Jacobus v. Alaska, A97-0272 CV (JKS).

• Decision Date: 10 April 2001
• Docket Number: No. A97-0272 CV (JKS).,A97-0272 CV (JKS).
• Citation: 182 F.Supp.2d 881
• Court: U.S. District Court — District of Alaska
• Parties: Kenneth P. JACOBUS; Kenneth P. Jacobus, P.C.; Wayne Anthony Ross; Ross & Miner, P.C.; and Scott A. Kohlhaas, Plaintiffs, v. State of ALASKA; and State of Alaska, Alaska Public Offices Commission, Defendants.

182 F.Supp.2d 881

Kenneth P. JACOBUS; Kenneth P. Jacobus, P.C.; Wayne Anthony Ross; Ross & Miner, P.C.; and Scott A. Kohlhaas, Plaintiffs, v. State of ALASKA; and State of Alaska, Alaska Public Offices Commission, Defendants.

No. A97-0272 CV (JKS).

United States District Court, D. Alaska.

April 10, 2001.

ORDER

SINGLETON, District Judge.

INTRODUCTION

Presently before the Court are motions requesting summary judgment filed by both Defendants and Plaintiffs. See Docket No. 39 (Mot.); 40A (Opp'n/Mot.); 42 (Reply/Opp'n). Plaintiffs have requested oral argument on the motions for summary judgment. See Docket No. 43.¹

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs are lawyers who regularly contribute their services pro bono to those political parties with views and programs they endorse. In May of 1996, the Alaska Legislature enacted 48 SLA 1996 (the "Act"), which addresses election campaigns, campaign financing, and related topics. The Act, which became effective on January 1, 1997, defines "contributions" to political parties and, in addition to imposing other restrictions, limits contributions to political parties to $5,000 per individual per year and prohibits certain contributions to parties by corporations and other entities.² It appears that in the ordinary course of business Plaintiffs have made contributions to and incurred expenses on behalf of the parties of their choice in excess of the Act's $5,000 per person limit. They expect to continue this practice. Plaintiffs therefore bring this action arguing that attempts to limit the donation of their professional services to the parties of their choice infringes their rights under the United States Constitution. They seek a construction of the Act that would exempt from its coverage the kinds of contributions they wish to make.

This Court stayed all proceedings in this action pending construction of the statute at issue by the courts of the State of Alaska. See Docket No. 17. On April 16, 1999, the Alaska Supreme Court issued a decision affirming in part and reversing in part Judge Wolverton's decision, and on February 22, 2000, the United States Supreme Court denied a petition for a writ of certiorari filed by the Alaska Civil Liberties Union. See State v. Alaska Civil Liberties Union, 978 P.2d 597 (Alaska 1999), cert. denied, 528 U.S. 1153, 120 S.Ct. 1156, 145 L.Ed.2d 1069 (2000) ("AkCLU"). Presently before the Court are motions requesting summary judgment regarding the legality of certain provisions of the Act that were not addressed by the Alaska Supreme Court. See Docket Nos. 39; 40A. This Court has jurisdiction under 28 U.S.C. § 1331. See 28 U.S.C. § 1331.

DISCUSSION

I. Standard of Review

A. Summary Judgment

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, "[a] party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may ... move with or without supporting affidavits for a summary judgment in the party's favor upon all or any part thereof." See Fed.R.Civ.P. 56(a). Summary judgment is appropriate if the Court finds that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See Fed.R.Civ.P. 56(c). Courts will construe all evidence and draw all evidentiary inferences in favor of the non-moving party. See 10A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 2727, at 459, 459 n. 5 (3d ed.1998) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)).

A dispute over a material fact exists if the evidence would allow a reasonable fact-finder to return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id. at 247-48, 106 S.Ct. 2505. The non-moving party may defeat the summary judgment motion by producing sufficient specific facts to establish that there is a genuine issue of material fact for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, mere allegations of factual dispute, without more, will not defeat an otherwise proper motion. See Provenz v. Miller, 102 F.3d 1478, 1489-90 (9th Cir. 1996); Angel v. Seattle-First Nat'l Bank, 653 F.2d 1293, 1299 (9th Cir.1981) ("A motion for summary judgment cannot be defeated by mere conclusory allegations unsupported by factual data."). It is appropriate for the Court to decide the issues before it on summary judgment as there is no dispute as to any material fact.

B. Statutory Construction

The Supreme Court has instructed courts reviewing an agency's construction of a statute, such as the Act, to apply a two-prong test. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under the analysis in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., the reviewing court must first examine the statute itself to determine whether Congress has spoken directly to the precise question. See Chevron, 467 U.S. at 842, 104 S.Ct. 2778. "If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842-43, 104 S.Ct. 2778. When, however, an agency's interpretation of a statute is in conflict with the plain language of the statute, reviewing courts should not defer to the agency's interpretation. See Downey v. Crabtree, 100 F.3d 662, 666 (9th Cir. 1996) (quoting Nat'l R.R. Passenger Corp. v. Boston & Me. Corp., 503 U.S. 407, 417, 112 S.Ct. 1394, 118 L.Ed.2d 52 (1992)).

Second, "if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." See Chevron, 467 U.S. at 843, 104 S.Ct. 2778. "In determining whether an agency's construction is permissible, the court considers whether Congress has explicitly instructed the agency to flesh out specific provisions of the general legislation, or has impliedly left to the agency the task of developing standards to carry out the general policy of the statute." Tovar v. United States Postal Serv., 3 F.3d 1271, 1276 (9th Cir.1993).

If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.

Chevron, 467 U.S. at 843-44, 104 S.Ct. 2778; see also Ass'n of Pub. Agency Customers, Inc. v. Bonneville Power Admin., 126 F.3d 1158, 1169 (9th Cir.1997) ("When relevant statutes are silent on the salient question, we assume that Congress has implicitly left a void for an agency to fill. We must therefore defer to the agency's construction of its governing statutes, unless that construction is unreasonable."). Courts are to apply the Chevron test in chronological order beginning with the first prong. See Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. The second prong of the test is only used if the plain language of the statute is ambiguous, unclear or absurd. See Bowen v. Hood, 202 F.3d 1211, 1218 (9th Cir.2000); Defenders of Wildlife v. Browner, 191 F.3d 1159, 1162 (9th Cir.1999).

In this case, the Court is not considering a federal statute. Its goal is to interpret the state statute as it believes the Alaska Supreme Court would interpret it. Nevertheless, the Court concludes that the Alaska Supreme Court would apply a methodology similar to the one adopted by the United States Supreme Court in the Chevron line of cases. See Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987) (applying reasonableness standard to agency's interpretation); see also Totemoff v. State, 905 P.2d 954, 968 (Alaska 1995).

II. Donations to Political Parties

The Act's requirement that "[a]n individual may contribute not more than ... $5,000 per year to a political party," see AS 15.13.070(b)(2), has been upheld by the Alaska Supreme Court, see AkCLU, 978 P.2d at 625. The Act states that a contribution

(A) means a purchase, payment, promise or obligation to pay, loan or loan guarantee, deposit or gift of money, goods, or services for which charge is ordinarily made and that is made for the purpose of influencing the nomination or election of a candidate, and in AS 15.13.010(b)³ for the purpose of influencing a ballot proposition or question, including the payment by a person other than a candidate or political party, or compensation for the personal services of another person, that are rendered to the candidate or political party;

(B) does not include

(i) services provided without compensation by individuals volunteering a portion or all of their time on behalf of a candidate or ballot proposition or question, but it does include professional services volunteered by individuals for which they ordinarily would be paid a fee or wage;

(ii) services provided by an accountant or other person to prepare reports and statements required by this chapter; or

(iii) ordinary hospitality in a home[.]

See AS 15.13.400(3). In AkCLU, the Alaska Supreme Court did not address, and the parties disagree as to whether donations of money and personal services provided to political parties that are not made for the explicit purpose of nominating or electing a candidate (e.g., for newsletters, issue advocacy, party building, promoting ballot issues and voter registration) are...