Abood v. League of Women Voters of Alaska, s. S-1831

• Citation: 743 P.2d 333
• Decision Date: 29 September 1987
• Docket Number: S-1841 and S-1957,Nos. S-1831,s. S-1831
• Parties: Mitchell E. ABOOD, Jr., Don Bennett, John B. Coghill, Edna DeVries, Richard I. Eliason, Bettye Fahrenkamp, Jan Faiks, Frank R. Ferguson, Paul Fischer, Rick Halford, Tim Kelly, Jalmar M. Kerttula, Patrick Rodey, John C. Sackett, Arliss Sturgulewski, Fred F. Zharoff, Jack Gibbons, Peggy Mulligan, Albert P. Adams, Johne Binkley, H.A. Boucher, Bette M. Cato, Jim Duncan, Steven Frank, John G. Fuller, Peter Goll, Max F. Gruenberg, Jr., Ben F. Grussendorf, Adelheid Herrmann, Niilo E. Koponen, Ronald L. Larson, M. Mike Miller, Mike W. Miller, Mike Navarre, John Ringstad, Richard Shultz, John Sund, Robin L. Taylor, David W. Thompson, and Kay Wallis, Appellants and Cross-Appellees, v. LEAGUE OF WOMEN VOTERS OF ALASKA, and Anchorage Daily News, Appellees and Cross-Appellants.
• Court: Supreme Court of Alaska (US)

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743 P.2d 333 Mitchell E. ABOOD, Jr., Don Bennett, John B. Coghill, Edna
DeVries, Richard I. Eliason, Bettye Fahrenkamp, Jan Faiks,
Frank R. Ferguson, Paul Fischer, Rick Halford, Tim Kelly,
Jalmar M. Kerttula, Patrick Rodey, John C. Sackett, Arliss
Sturgulewski, Fred F. Zharoff, Jack Gibbons, Peggy Mulligan,
Albert P. Adams, Johne Binkley, H.A. Boucher, Bette M. Cato,
Jim Duncan, Steven Frank, John G. Fuller, Peter Goll, Max F.
Gruenberg, Jr., Ben F. Grussendorf, Adelheid Herrmann, Niilo
E. Koponen, Ronald L. Larson, M. Mike Miller, Mike W.
Miller, Mike Navarre, John Ringstad, Richard Shultz, John
Sund, Robin L. Taylor, David W. Thompson, and Kay Wallis,
Appellants and Cross-Appellees,
v.
LEAGUE OF WOMEN VOTERS OF ALASKA, and Anchorage Daily News,
Appellees and Cross-Appellants. Nos. S-1831, S-1841 and S-1957. Supreme Court of Alaska. Sept. 29, 1987.

Avrum M. Gross and Susan A. Burke, Gross & Burke, Juneau, for Senate appellants and cross-appellees Mitchell E. Abood, Jr., Don Bennett, John B. Coghill, Edna DeVries, Richard I. Eliason, Bettye Fahrenkamp, Jan Faiks, Frank R. Ferguson, Paul Fischer, Richard Halford, Tim Kelly, Jalmar M. Kerttula, Patrick Rodey, John C. Sackett, Arliss Sturgulewski, Fred F. Zharoff, Jack Gibbons, and Peggy Mulligan.

Richard M. Burnham, Findley & Burnham, Juneau, for House of Representatives, appellants and cross-appellees Albert P. Adams, Johne Binkley, H.A. Boucher, Bette M. Cato, Jim Duncan, Steve Frank, John G. Fuller, Peter Goll, Max F. Gruenberg,

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Jr., Ben F. Grussendorf, Adelheid Herrmann, Niilo E. Koponen, Ronald L. Larson, M. Mike Miller, Mike W. Miller, Mike Navarre, John Ringstad, Richard Shultz, John Sund, Robin L. Taylor, David W. Thompson, and Kay Wallis.

D. John McKay and Laura N. Cromwell, Middleton, Timme & McKay, Anchorage, for appellees and cross-appellants League of Women Voters of Alaska and Anchorage Daily News.

Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

OPINION

MATTHEWS, Justice.

These appeals arise from the superior court's decision that a claim that certain groups of state legislators held closed committee meetings and caucuses in violation of the Open Meetings Act was not justiciable, but that a claim that the closed meetings violated an implied constitutional right of public access to meetings of legislative units was both justiciable and correct. We agree that the claim of violation of the Open Meetings Act by state legislators is nonjusticiable, but contrary to the superior court's decision, we hold that there is no implied right of public access to legislative committee or caucus meetings under the Alaska Constitution. We therefore reverse.

I. FACTS AND PROCEEDINGS

In April 1986, the League of Women Voters of Alaska, the Anchorage Daily News, and the Fairbanks Daily News Miner (collectively referred to hereafter as the League) filed an action seeking a declaratory judgment and injunctive relief against certain members of the Alaska Legislature (the Legislators) and four legislative employees. The League alleged that members of the Senate and House Finance Committees had held meetings "closed to the press and members of the public," and during those meetings had "engaged in collective fact-finding, deliberation, debate and decision-making with respect to the budget for FY 1987." The complaint further alleged that members of the House Finance Committee and the Senate Finance Committee had met jointly in meetings closed to the press and public "to discuss and attempt to obtain agreement upon the amount of funds available for the FY 1987 budget." The complaint also alleged that members of the House Finance Committee and the Senate Finance Committee had met from time to time in "closed caucus meetings" with other members of the ruling majority, and during these meetings had engaged in "substantial collective discussion, deliberation, and decision-making" concerning the FY 1987 budget. The League attached affidavits from several senators and representatives which described these meetings in some detail.

The League charged that these meetings violated the Open Meetings Act (AS 44.62.310), the Uniform Rules of the Legislature (Rule 22), various federal and state constitutional provisions, and common law rights of access to government. The superior court was asked to declare that the closed meetings violated state and federal law, and that any appropriation bill adopted as a result of such meetings would be void unless each house of the legislature conducted "substantial, de novo, independent and public reconsideration of those substantive matters previously discussed in private." The injunctive relief sought by the League was aimed at preventing the legislature from continuing to engage in the type of meetings complained of, and from enacting the state budget for FY 1987 unless and until certain remedial action was taken.

On April 30, the superior court held a hearing on an application by the League for a temporary restraining order, and on May 1 the court issued its first decision in this case. The court concluded that litigation premised upon the alleged closed meetings held in violation of the Open Meetings Act presented a justiciable controversy. The court refused to issue the requested TRO, however, because it found that it could not fashion an order that would effectively control these legislative activities. The court then decided that it was empowered

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to issue a final declaratory judgment solely on the basis of the League's complaint and affidavits filed in support of the motion for the TRO. The court found that a pattern of conduct which was violative of the Open Meetings Act had been established, that action taken contrary to the Act was void, and therefore that any budget decision which was reached at a closed meeting was void.

The Legislators immediately appealed from the superior court's decision and requested emergency relief, claiming that due process had been denied to them because the decision had been rendered before the Legislators had been afforded a fair opportunity to respond on the merits. After an expedited argument, we reversed the judgment issued by the superior court and remanded the case for the purpose of conducting a full hearing on the merits.

Shortly thereafter, the Legislators filed their answers to the complaint, and moved to dismiss the case or alternatively for summary judgment, arguing that the issues in the case were nonjusticiable and that the claims against the Legislators were barred by legislative immunity. The League filed a cross-motion for summary judgment on the justiciability issue.

In October 1986, the superior court entered its second decision in this case, the partial final judgment which is the subject of this appeal. The court reversed its earlier ruling and concluded that the League's claim that the closed meetings violated the Open Meetings Act was not justiciable. The League appeals from this ruling. The court proceeded to hold, however, that the public and press enjoy an implied right of access to the proceedings of the legislature under article I, section 5 of the Alaska Constitution, which guarantees freedom of speech and of the press. The court further held that a claim that the Legislators violated this constitutional right was justiciable. The court finally held that legislative immunity was not a bar to the suit. The Legislators appeal from these rulings. The State of Alaska, intervenor on behalf of the Legislators below, and the Fairbanks Daily News Miner, are not participants in this appeal.

II. STANDARD OF REVIEW

All of the issues in this appeal raise questions of Alaska constitutional and statutory law, subject to de novo review. The facts of this case are not in dispute; the only facts in the record are the seven affidavits submitted by the League which attest to a pattern of meetings by legislative committee and caucus majority members which were closed to the public, the press, and sometimes minority members of the legislature. The Legislators do not deny that these meetings occurred, or that they conducted the business and made the decisions that the League alleges.

III. VIOLATIONS OF THE OPEN MEETINGS ACT ARE NOT JUSTICIABLE

The League argues that the Legislators violated Alaska's Open Meetings Act ¹ and

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the legislature's Uniform Rule 22 ² through the closed meetings attested to in the League's affidavits. The superior court held that these claims were nonjusticiable because "[j]usticiability in this case depends on a determination that there is a constitutional right alleged to have been infringed." (Emphasis by the court.) As a general proposition, we agree.

In Malone v. Meekins, we recognized that

the established principle that courts should not attempt to adjudicate "political questions" ... stems primarily from the separation of powers doctrine.... "[I]t is the relationship between the judiciary and the coordinate branches of the ... Government ... which gives rise to the 'political question.' "

650 P.2d 351, 356 (Alaska 1982) (quoting Baker v. Carr, 369 U.S. 186, 210, 82 S.Ct. 691, 706, 7 L.Ed.2d 663, 682 (1962)). See also Abood v. Gorsuch, 703 P.2d 1158, 1160 (Alaska 1985) ("There are certain questions involving coordinate branches of the government, sometimes unhelpfully called political questions, that the judiciary will decline to adjudicate.").

Our statement in Abood suggests the difficulty inherent in precisely defining the contours of the doctrine of justiciability. It is not possible to draw the exact boundary separating justiciable and nonjusticiable questions.

Justiciability is of course not a legal concept with a fixed content or susceptible of scientific verification. Its utilization is the resultant of many subtle pressures, including the appropriateness of the issues for decision ... and the actual hardship to the litigants of denying them the relief sought.

Poe v. Ullman, ...