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Seybert v. Alsworth

Supreme Court of Alaska

February 5, 2016


Page 33

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.

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.].


Page 34



A group of Lake and Peninsula Borough voters filed suit against two local elected officials, alleging various violations of state and local conflict of interest laws and 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.


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 may or 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 complete required financial disclosures.[1] Based on these allegations, Seybert's amended complaint included five counts: counts one through three alleged violations of Alaska's conflict of interest laws codified at AS 39.50 and the implementing regulations.[2] Count four alleged violations of the borough charter and code[3] and the common law conflict of interest doctrine.[4] And count five alleged violations of Alaska's statutory

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prohibition 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 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 Seybert failed to exhaust administrative remedies.[6] The superior court granted summary 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 the statutes at issue, exhaustion of administrative remedies could not be required. Seybert further noted that in concluding exhaustion was required, the superior court relied primarily upon case law involving the doctrine of primary jurisdiction under which " 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." [7] Seybert argued that this doctrine was inapplicable because APOC lacked " ' exclusive' jurisdiction" over enforcement of AS 39.50.[8] Seybert also claimed that the superior court erred in finding ...

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