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RBG Bush Planes, LLC v. Kirk

Supreme Court of Alaska

January 9, 2015

KENNETH KIRK, in his official capacity as Chair of the Alaska Public Offices Commission, and PAUL R. DAUPHINAIS, in his official capacity as Executive Director of the Alaska Public Offices Commission, Appellees

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Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Kevin M. Saxby, Judge. Superior Court No. 3AN-12-10793 CI.

Timothy A. McKeever, Holmes Weddle & Barcott, PC, Anchorage, for Appellant RBG Bush Planes LLC.

JL McCarrey, McKinley Capital Management LLC, Anchorage, Attorney for Appellant McKinley Capital Management LLC.

Ronald L. Bliss, Bliss Wilkens & Clayton, Anchorage, for Appellant Robert B. Gillam.

John M. Ptacin, Assistant Attorney General, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Appellee Paul R. Dauphinais.

William E. Milks, Assistant Attorney General, and Michael C. Geraghty, Attorney General, Juneau, for Appellee Kenneth Kirk.

Before: Winfree, Stowers, and Bolger, Justices. Fabe, Chief Justice, and Maassen, Justice, not participating.


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BOLGER, Justice.


Robert Gillam and two of his business ventures (collectively, Gillam) filed suit, alleging that the Alaska Public Offices Commission should not be allowed to investigate and decide whether Gillam had committed certain campaign finance violations. Gillam alleged that both the Executive Director and the Chair of the Commission were biased and

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that further consideration by the Commission would violate his right to due process protected by the Alaska and federal constitutions and his Alaska constitutional right to a fair investigation. The superior court concluded that Gillam's claims are not ripe and that Gillam has failed to exhaust his administrative remedies. We agree that there is an administrative recusal procedure for Gillam's state law claims and that Gillam must exhaust that remedy before bringing his state law claims to court. We also agree that Gillam's federal due process claim is not ripe because the recusal procedure may resolve that claim.


The Alaska Public Offices Commission is appointed by the governor[1] and charged with interpreting and enforcing Alaska's campaign finance laws.[2] In that capacity, the Commission investigates and adjudicates claims that those laws have been violated. There are five commissioners[3] who appoint a chairperson[4] and who may employ an executive director, as well as any additional staff they require.[5]

A person who suspects a violation of campaign finance laws may file a complaint with the Commission, and the complaint must satisfy several formal requirements.[6] When the Commission receives the complaint, its staff determines whether the complaint satisfies those formal requirements, and, if so, the staff investigates the complaint and prepares a report of its findings.[7] Finally, the Commission holds a hearing and issues a decision,[8] which is appealable to the superior court.[9]

In August 2012 Joel Natwick filed a complaint with the Commission against the three appellants: Gillam, RBG Bush Planes, and McKinley Capital Management. The Commission staff accepted the complaint over Gillam's objection that it failed to meet the formal requirements mentioned above, and it asked Gillam to produce several documents for purposes of an investigation. The Commission requested that an Administrative Law Judge (ALJ) be assigned to oversee the Natwick proceedings, and one was assigned.

In September 2012 there was apparently a meeting between Curtis Thayer, a Deputy Commissioner of the Department of Administration, and appellee Paul Dauphinais, the Executive Director of the Commission. Thayer later testified in a deposition that, at the meeting, Dauphinais asked for a budget increase so the Commission could investigate and thus " get" and " ruin" Gillam. At the same meeting, Dauphinais allegedly mentioned a conversation he had with the Securities and Exchange Commission (SEC) regarding purported wrongdoing that " would bring Mr. Gillam's business down."

Gillam filed suit in superior court in November 2012 against Elizabeth Hickerson, in her capacity as Chair of the Commission, and Paul Dauphinais, in his capacity as Executive Director of the Commission.[10] Gillam invoked 42 U.S.C. § § 1983 and 1988, as well as provisions of the federal and Alaska constitutions, claiming his constitutional rights were being violated in the Natwick matter due to bias on the part of the Commission. Gillam asked that the court enjoin the Commission from being involved in any way with the

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Natwick complaint and appoint a special investigator to investigate the matter. He also asked that an independent ALJ or the superior court conduct any hearing to adjudicate the complaint.

Hickerson and Dauphinais moved to dismiss under Alaska Civil Rule 12(b)(6). They also moved to stay discovery pending the court's decision on dismissal. Gillam opposed the motions to dismiss and moved for a preliminary injunction to stay the Natwick proceedings. Gillam attached to his motion a portion of the transcript of Thayer's deposition testimony as well as an affidavit from former Commission staff member Vullnet Greva to demonstrate the Commission's alleged bias against Gillam.

The superior court granted Gillam leave to submit supplemental briefing in response to the motions to dismiss and to address all pending discovery motions. Gillam submitted briefing, to which he appended additional evidence -- notes from an interview with a former Commission attorney. The superior court then informed the parties that, because of the evidence that had been introduced post-pleading, it would convert the Rule 12(b)(6) motion to dismiss to a Alaska Civil Rule 56 motion ...

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