Anderson v. Municipality of Anchorage

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ROBERT ANDERSON,
Plaintiff,
vs.
MUNICIPALITY OF ANCHORAGE,
Defendant.
Case No. 3:21-cv-00139-JMK
ORDER DENYING WITHOUT
PREJUDICE MOTION TO
CERTIFY
Before the Court at Docket 37 is Plaintiff Robert Anderson’s motion entitled
“Fed.R.Civ.P 5.1(b) Constitutional Question.” Defendant Municipality of Anchorage (the
“Municipality”) opposes the motion at Docket 40. Mr. Anderson did not file a reply. For
the reasons stated below, the motion is DENIED WITHOUT PREJUDICE.
Mr. Anderson moves this Court to certify to the Alaska Attorney General that
the constitutionality of AS 29.45.130(b) is at issue in this litigation.1 	He moves under
Federal 	Rule 	of 	Civil 	Procedure 	5.1(b), 	which 	implements 	28 	U.S.C. 	§ 	2403.
Section 2403(b) provides that when “the constitutionality of any statute of [a] State
affecting the public interest is drawn into question,” but “to which a State or any agency,
officer, or employee thereof is not a party,” the court shall certify the question to the State’s
1 See generally Docket 37.
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Anderson v. Municipality of Anchorage 	Case No. 3:21-cv-00139-JMK
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attorney general and “permit the State to intervene for the presentation of evidence” and
“argument on the question of constitutionality.” Accordingly, Rule 5.1(a) requires that any
party who files “a pleading, written motion, or other paper drawing into question the
constitutionality of a . . . state statute must promptly file a notice of constitutional question
stating the question and identifying the paper that raises it” and serve the notice on the state
attorney general. Under Rule 5.1(b), the court must then certify to the attorney general that
a state statute has been questioned under 28 U.S.C. § 2403.
The Ninth Circuit has reiterated the standard for when a statute is “drawn
into question,” citing the Supreme Court’s language in United States v. Lynch:
The validity of a statute is not drawn in question every time
rights claimed under such statute are controverted, nor is the
validity of an authority, every time an act done by such
authority is disputed. 	The validity of a statute or the validity
of an authority is drawn in question when the existence, or
constitutionality, or legality of such statute or authority is
denied, and the denial forms the subject of direct inquiry.2
Certification under Rule 5.1 requires “more than ‘the mere objection to an exercise of
authority under a statute, whose validity is not attacked.’”3 	This standard achieves the
Rule’s purpose to ensure that the attorney general has an opportunity to defend the statute
before it is declared unconstitutional.4
2 Peruta v. Cnty. of San Diego, 771 F.3d 570, 575 (9th Cir. 2014), reh’g granted, 824 F.3d
919 (9th Cir. 2016) (quoting United States v. Lynch, 137 U.S. 280, 285 (1890)).
3 Id. (quoting Jett Bros. Distilling Co. v. City of Carrollton, 252 U.S. 1, 6 (1920)).
4 See 28 U.S.C. § 2403(b); Fed. R. Civ. P. 5.1(c) (“Before the time to intervene expires,
the court may reject the constitutional challenge, but may not enter a final judgment holding the
statute unconstitutional.”).
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Anderson v. Municipality of Anchorage 	Case No. 3:21-cv-00139-JMK
Order Denying Motion to Certify 	Page 3
Mr. 	Anderson 	notes 	that 	his 	Complaint 	does 	not 	directly 	challenge
AS 29.45.130(b).5 	The Court agrees. Although difficult to parse, the Court understands
Mr. Anderson’s Complaint as challenging the Municipality’s policy “to enter private
residential property without consent or implied license.”6 While the Complaint mentions
AS 29.45.130(b), it does not attack the statute as unconstitutional.7 Rather, Mr. Anderson
alleges that the Municipal tax assessor, pursuant to Municipal policy, entered his home’s
curtilage after Mr. Anderson “removed any implied license for department of finance
property appraisal division personnel to enter plaintiff’s property for any purpose without
prior written consent.”8 	Although Mr. Anderson alleges that the Municipality was
intending to act under color of AS 29.45.130(b), that is not the same as an allegation that
the statute itself is unconstitutional.9
The 	parties 	agree 	that 	Mr. 	Anderson 	has 	not 	plead 	a 	challenge 	to
AS 29.45.130(b); however, Mr. Anderson argues that the Municipality has drawn the
statute into question with its affirmative defense that it was “privileged to act as it did in
compliance with AS 29.45.130(b).”10 	He suggests that the Municipality “desires state
5 Docket 37 at 1–2.
6 See Docket 1 at ¶ 153.
7 Id. at 44 (requesting a declaration that “Anchorage’s policy of data collection is [an]
unreasonable search”).
8 Id. at ¶ 21.
9 See Reese-Bey v. Ochoa, Case No. CV 20-06693-JAK (DFM), 2021 WL 7184971, at *8
(C.D. Cal. Dec. 29, 2021), report and recommendation adopted, No. CV 20-06693-JAK (DFM),
2022 WL 577257 (C.D. Cal. Feb. 9, 2022) (declining to certify under Rule 5.1 because “Plaintiffs’
constitutional claims arise not from the operation of [California statutes authorizing Defendant to
impound a vehicle] but from the manner in which Defendants applied them to Plaintiffs” when
Defendant allegedly seized the vehicle in violation of Fourth Amendment).
10 Docket 37 at 2 (quoting Docket 22 at ¶ 3).
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Anderson v. Municipality of Anchorage 	Case No. 3:21-cv-00139-JMK
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participation in the case” and believes the State should be given an opportunity “to
acknowledge 	how 	applicable 	standards 	of 	statutory 	interpretation 	apply 	to
AS 29.45.130(b).”11 In its opposition, the Municipality explains its defense and argues that
“a ruling either way does not affect the constitutionality of the statute.”12 The Court agrees
with the Municipality that certification is premature at this time. Without the parties’ legal
theories before the Court, it cannot hold that the Municipality’s affirmative defense actually
draws into question the constitutionality of AS 29.45.130(b).13 Indeed, as the Municipality
suggests, 	the 	Court 	could 	imagine 	multiple 	scenarios 	in 	which 	the 	state 	law’s
constitutionality is wholly irrelevant to its ruling.14
Because there is no “direct inquiry” into the legality of AS 29.45.130(b)
currently before the Court, it declines to certify a constitutional question to the Alaska
Attorney General.15 	The motion is DENIED WITHOUT PREJUDICE, meaning that
11 Id. at 3–4.
12 Docket 40 at 2.
13 See Mockeridge v. Alcona Cnty. by Bd. of Commissioners, No. 1:21-CV-12896, 2023
WL 2664197, at *2–3 (E.D. Mich. Mar. 28, 2023) (certifying constitutional challenge where
plaintiffs argued that state law was unconstitutional in response to defendant’s motion for summary
judgment that “explicitly relied” on state law to justify trespass under the Fourth Amendment, but
noting that the court had declined to certify when plaintiffs’ constitutional challenges were merely
“anticipatory” of the defense).
14 See Rodriguez v. Providence Cmty. Corrs., Inc., 191 F. Supp. 3d 758, 769 (M.D. Tenn.
2016) (“The fact that state law protections are not always coextensive with the protections afforded
by the Constitution does not automatically invalidate the state law. Rather, it imposes a burden on
state actors to ensure that their conduct comports with both.”); see also Peruta v. Cnty. of San
Diego, 771 F.3d 570, 575–76 (9th Cir. 2014), reh’g granted, 824 F.3d 919 (9th Cir. 2016) (finding
that Rule 5.1 did not apply even though “the opinion engages in analysis and interpretation of
California statutes” because “the only objection raised and decided is the exercise of authority
under such statutes, not the statutes themselves.”).
15 United States v. Lynch, 137 U.S. 280, 285 (1890)
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Anderson v. Municipality of Anchorage 	Case No. 3:21-cv-00139-JMK
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Mr. Anderson or the Municipality may refile a Rule 5.1 motion if the constitutionality is
drawn into question by a future pleading, written motion, or other paper.
IT IS SO ORDERED this 13th day of April, 2023, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
United States District Judge
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