State of Alaska v. Chevron Chemical Company Phillips Pacific Chemical Company Western Farm Service, Inc. Etc.

WALLACE, Circuit Judge,

dissenting:

The narrow issue upon which the majority opinion turns is whether Alaska law provides the State with the authority to file a federal antitrust action, in its own name, on behalf of the University. In concluding that it does, the majority ignores the unique and substantial independence granted to the University by the Alaska constitution and statutes. Therefore, I respectfully dissent. I would hold that the State has no standing to seek damages on behalf of the University, and I would reach the remaining issues the majority avoids.

The Alaska Supreme Court has held that “[t]he [Ujniversity is a corporation of independent authority established by the Alaska Constitution,” with standing to assert its legal interests against the State. Alaska v. University of Alaska, 624 P.2d 807, 818 (Alaska 1981). As a constitutional corporation, owing its existence to a charter from the people of the State, the basic corporate power to sue and be sued inheres in the University. University of Alaska v. National Aircraft Leasing, Ltd., 536 P.2d 121, 127 (Alaska 1975). Although this power has also been recognized by the Alaska legislature, Alaska Stat. § 14.40.040 (1), the Alaska Supreme Court has held that the University has the power to sue and be sued in its own name regardless of this enactment. Id. I *1304 have found no indication that this power is one that has been granted to any other state “instrumentality.”

The University enjoys additional authority as well. For example, the University independently fixes the salaries of its employees, controls and manages its own real estate, personal property, and money, has independent discretion to invest any and all funds or property, and may lease or sell federal land grants without the approval of the State legislature or executive. National Aircraft Leasing, supra, 536 P.2d at 123-24 . Thus, while the University is, undeniably, an “instrumentality of the State itself,” id. at 124 , it retains “the status of a juristic person,” id. at 125 , a status which in some limited respects is “co-equal rather than subordinate to that of the executive or legislative arms of the government.” Id. at 128 (footnote omitted).

The majority’s reliance on National Aircraft Leasing, therefore, is misplaced. There, the issue was whether the State’s conditional waiver of sovereign immunity, which denied jury trials to those pressing claims against it, should be extended to suits against the University. The Alaska Supreme Court held only that the University is “in function and character such an arm or instrumentality of the state as to bring it within the scope of those statutes which govern the conditional waiver of sovereign immunity in the state.” National Aircraft Leasing, supra, 536 P.2d at 123 . This simply does not support the majority’s conclusion that the State is authorized to assert the University’s own legal interests against third parties.

The majority also errs in relying upon Alaska Stat. § 44.80.010 . Contrary to the majority’s assertion, it provides no clear indication that the State attorney general is permitted to sue on behalf of the University in federal court. I quote the statute’s pertinent language.

If a statute or regulation designates a state department, agency, board, commission or public officer as a necessary or proper party to prosecute or defend an action in a court of the state, [then the attorney general is authorized to prosecute or defend the action].

Id. (emphasis added). This statute, by its own terms, applies only to “court[s] of the state,” and thus does not grant authority to prosecute federal antitrust actions, an area of exclusive federal jurisdiction. 15 U.S.C. § 15 ; Freeman v. Bee Machine Co., 319 U.S. 448 , 451 n.6, 63 S.Ct. 1146 , 1148 n.6, 87 L.Ed. 1509 (1942). Focusing on the words “in any court,” the majority concludes that the statute allows the State to sue, in its own name, on behalf of the University. Ante at 1302 n.5. This language, however, simply suggests that the Attorney General may bring suit “in the name of the State.” Alaska Stat. § 44.80.010 (3). It does not indicate that the State may present claims on behalf of the University where, as here, the State itself has suffered no injury and has no independent interest in the lawsuit. Moreover, the statute applies only to State departments, agencies, boards, commissions or public officers. The University was established as a corporation under the Alaska constitution, and is defined in Alaska Stat. § 14.40.040 as a state “corporation.” It is not a department, agency or office of the other two branches of State government. National Aircraft Leasing, supra, 536 P.2d at 128 & n.36. In fact, it is mentioned nowhere in the portion of the Alaska Statutes entitled “State Government,” see Alaska Stat., Tit. 44, § 44.03.010 et seq. Finally, the University is expressly empowered to litigate on its own behalf. Id. § 14.40.-040(1).

The statutory provision relied on by the majority is too ambiguous to support its conclusion that the State may file a federal antitrust action on behalf of the University. In my view, the inference the majority draws from this provision is not sufficient to suggest a legislative intent to compromise the considerable degree of constitutional and statutory autonomy enjoyed by the University. Therefore, I would affirm the district court on this issue.