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Keller v. French

Supreme Court of Alaska

April 3, 2009

Representative Wes KELLER; Representative Mike Kelly; Senator Fred Dyson; Senator Tom Wagoner; and Representative Bob Lynn, Appellants,
Senator Hollis FRENCH; Senator Kim Elton; Stephen E. Branchflower; Alaska Legislative Council; Senator Lyda Green; Senate Judiciary Committee; Dianne Kiesel; Annette Kreitzer; Janice Mason; Nicki Neal; Michael Nizich; Kristina Perry; and Brad Thompson, Appellees.

Page 300

Kevin G. Clarkson, Brena, Bell & Clarkson, P.C., Anchorage, Kelly J. Shackelford, Hiram S. Sasser III, and Roger Byron, Liberty Legal Institute, Plano, Texas, and Scott R. Hoyt, Ashley E. Johnson, and Malachi O. Boyuls, Gibson, Dunn & Crutcher, Dallas, Texas, for Appellants.

Peter J. Maassen, Ingaldson, Maassen & Fitzgerald, P.C., Anchorage, for Appellees Senator Hollis French, Senator Kim Elton, Stephen E. Branchflower, Alaska Legislative Council, Senator Lyda Green, and Senate Judiciary Committee.

Wayne Anthony Ross, Ross & Miner, P.C., Anchorage, for Amicus Curiae Law Professors and Legal Scholars.



EASTAUGH, Justice.


Claiming that a legislative investigation into the governor's dismissal of the Public Safety Commissioner violated the Alaska Constitution's fair and just treatment clause, five legislators sued two other legislators, a permanent legislative committee, and the investigator to halt the investigation. The five legislators argue on appeal that the superior court erred in denying their motion for a temporary restraining order and preliminary injunction, in reasoning that there was no justiciable dispute, and in dismissing their complaint. We affirmed in a highly expedited dispositive order issued October 9, 2008. This opinion explains why we did so. We hold that the five legislators did not have standing to claim in this case that there was a violation of the fair and just treatment clause.


Governor Sarah Palin dismissed Public Safety Commissioner Walter Monegan on July 11, 2008. On July 28 the Alaska Legislative Council, a bipartisan, [1] permanent interim committee of the Alaska Legislature,[2] initiated an investigation into the dismissal. The Legislative Council unanimously passed a motion approving funds to " contract[ ] for legal services to investigate the circumstances and events surrounding [Monegan's termination], and potential abuses of power and/or improper actions by members of the executive branch, and prepare a report." [3] The motion also directed that the investigation be " professional, unbiased, independent, objective, and conducted at arm's length from the political process." The full legislature was in session when the Legislative Council passed its motion on July 28, and all members of the Legislative Council attended the meeting at which the motion was passed.

The Legislative Council, chaired by Senator Kim Elton, chose Senator Hollis French to act as the investigation's project director. Former state prosecutor Stephen Branchflower was selected as the independent investigator. Branchflower was originally expected to produce a report to be released on October 31, 2008, but the release date was later changed to October 10.

Page 301

On August 29 Governor Palin was named as the vice-presidential running mate to Republican presidential nominee Senator John McCain.

On September 16 five state legislators [4] filed a superior court complaint against Senator French, Senator Elton, Branchflower, and the Alaska Legislative Council. We refer to the plaintiff legislators as the " Keller plaintiffs." Their complaint, filed in Case No. 3AN-08-10489 CI, asserted that the defendants were " conducting a ‘ McCarthyistic’ investigation" and sought declaratory and injunctive relief. The Keller plaintiffs claimed that the investigation exceeded the legislature's power and unconstitutionally violated separation of powers principles; unlawfully exceeded the authority granted to the Legislative Council by motion; violated the due process clause of the Alaska Constitution; and violated statutory prohibitions related to conflicts of interest and unethical conduct.

The defendants responded on September 24 with a motion to dismiss. On September 25 the Keller plaintiffs moved for a temporary restraining order and preliminary injunction to stop the investigation immediately.

Also on September 25, seven state employees who had been subpoenaed in the investigation to appear Before the Senate Judiciary Committee commenced a separate lawsuit, Case No. 3AN-08-10780 CI, challenging the validity of their subpoenas.[5] We refer to these plaintiffs as the " Kiesel plaintiffs." They sued the ...

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