Abood v. Gorsuch, S-706
| Citation | 703 P.2d 1158 |
| Decision Date | 02 August 1985 |
| Docket Number | No. S-706,S-706 |
| Parties | Mitchell E. ABOOD, Jr., Ramona L. Barnes, Robert H. Bettisworth, Charlie Bussell, John Cowdery, Milo Fritz, Walter R. Furnace, Joe L. Hayes, Vernon L. Hurlbert, John Lindauer, John J. Liska, Terry Martin, John Ringstad, Richard Shultz, Mae Tischer, and Jerry Ward, on behalf of the People of the State of Alaska, Appellants, v. Norman C. GORSUCH, et al., Appellees. |
| Court | Supreme Court of Alaska (US) |
James T. Robinson and David A. Devine, Smith, Robinson & Gruening, Anchorage, for appellants.
James L. Baldwin, Jonathan B. Rubini, Asst. Attys. Gen., Norman C. Gorsuch, Atty. Gen., Juneau, for appellees.
Before BURKE, MATTHEWS, COMPTON and MOORE, JJ.
The Speaker of the House and twenty-two other members of the Alaska House of Representatives brought this action for declaratory relief against certain state officials who, it is claimed, were not properly confirmed by the Legislature. The superior court granted summary judgment for the officials. We affirm.
The underlying facts are as follows. On May 24, 1983, the President of the Senate requested that the House attend a joint session on May 30 for the purpose of confirming officers who had been appointed by the Governor. In response, the Speaker of the House declined, but offered to meet for the same purpose on June 10. On May 30, the Senate President suggested a joint session no later than June 2. On May 31, the Speaker rejected this suggestion, noting that a number of confirmation hearings were scheduled in the House for the period between June 1 and June 4.
On June 1, the House adjourned the regular session of the legislature until January 9, 1984, and on June 2 the Speaker sent a letter to the Governor and the Senate President asserting that all executive appointments were denied confirmation by operation of law. The Senate did not concur in the House adjournment. This meant that the House recess could not last more than three days. 1 On June 3, 1983, the Governor issued a proclamation calling a joint session for 2:00 p.m. on Tuesday, June 7, 1983. The proclamation was immediately published and widely disseminated.
On June 6, the House met and again adjourned. Again, the Senate did not concur in the adjournment. On June 7, the Senate President called a joint session to order pursuant to the Governor's proclamation. In attendance were thirty-seven legislators: all twenty members of the Senate and seventeen of the forty members of the House. The joint session adjourned until June 8 with the expectation that the attendance of at least some of the missing members of the House could by then be compelled.
On the 8th, the Senate President again called the joint session to order. A call of the roll indicated that all Senators and twenty-one members of the House were present. At least two of the Representatives had been escorted from their offices in the state capitol to the session by state troopers acting pursuant to a request for assistance executed by the Senate President.
A roll call vote was begun on the question of confirmation of the principal department heads. Just after the voting was commenced, a call of the House was made, 2 and the session was placed at ease. At 2:14 p.m., the joint session was again called to order. A roll call vote was taken on the question of confirmation of the principal department heads. They were confirmed by thirty-eight affirmative votes. The Legislature next confirmed the Alcoholic Beverage Control Board by unanimous consent. A motion to confirm members of the State Board of Registration for Architects, Engineers and Land Surveyors followed. One Senator objected, observing that the joint session lacked a quorum from the members of the House. It was evident from the roll call vote taken on the confirmation of the principal department heads that there were then only twenty members of the House present.
A debate followed concerning the quorum necessary for the joint session. Senators Josephson and Ray argued that after the Senate and House had been convened in joint session, the Legislature became a unicameral body in which the quorum is a majority of the members of both houses. The Senate President accepted this point of view and ruled that a quorum was present. This ruling was not appealed to the joint session and the Legislature continued to confirm the remaining appointees, except for three appointees to the Board of Fisheries.
In this, the ensuing lawsuit, the plaintiffs contend that: (1) a quorum was not present at the joint session when the confirmation votes were taken; (2) the joint session was invalid because the Speaker of the House was not present; (3) the Governor's act of convening the joint session was an unconstitutional encroachment on the right of the House to investigate and hold hearings regarding the qualifications of appointees; and (4) the actions taken at the joint session were void for lack of notice required by the public meeting law.
The trial court, in a written decision following cross-motions for summary judgment, concluded that none of these claims were justiciable. The court also made alternative rulings on the merits of each of the claims, except that concerning the presence of the Speaker.
We turn first to the question of justiciability. There are certain questions involving coordinate branches of the government, sometimes unhelpfully called political questions, that the judiciary will decline to adjudicate. In Malone v. Meekins, 650 P.2d 351, 357 (Alaska 1982), we discussed the leading federal case on justiciability, Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), stating that the Supreme Court of the United States had identified,
various elements, one or more of which is '[p]rominent on the surface of any case held to involve a political question....'
These elements included: (1) a textually demonstrable commitment of the issue to a coordinate political department; (2) the impossibility of a court's undertaking an independent resolution of the case without expressing lack of respect due coordinate branches of government; and (3) the need for adherence to a political decision already made.
Malone 650 P.2d at 357 (citations omitted).
In Malone we held that the claim that a session of the House of Representatives had been convened in violation of a statute was nonjusticiable. The statute, AS 24.10 020, 3 related "solely to the internal organization of the legislature, a subject which has been committed by our constitution to each house." Id. at 356. We stated:
For the courts to assume responsibility for overseeing the officer selection process of a legislative body would be highly intrusive and, in our opinion, inconsistent with the respect owed the legislature by the judiciary. Of significance too is the need to attribute finality to the action taken by the House. While the June 1981 reorganization did disrupt the legislative processes of the House for a few days, the important point is that the crisis passed, the House reorganized, and has since been engaged in legislative activity, all without judicial intervention. Intervention by a court at this point would be apt once again to disrupt the legislative processes of the House. Nor is it at all clear that judicial intervention during the reorganization would have shortened it or otherwise have been of benefit.
Id. at 357. We also held nonjusticiable a question as to whether the rules of the Legislature had been violated, noting that "we can think of few actions which would be more intrusive into the legislative process than for a court to function as a sort of super parliamentarian to decide the varied and often obscure points of parliamentary law which may be raised in the course of a legislative day." Id. at 359. We explained that there could be exceptions to this "in extraordinary circumstances, as where the rights of persons who are not members of the legislature are involved...." Id. And we made it clear that the nonjusticiability doctrine would not apply to cases involving our "constitutionally mandated duty to ensure compliance with the provisions of the Alaska Constitution, including compliance by the legislature." Id. at 356.
Article III, section 25 states that the head of each principal department of government shall be appointed by the Governor "subject to confirmation by a majority of the members of the legislature in joint session...." Section 26 provides for confirmation of members of boards and commissions in the same language as section 25. 4 What quorum is necessary for confirmation votes is a question of Alaska constitutional law. It is therefore a question to which the nonjusticiability doctrine does not apply.
Article II, section 12 of the Alaska Constitution states in part that "[a] majority of the membership of each house constitutes a quorum to do business...." Article III, section 17 provides that: "[w]henever the governor considers it in the public interest, he may convene the legislature, either house, or the two houses in joint session." The appellants argue that the quorum requirement of article II, section 12 applies to joint sessions. Consequently, no action could be taken at a joint session unless at least eleven senators and twenty-one representatives were present.
The trial court stated, in its alternative holding on the merits of this point:
I conclude that joint sessions of the legislature are intended to organize the legislature into a single house for authorized purposes. Confirmation sessions were made joint for the purpose of removing the check each house of the legislature has on the other. I conclude that the quorum for a joint session convened under article III, sections 25 and 26 of the Alaska Constitution is a majority of the members of the legislature, or 31 legislators from either house of the legislature. To conclude otherwise would frustrate the purpose of joint sessions.
We agree...
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