Brause v. STATE, DEPT. OF H. & SS

• Decision Date: 17 April 2001
• Docket Number: No. S-9376.,S-9376.
• Citation: 21 P.3d 357
• Parties: Jay BRAUSE and Gene Dugan, Appellants, v. STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, Bureau of Vital Statistics, and the Alaska Court System, Appellees.
• Court: Alaska Supreme Court

21 P.3d 357

Jay BRAUSE and Gene Dugan, Appellants, v. STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, Bureau of Vital Statistics, and the Alaska Court System, Appellees.

No. S-9376.

Supreme Court of Alaska.

April 17, 2001.

Robert H. Wagstaff, Anchorage, for Appellants.

John B. Gaguine, Assistant Attorney General, Bruce M. Botelho, Attorney General, Juneau, for Appellees.

Before FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

OPINION

MATTHEWS, Justice.

The underlying issue in this case is whether Jay Brause and Gene Dugan, a same-sex couple who are precluded from marrying, can be denied benefits which are by law available only to married people. The superior court dismissed this case as to this issue, based on the State's contention that Brause and Dugan's complaint did not challenge the denial of any specific benefit to them and they did not show that they had standing to challenge the denial of any specific benefit. The court's dismissal was "without prejudice to subsequent filings" "where a particular right is at issue and being challenged — or a particular benefit." Without first seeking to amend their complaint to allege that they were denied specific benefits, Brause and Dugan appeal. We affirm because the superior court did not abuse its discretion in concluding that no actual controversy ripe for adjudication had been pleaded.

Brause and Dugan's complaint contains three counts. The first two counts challenge on state constitutional grounds the State's refusal under existing Alaska statutes to grant them a marriage license. The adoption of article I, section 25 of the Alaska Constitution, effective January 3, 1999, mooted these counts. Now, as a matter of state constitutional law, "[t]o be valid or recognized in this State, a marriage may exist only between one man and one woman."¹

Count 3 challenges, among other things, on state and federal constitutional grounds AS 25.05.013(b), which provides: "A same-sex relationship may not be recognized by the state as being entitled to the benefits of marriage." Count 3 does not allege that appellants have been denied any specific benefits. It alleges generally that

.013 violate[s] the Constitutions of the State of Alaska and the United States inasmuch as persons of the same sex are denied the due process of law, equal protection of law, recognition of their privacy, full faith and credit, and the equal protection of the laws as guaranteed by the Constitutions of Alaska and the United States.

This allegation is followed by a request for a declaration that section .013 "violates the Constitutions of the State of Alaska and the United States."

STANDARD OF REVIEW

Alaska Statute 22.10.020(g) grants to superior courts the power to issue declaratory judgments in cases of actual controversy. The language of the statute makes it explicit that whether to issue a declaration is a discretionary decision committed to the superior court.² This court has previously noted that "judicial discretion was intended to play a significant role in the administration [of the declaratory judgment act]."³ Therefore we will reverse a superior court's dismissal of a declaratory judgment action which is based on prudential grounds only when we find that the superior court abused its discretion.

WAS THERE AN "ACTUAL CONTROVERSY"?

Under AS 22.10.020(g) the superior court, "[i]n case of an actual controversy ... upon the filing of an appropriate pleading, may declare the rights and legal relations of an interested party seeking the declaration ...." This statute explicitly requires "an actual controversy."

The "actual controversy" language in AS 22.10.020(g) reflects a general limitation on the power of courts to entertain cases; similar language is used in federal law.⁴ It encompasses a number of more specific reasons for not deciding cases, including lack of standing, mootness, and lack of ripeness.⁵ Although these are interrelated doctrines, they also have distinct elements.⁶ We believe that it was not an abuse of discretion to dismiss the complaint in this case on lack-of-ripeness grounds.

The ripeness doctrine requires a plaintiff to claim that either a legal injury has been suffered or that one will be suffered in the future.⁷ The degree of immediacy of a prospective injury needed to satisfy the ripeness doctrine has not been systematically explored in our case law. Instead, our cases contain statements such as "`[a]dvisory opinions' are to be avoided,"<sup>8</sup> or "[t]he ripeness doctrine forbids judicial review of `abstract disagreements,'"⁹ or "courts should decide only `a real, substantial controversy,' not a mere hypothetical question."¹⁰ This lack of particularity is not surprising, for there is no set formula that can identify whether a case is or is not ripe for decision. Instead, a number of factors must be considered.

According to Federal Practice and Procedure, a leading text on federal jurisdiction, the central concern of ripeness "is whether the case involves uncertain or contingent future events that may not occur as anticipated, or indeed may not occur at all."¹¹ This text goes on to set out both abstract and practical formulations of ripeness. The former is "whether ... there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment."¹² The more practical formulation is said to be: "[R]ipeness turns on `the fitness of the issues for judicial decision' and `the hardship to the parties of withholding court consideration.'"¹³

Federal Practice and Procedure discusses the factors which underlie the ripeness doctrine:

The central perception is that courts should not render decisions absent a genuine need to resolve a real dispute. Unnecessary decisions dissipate judicial energies better conserved for litigants who have a real need for official assistance. As to the parties themselves, courts should not undertake the role of helpful counselors, since refusal to decide may itself be a healthy spur to inventive private or public planning that alters the course of possible conduct so as to achieve the desired ends in less troubling or more desirable fashion. Defendants, moreover, should not be forced to bear the burdens of litigation without substantial justification, and in any event may find themselves unable to litigate intelligently if they are forced to grapple with hypothetical possibilities rather than immediate facts. Perhaps more important, decisions involve lawmaking. Courts worry that unnecessary lawmaking should be avoided, both as a matter of defining the proper role of the judiciary in society and as a matter of reducing the risk that premature litigation will lead to ill-advised adjudication. These concerns translate into an approach that balances the need for decision against the risks of decision. The need to decide is a function of the probability and importance of the anticipated injury. The risks of decision are measured by the difficulty and sensitivity of the issues presented, and by the need for further factual development to aid decision.¹⁴

In the present case Brause and Dugan claim on appeal that AS 25.05.013(b) denies them at least 115 separate rights which are afforded to people who are able to marry. These include, Brause and Dugan argue, "the denial of health coverage, forms of insurance, equal participation in pension and retirement plans, as well as testamentary and property rights." There is no doubt that at least in some circumstances married partners have rights that are denied unmarried domestic partners, and the subjects specifically identified by Brause and Dugan may be areas where inequality exists. But lacking in Brause and Dugan's brief is any assertion that they have been or in their current circumstances that they will be denied rights that are available to married partners.

The State argues that AS 25.05.013(b) is a "purely symbolic" statement lacking in "independent legal significance." The State contends that AS 25.05.013(b) does not deprive Brause and Dugan of rights, rather "what excludes [them] from the `115 separate rights' and the `benefits of marriage' is the language of each of the statutes ... creating rights and benefits based upon marital status...." It is one or more of these statutes that may be challenged, the State continues, but the challenge must be mounted by parties who are substantially injured by the particular statute in question. Further, in such a case, the particular statute must be examined independently under the "sliding scale" analysis used by Alaska courts to test the constitutionality of statutes under the equal rights clause of the Alaska Constitution, and "[s]uch analysis cannot be applied to AS 25.05.013(b), the symbolic enactment." The State describes by contrast a more recently filed case pending in the superior court in Anchorage in which a number of same-sex couples, one of whom is employed by the State, allege that they are denied specific health insurance and pension benefits in violation of their constitutional rights to equal protection.

Given the level of abstraction of this case as presented, we believe that many of the considerations on which the doctrine of ripeness is based counsel in favor of dismissal. Without more immediate facts it will be difficult to deal intelligently with the legal issues presented. The issues themselves are difficult, presenting a case of first impression in Alaska. In order to grant relief to Brause and Dugan, the superior court would have to declare a statute unconstitutional. This is, of course, a power that courts possess. But it is not a power that should be exercised unnecessarily, for doing so can undermine public trust and confidence in the courts and be interpreted as an indication of lack of respect for the legislative and executive branches of government. Further, ruling on the constitutionality of ...