Ruth Botstein
Linda J. Johnson
Assistant Municipal Attorneys
Municipal Attorney’s Office
P.O. Box 196650
Anchorage, Alaska 99519-6650
Phone: (907) 343-4545
Fax: (907) 343-4550
Email: courtdocs@muni.org
Attorneys for Respondent
IN THE SUPREME COURT FOR THE DISTRICT OF ALASKA
Dewey C. Wells and Samantha Wells
Petitioners,
vs.
Municipality of Anchorage,
Respondent.

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) Supreme Court No. S-17899
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) Trial Court Case No. 3AN-20-07424 CI

OPPOSITION TO PETITION FOR REVIEW
Petitioners Dewey and Samantha Wells own and operate an Anchorage restaurant,
Little Dipper Diner, that intentionally defied the law, staying open for indoor restaurant
dining despite an Anchorage public health emergency order, EO-15, that temporarily
prohibited indoor restaurant dining in an effort to limit the spread of the deadly COVID19 virus in Anchorage. When Petitioners defied this ordinance, creating an imminent
public health risk, the superior court issued a temporary restraining order directing them
to obey the law.

The Wellses now seek interlocutory review of that TRO.

But

interlocutory review would serve no purpose here, because all of Petitioners’ claims are

 either moot or are not yet ripe for decision. The TRO and the underlying public health
order both have expired, so there is no practical relief that this Court can grant to
petitioners—only moot, academic arguments that can be litigated on appeal in due
course. At the same time, Petitioners’ constitutional challenges to EO-15 have not yet
been litigated in the superior court, so there is no decision or ruling for this Court to
review, and no factual record upon which to rely. Because interlocutory review would
provide no practical benefits to anyone, this Court should deny the petition.
Factual and Procedural History
This case arises out of the Mayor of the Municipality of Anchorage’s emergency
COVID-19 order, Emergency Order 15 (EO-15), dated July 31, 2020. [Pet. Exc. 80-821]
This temporary order, called a “Four-Week Reset,” by its terms expired at 11:59 p.m. on
August 30, 2020. [Exc. 80] Among other things, EO-15 restricted restaurants from
offering indoor dining, limiting them to take-out and outdoor dining.

[Exc. 82]

Petitioners operate Anchorage restaurant Little Dipper Diner, but they refused to close
their establishment to indoor dining as required by EO-15. [Tr. 12-16; Exc. 12-14]. They
were aware of the terms of EO-15 in advance of its start date, and in fact closed their
establishment on August 3, 2020 to indoor dining as required by EO-15, but then, in an
act of defiance, reopened for indoor service on August 5, 2020. [Tr. 12-13] Accordingly,
on August 10, 2020, the superior court issued a temporary restraining order, directing
petitioners to comply with the law. [Tr. 38-40, 43]

1

For the Court’s convenience, this pleading cites to the transcript and the “Excerpt
of Record” that Petitioners filed with their Petition.
2

 The court found that Petitioners’ refusal to obey the public health order risked
irreparable harm to the public, which risked illness and death from COVID-19 if public
health mandates were not followed; that the economic interests of the business owners
were adequately protected since they could remain open and offer both outdoor dining
and take-out; and that a purely economic interest could not outweigh the public’s interest
in health and life. [Tr. 38-40] The superior court did not entertain any of petitioners’
broader challenges to the constitutionality of EO-15; it ruled only that the Petitioners
must follow the law while those challenges were fully litigated. [Tr. 38-40]
Under Alaska law, TROs expire in ten days unless extended by the court for good
cause.2 As the August 20 expiration date approached, the Municipality requested and
received a ten-day extension on the TRO. The court ordered the TRO extended to
“September 1, 2020, or to the expiration of EO-15.”3 Thus, when EO-15 expired at 11:59
p.m. on August 30, the TRO simultaneously expired. As of August 31, then, Petitioners
were free to resume indoor dining at their restaurant.
On September 1, 2020, Petitioners answered the Municipality’s complaint. [Exc.
42-57] They asserted counterclaims against the Municipality, alleging that EO-15
violates equal protection, violates due process, is void for vagueness, was entered in
violation of separation of powers principles, and infringes upon the rights of free speech
and assembly. [Exc. 54-56] Petitioners are seeking money damages against the

2

Alaska Civil Rule 65(b).
Attachment A (Order on Motion for Extension of Temporary Restraining Order)
(Aug. 20, 2020).
3

3

 Municipality, a declaratory judgment holding that EO-15 is unconstitutional, and
injunctive relief against the enforcement of EO-15. [Exc. 56] None of these
counterclaims have yet been litigated or adjudicated in the superior court.
Petitioners moved for reconsideration of the TRO on August 17, 2020, arguing
that the court should have continued the case to allow more time for counsel to prepare
for the TRO hearing, that the TRO was not supported by an adequate factual basis, that
the court improperly took judicial notice of certain facts at the TRO hearing, and that
entry of the TRO violated due process. [Exc. 105-14] The superior court requested a
response from the Municipality, and one was filed on August 26. [Exc. 115-22] The
reconsideration motion was denied by operation of law pursuant to Civil Rule 77(k)(4)
thirty days later, on September 25, 2020.
Arguments
I.

Interlocutory Review is Not Warranted and Would Have No Benefit in
this Case.

Alaska Appellate Rule 402(b) explains that interlocutory review “is not a matter of
right,” but is only appropriate when some aspect of the case outweighs the “sound policy
behind the rule requiring appeals or petitions for hearing to be taken only from final
judgments or decisions.” This is not such a case.
Petitioners’ arguments fall into two general categories. First, they attack the
superior court’s issuance of the TRO, arguing that the court should have granted a
continuance instead of holding the TRO hearing on August 10, 2020, improperly took
judicial notice of certain facts, and did not have enough evidence to justify entry of the

4

 TRO. [Pet. 10-13] Second, they attack the constitutionality of the underlying legislation,
EO-15, arguing that the emergency public health order violated substantive due process,
equal protection, the separation of powers doctrine, and was arbitrary. [Pet. 13-15] Even
if these arguments were legally correct—which they are not—they would not justify
interlocutory review under Rule 403.
The first category of arguments, factual and procedural attacks on issuance of the
TRO, are all moot. The TRO expired on August 30, 2020, as did EO-15 itself. This
Court therefore cannot reverse the TRO or provide any other practical relief on these
claims. It could perhaps render an academic opinion about the correctness of the superior
court’s order—but there is simply no need for interlocutory review to issue an advisory
opinion. Adjudication of moot questions does not need to be taken up on a petition basis,
and to do so would be a waste of judicial resources.
The second category of claims are constitutional challenges to former EO-15. But
these claims are both moot—because the ordinance has expired—and unripe—because
the constitutional questions have never been litigated or decided by the superior court.
Petitioners have raised their constitutional challenges in their answer and cross-claims in
the trial court, but nothing more has happened. Other than their unsuccessful attempt to
raise them in a motion for reconsideration, there has been no briefing, no argument, no
hearing, and no superior court decision on any of Petitioner’s complex constitutional
claims. Petitioners are thus attempting to bypass the superior court entirely, and have
these weighty constitutional questions litigated and decided for the first time by this
Court. This Court should reject this attempt and deny the petition. Petitioners can and
5

 should litigate these questions in the superior court and bring them to this Court on
appeal with an adequate factual and legal record and a final judgment suitable for
thoughtful appellate review.
Petitioners hypothesize that EO-15’s restrictions could be re-imposed in a future
ordinance, [Pet. 9], but that entirely speculative possibility does not justify granting their
current petition. EO-15, by its plain terms, was a temporary, four-week measure that has
expired; it has not been extended or renewed. If a future ordinance is passed, then
Petitioners, and other persons affected by the new ordinance, will be free to challenge it
by bringing the matter before the superior court. That court will be best positioned to
address the new claim in light of the language, scope, and effect of the new ordinance and
the facts as they exist when the future ordinance is passed and takes effect. Nothing in
Rule 402, logic, or common sense, suggests that this Court should review moot
challenges to expired legislation on a petition basis on the remote chance that the exact
same legislation is passed at some point in the future.
II.

The Superior Court Committed No Error.

Not only is this case a poor candidate for interlocutory review, but Petitioners’
claims also lack any merit.
The superior court was correct to enter the TRO. The record before the Court left
no reasonable ground for dispute of the essential facts justifying the TRO: Dewey and
Samantha Wells were knowingly operating their business in violation of EO-15, a public
health order premised on the principle that indoor restaurant dining is a threat to the
public health. Tellingly, Petitioners do not dispute that they intentionally defied EO-15.
6

 To be sure, they disagree with that law—but the superior court correctly recognized that
disagreement with the law is not a justification for flouting it. As the court understood,
the only issues on the table at the TRO hearing were whether the Wellses were operating
the Little Dipper Diner in violation of EO-15—a presumptively constitutional and valid
exercise of the Mayor’s broad emergency powers during a public health emergency—and
whether that defiance of the law created a risk of irreparable harm. [Tr. 38] Because this
ordinance had the force of law4 and was presumptively valid,5 the Municipality did not
have any burden of proof at the hearing to justify the policy choices underlying the
ordinance. It needed only to prove that the Wellses were violating the law, and that their
disregard for the law risked irreparable harm to the public health and to the rule of law. In
assessing the balance of hardships and the threat of irreparable harm, the superior court
was also correct in determining that Petitioners’ economic interests in offering indoor
dining during August, 2020, were not nearly as significant as the public’s interest in life
and health, which EO-15 aimed to protect. [Tr. 40]
The superior court also correctly recognized that a TRO hearing was not an
appropriate forum for challenging the policy line-drawing reflected in the emergency
order. While Petitioners may certainly attack the substantive basis of the law in further
proceedings, at the TRO stage the court appropriately accepted the legislative facts and
assumptions underlying the ordinance as valid. After all, in Alaska, courts must accept

4

Anchorage Municipal Code 3.80.040 (emergency ordinances have force of law);
3.80.060 (giving Mayor broad powers in public health emergency to issue orders
“necessary to . . . preserve the public health of the municipality”).
5
Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d 183, 192 (Alaska 2007).
7

 the legislative facts—“those assumptions of fact, involving social, political, economic or
scientific considerations, which a legislature (including a municipal assembly) makes in
the course of reaching the policy decisions which it articulates in the form of statutes and
ordinances”—as presumptively valid exercises of discretion.6
The government does not have any obligation to prove that its law is the very best
way, or even probably the best way, to solve the problem it targets: “It has never been
necessary that a legislature's legislative factual assumptions be ‘probably right’ to sustain
a statute. It is sufficient if a reasonable legislator could believe them to be true.”7 For
these reasons, the superior court committed no error in declining to require litigation of
underlying scientific questions such as the “correlation between indoor dining and
increases in the transmission of COVID-19” [Pet. 13] before granting the TRO.
The evidence the court had before it (or could take judicial notice of as public
records)—including the public health findings contained in EO-15 itself; federal, state,
and local emergency declarations based on the dangers posed by COVID-19; the Alaska
Court System’s own COVID-19 emergency orders; and the CDC’s guidance about
COVID-19—were more than sufficient to enable it to conclude that a reasonable
decisionmaker could have believed true the facts and assumptions underlying EO-15.
Nothing more was required to justify the entry of the TRO here. Petitioners are therefore
incorrect when they argue that the superior court should have “determined the
constitutionality of EO-15 prior to entering a restraining order.” [Pet. 13]

6
7

To the

Erickson v. Municipality of Anchorage, 662 P.2d 963, 970 (Alaska App. 1983).
Id.
8

 contrary, the court properly accepted the law as presumptively valid and focused on
whether the Wellses’ disregard of the law threatened irreparable harm to others.
Petitioners’ procedural attacks on the TRO hearing are similarly meritless. They
suggest that their procedural due process rights were violated because they did not have
enough time to prepare for the hearing and were surprised by the Municipality witness’s
testimony. [Pet. 11] But the short August 10, 2020 hearing concerned only an emergency,
expedited request for a 10-day temporary restraining order—and in this context,
Petitioners had limited procedural rights.
In fact, Alaska Civil Rule 65 allows courts to grant this type of relief on an ex
parte basis—meaning that the superior court could have entered a TRO without even
notifying Petitioners that a motion had been filed and that a hearing was being held. The
nature of the relief requested—an emergency order to prevent Petitioners from continuing
to engage in ongoing violations of the law—necessitated quick court action and did not
allow for full pretrial procedures like depositions. Nevertheless, Petitioners were
provided with advance notice of the hearing and were able to retain experienced counsel
who appeared at the hearing, cross-examined the MOA’s witness, and made legal
arguments. Petitioners’ suggestion that they were disserved because their counsel did not
have time to prepare is also undercut by the fact that their attorney had already made the
same legal arguments in a very similar case the week before, and appeared and argued in

9

 a TRO hearing in the related matter.8 The Court did not err in refusing to continue the
TRO hearing, and nothing about the process violated the law or was unfair to Petitioners.
Respondents’ substantive due process claims are equally infirm. As an initial
matter, Petitioners have waived this argument, for it was first raised in a motion for
reconsideration and this Court has held that reconsideration cannot be used to raise new
arguments.9 In any case, it is questionable whether Petitioners’ economic interest in
providing indoor dining during the month of August would qualify as a protectable due
process interest anyway; EO-15 effected a temporary change in the way Little Dipper
Diner could do business, but was a short-term measure that allowed Little Dipper to
continue to keep its doors open for outdoor dining, curbside, and delivery.10 And even if
Petitioners’ business was negatively affected by the lack of indoor dining, the court
committed no error in finding that its purely economic interest was outweighed by the
risks to public health and safety occasioned by its lawbreaking conduct. [Tr. 40] The
public health context of this case is also significant because even where protectable
interests are at stake, due process does not require a pre-deprivation hearing where there
exists “an emergency situation in which the public health, safety or welfare require

8

See Municipality of Anchorage v. Kriner’s Diner, LLC, No. 3AN-20-07394 CI
(TRO hearing held August 7, 2020). In the Kriner’s Diner litigation, another superior
court judge issued a nearly identical order to the one that Petitioners challenge here. See
Appx. A. The fact that a second superior court judge issued essentially the same TRO as
did Judge Marston here also reinforces the correctness of the order.
9
DeNardo v. GCI Comm’n Corp., 983 P.2d 1288, 1290 (Alaska 1999).
10
See Holding v. Municipality of Anchorage, 63 P.3d 248, 251 (Alaska 2003)
(law limiting business’s ability to advertise “has no legally significant economic impact
on Holding because he may continue to lease his property, even though it may be on
somewhat less valuable terms”).
10

 summary action.”11 Such was the case with the motion for a TRO to require Petitioners
to follow Anchorage’s emergency public health order.
Finally, Petitioners’ equal protection argument illustrates why constitutional
arguments should first be litigated and decided in the superior court rather than
adjudicated in the appellate court in the first instance. Petitioners suggest that EO-15
should have drawn different lines between permissible activities and those that were too
dangerous. In support, they make a wide variety of unsupported factual assertions that are
far afield from anything that the superior court heard or decided. The Wellses assert that
“fully enclosed tents with weather-proof walls” are “akin to that of an indoor building”
with respect to transmission of COVID-19; that the ordinance was arbitrary because it
allowed “other businesses [to] put[] up fully enclosed tents without ventilation systems
outside”; that, in practice, EO-15 “almost universally favored businesses with access to
outdoor tents and leases and permits that allows [sic] use of such”; and that “certain
restaurants—including those in which the Mayor himself owns a financial interest—
remained open to attract large crowds.” [Pet. 13-15] It is not surprising that the petition
includes no citations to the record, or any source, for any of these inflammatory factual
assertions, as there is simply no evidence in the record supporting them—because none of
these factual issues has ever been litigated in the superior court. If Petitioners want to
build an equal protection claim based on facts about the adequacy of ventilation in
specific kinds of tent walls and the business practices and financial profitability of

11

Frontier Saloon, Inc. v. Alcoholic Beverage Control Bd., 524 P.2d 657, 661
(Alaska 1974).
11

 various different Anchorage restaurants during August, 2020, they can litigate their
counterclaims and try to introduce evidence in the superior court on those topics. But
Petitioners cannot maintain a viable equal protection claim based on unsupported “facts”
that they hypothesize out of whole cloth, and this Court cannot sensibly conduct appellate
review of a constitutional claim that has been neither litigated nor ruled upon in the lower
court. The constitutional claims in this case have yet to be litigated and are not ready for
appellate review. This Court should deny the petition.
Conclusion
Petitioners’ claims are moot because the TRO they challenge and the underlying
law it was rooted in have both expired. Their constitutional claims also are not ripe for
appellate review because they have yet to be litigated in the superior court. For these
reasons, there is no need for interlocutory review. This Court should deny the petition.
Respectfully submitted this 8th day of October, 2020.
KATHRYN R. VOGEL
Municipal Attorney
By:

12

/s/Ruth Botstein
Ruth Botstein
Assistant Municipal Attorney
Alaska Bar No. 9901016
Linda J. Johnson
Assistant Municipal Attorney
Alaska Bar No. 8911070

 Certificate of Service
I certify that on 10/08/2020 I caused to be emailed
a true and correct copy of the foregoing to:
Blake F. Quackenbush
blake@bfqlaw.com
/s/ Cathi Russell
Cathi Russell, Legal Secretary
Municipal Attorney’s Office

13

 IN THE SUPERIOR COURT OR THE STATE OF ALASKA
THIRD JUDICIAL DISTRICT AT ANCHORAGE

Municipality of Anchorage,
Plaintiff,

vs.

Kriner?s Diner. LLC. et al,

Defendants. CI

 

 

ORDER GRANTING MOTION FOR TEMPORARY
INJUNCTION

The Plaintiff?s motion for a temporary injunction is GRANTED.
Defendants are ordered to comply with 130-] 5. Speci?cally they are prohibited
from providing, allowing or facilitating, directly or indirectly, indoor dining.

The Plaintiff has demonstrated that the Anchorage public will suffer
irreparable harm by allowing businesses such as Kriner?s Diner to violate
Emergency Order 15. Specifically, that indoor dining exacerbates the risk of the
spread If infected with COVID-19, individuals face a signi?cant

risk of serious harm to their health to include death.

The economic interests ofKriner?s Diner and businesses similarly situated
are adequately protected by the ability to continue business operations by serving
food outdoors, curbside, to-go orders or for delivery. That the nature of the
potential harm to the Anchorage public is of such significant importance, that the

Appendix A
Page 1 of 2

closure of a business would be warranted. A property interest cannot outweigh a

person?s interest in life.

The issues raised by the Plaintiff, speci?cally the Defendant?s willful non-
compliance with EO-IS, raise serious and substantial questions regarding the
merits of the case. The Plaintiff demonstrated and the defendants did not oppose
that the Mayor of Anchorage has the authority to issue emergency orders; that E0-
15 was issued; that the defendants received notice of and that the

defendants willfully violated 5.
IT IS SO ORDERED.

Dated at Anchorage, Alaska this 7th day of August 2020.

 

 


Superior Court Judge

A
ll

9/ 7 ?ii 
I certify that on a copy
ol?lhc above was mai ed to each following

at their addresses 
Nancy McKewin, Judicial A 
@H?ve ?mt 10% -

 

Appendix A
Page 2 0f 2