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Alsworth v. Seybert

Supreme Court of Alaska

April 25, 2014

GLEN ALSWORTH, SR. and LORENE " SUE" ANELON, Petitioners,
v.
VICTOR SEYBERT, JOHN HOLMAN, KIMBERLY WILLIAMS, GEORGE G. JACKO, and RICK DELKITTIE, SR., Respondents

Page 48

Petition for Review from the Superior Court of the State of Alaska, Third Judicial District, Dillingham, Steve W. Cole, Judge. Superior Court No. 3DI-12-00059 CI.

Rebecca J. Hozubin and Michael A. Moberly, Law Office of Hozubin & Moberly, Anchorage, for Petitioners.

Timothy A. McKeever and Scott Kendall, Holmes Weddle & Barcott, P.C., Anchorage, for Respondents.

Before: Winfree*, Stowers*, and Bolger*, Justices, and Matthews* and Eastaugh*, Senior Justices.[*] [Fabe, Chief Justice, and Maassen, Justice, not participating.].

OPINION

Page 49

WINFREE, Justice.

I. INTRODUCTION

A group of citizens sued two borough assembly members, alleging various violations of borough and state conflict of interest laws and the common law conflict of interest doctrine. After the borough took official action facilitating the assembly members' defense, the citizens moved to enjoin the assembly members from using their official positions to defend the lawsuit or pursue personal financial gain. The superior court granted a preliminary injunction under the balance of hardships standard, concluding that the citizens faced the possibility of irreparable harm if the injunction were not granted and that the assembly members were adequately protected by the injunction. The injunction barred the assembly members from taking various actions in their official capacities, including speaking about a local mining project.

The assembly members filed a petition for review, which we granted. They argue, inter alia, that the superior court applied the wrong preliminary injunction standard and

Page 50

that the injunction violates their free speech rights. We agree. The court should have applied the probable success on the merits standard because the injunction does not adequately protect the assembly members, and the injunction imposes an unconstitutional prior restraint on speech. Shortly after oral argument, we vacated the portion of the preliminary injunction barring the assembly members from taking certain official acts or speaking about the mining project. We now vacate the injunction in full.

II. FACTS AND PROCEEDINGS

A. Facts [1]

Petitioner Glen Alsworth, Sr. is the Lake and Peninsula Borough (Borough) Mayor and, as such, is a voting member of the Borough Assembly. Alsworth owns and operates Lake Clark Air, an air taxi business serving the Bristol Bay region. Lake Clark Air has received considerable business from the Borough, the Borough's School District (School District), and Pebble Limited Partnership; [2] the latter two entities are Lake Clark Air's largest revenue sources. Alsworth also owns and operates The Farm Lodge, which has received income from the School District and Pebble Limited Partnership.

Petitioner Lorene " Sue" Anelon was, during all times relevant to the complaint in this case, a voting member of the Borough Assembly. Anelon lost her reelection bid in November 2012 and no longer is on the Assembly. Anelon has been employed by Iliamna Development Corporation since at least 2006. Iliamna Development Corporation's primary client is Pebble Limited Partnership.

The Respondents are registered voters in the Borough. Respondent Victor Seybert is also a voting member of the Borough Assembly. We refer to the Respondents collectively as " Seybert."

The Borough Assembly approves the Borough's and the School District's annual budgets. The Assembly, during Alsworth's and Anelon's tenures, enacted resolutions supporting Pebble Mine's development and subleasing Borough property to Northern Dynasty Mines, the parent company of Pebble Limited Partnership. On at least one occasion, Alsworth gave a speech, ostensibly in his official capacity as Mayor, advocating for Pebble Mine.

B. Proceedings

Seybert filed the present lawsuit against Alsworth and Anelon in May 2012. In an unverified complaint, to which several hundred pages of unauthenticated documents were attached, Seybert alleged Alsworth and Anelon: (1) violated AS 39.50.090,[3] Lake and Peninsula Borough (L& PB) Code § 2.20.090,[4] L& PB Charter § 15.01,[5] and the common law conflict of interest doctrine [6]

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by participating in Assembly decisions from which they benefit directly and using their official positions to promote Pebble Mine; and (2) violated AS 39.50.020 and .030 [7] by failing to properly report gifts and income. Seybert sought various forms of injunctive and legal relief. The Borough's attorney ...


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