.A., 505 F.3d  1173, 1184 (11th Cir.  



           49         Id.  The other two factors considered by the Eleventh Circuit are "whether  


the defendant's cessation of the offending conduct was motivated by a genuine change  


of heart or timed to anticipate suit; and . . . whether, in ceasing the conduct, the defendant  


has acknowledged liability" or "wrongdoing." Id. at 1184, 1187. See also Troiano, 382  


F.3d at  1285 (concluding official's consistent practice of not engaging in challenged  


conduct constituted evidence that deviation would not recur).  


                                                                    -17-                                                              7582

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

have also considered whether the challenged conduct was an isolated incident or part of                                                                                                                                            


a pattern of behavior.                                           

                                    Federal  courts  applying  the  voluntary  cessation  doctrine  have  also  


                                                                                                                                                                                  51   In one such case,  

considered whether any effects of the challenged conduct remain.                                                                                                                                                           


Los Angeles County v. Davis, the United States Supreme Court held that a challenge to  


a once-proposed and long-abandoned hiring plan was moot, in part because the plan was  


never  implemented  and  thus  unlikely  to  have  "had  any  discriminatory  effects  to  


redress."52  Young does not point to any enduring consequences of the State's challenged  


action in this case; the only remaining repercussion of the withdrawn stipulation is  


Young's continued attack on it.  


                                    We do not hold that the voluntary cessation exception can never apply to  


a defendant's isolated action. But a number of circumstances weigh against applying the  


exception here.  The agreement challenged by Young was not only a swiftly abandoned  


litigation concession that arose under unusual circumstances, it was also inconsistent  


                  50                DiGiore,   172   F.3d   at   466   (applying   voluntary   cessation   doctrine   but  

concluding case was moot in part because challenged conduct was "isolated incident"                                                                                                   

rather than practice);                                    Rosemere Neighborhood Ass'n v. U.S. Env't Prot. Agency                                                                                                          , 581   

F.3d 1169, 1175 (9th Cir. 2009) (applying voluntary cessation exception in part because                                                                                                                            

"[w]hat the district court initially classified as an 'isolated instance of untimeliness' has                                                                                                                                   

 since bloomed into a consistent pattern of delay");                                                                                    cf. Jud. Watch, Inc. v. U.S. Dep't of                                                      

Homeland Sec., 895 F.3d 770, 777-78, 780 (D.C. Cir. 2018) (recognizing Freedom of                                                                                                                                                  

Information Act-specificvariationonvoluntarycessationexception                                                                                                                   that requires plaintiff  

to allege pattern rather than single instance of noncompliance).                                                                                                             

                  51                See Los Angeles County v. Davis, 440 U.S. 625, 631 (1979); Porup v. Cent.  


Intel. Agency, 997 F.3d 1224, 1233 (D.C. Cir. 2021); Luckie v. Env't Prot. Agency, 752  


F.2d 454, 459 (9th Cir. 1985).  


                  52                440 U.S. at 633.  


                                                                                                               -18-                                                                                                        7582

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


with the State's historical practices, and the State says it has no plans to repeat it.                                                                                                                                                     


Furthermore, the allegedly unconstitutional action was never actually taken, and the  

                                                                                                                            54   On these facts, the superior court acted  



withdrawn agreement had no lingering effects. 

well within its discretion in deciding that the voluntary cessation exception did not save  


Young's claim from mootness.  


V.                CONCLUSION  


                                    We AFFIRM the judgment of the superior court.  


                  53                See Digiore                     , 172 F.3d at 466;                             see also Rosebrock v. Mathis                                                  , 745 F.3d 963,              

973 (9th Cir. 2014) (noting that defendant's re-commitment to general policy "makes it                                                                                                                                                

particularly unlikely that [defendant] will change its policy in the future" when ruling                                                                                                                

that challenge to deviation from policy was moot).                                                                     

                  54                See Davis, 440 U.S. at 631 (ruling challenge to 1972 hiring plan was moot  


in part because since the plan "was never carried out," it was very unlikely that it "had  


any discriminatory effects to redress").  


                                                                                                               -19-                                                                                                         7582

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