Hayes v. Charney, s. 7859
| Decision Date | 04 January 1985 |
| Docket Number | Nos. 7859,7860,s. 7859 |
| Parties | Joe HAYES, Ramona Barnes, Mitch Abood, Al Adams, Charles Bussell and Terry Martin, Appellants, v. M.R. CHARNEY, Executive Director of the Legislative Council, Hugh Malone, Chairman of the Legislative Council, Bill Mullin, Director of Finance of the State of Alaska, Department of Administration, Lisa Rudd, Commissioner of the State of Alaska, Department of Administration, and Roark-Harmon Associates, Appellees. Bill MULLIN, Lisa Rudd, Cross-Appellants, v. Joe HAYES, Ramona Barnes, Mitch Abood, Al Adams, Charles Bussell and Terry Martin, Cross-Appellees. |
| Court | Alaska Supreme Court |
James T. Robinson, David A. Devine, Smith, Robinson & Gruening, Anchorage, for appellants.
James B. Bradley, Pamela Finley, Robertson, Monagle, Eastaugh & Bradley, Juneau, for appellee Charney.
Jonathan B. Rubini, Asst. Atty. Gen., Juneau, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellees/cross-appellants Rudd and Mullin.
Before BURKE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and MOORE, JJ.
This dispute arose out of the award of a contract by the Legislative Council for television coverage of the activities of the Thirteenth Alaska Legislature. 1 Television coverage of the first ninety days of past sessions had been funded from the budgets of the Department of Education or the Alaska Educational Broadcasting Commission. Coverage that continued past the first ninety days of a session had been funded from supplemental appropriations to the Legislative Affairs Agency, through which the Legislative Council acts. In 1983, for the first time in five years, there was no specific appropriation for television coverage.
At a Legislative Council meeting on November 16, 1982, Senator Kelly noted that no plans for television coverage had been made, whereupon the Council decided to solicit proposals. On December 8, the Council referred the proposals it had received to a committee for review; at a meeting held on January 4, 1983, thirteen days before the full legislature was scheduled to convene, it decided to award the contract for the filming of the 1983 legislative session to Roark-Harmon Associates.
On January 12, 1983, Representatives Joe Hayes, Ramona Barnes, Mitch Abood, Al Adams, Charles Bussell and Terry Martin (hereinafter collectively referred to as "the Legislators") 2 filed a complaint in the superior court against defendants Charney, Malone, Mullin, and Rudd (hereinafter collectively referred to as "the State"), 3 and Roark-Harmon Associates, requesting the court to enjoin performance of the contract with Roark-Harmon. In support of their complaint, the Legislators alleged, among other things, that all actions taken at the Council's January 4, 1983, meeting were void, as the Council had not complied with the "reasonable notice" requirements of Alaska's Open Meetings Act. 4 They also argued that the Council did not possess the constitutional or statutory authority to award a contract for television coverage. More particularly, the Legislators alleged that the legislature had intentionally not appropriated any funds for television coverage, and that to provide for such coverage, the Council used monies appropriated for other purposes. In doing so, the Legislators claimed, the Council usurped legislative authority and power in violation of article II, section 1, of the Alaska Constitution. 5 The State argued that the legislature had never prohibited funding for private television coverage of the session, and that a mere omission of a specific allocation was not an indicator of legislative intent.
The superior court denied the Legislator's request for injunctive relief and dismissed the case, finding that it involved no justiciable questions 6 and that, even if the questions presented were justiciable, the equities of the case did not favor granting the relief requested.
The equitable considerations which the superior court found compelling included the Legislators' three month delay in filing suit, the existence of alternative non-judicial remedies, 7 the public interest in avoiding "contracting by injunction," and deference to a coordinate branch of government.
The two issues appellants seek to present to this court are: 1) whether the Legislative Council violated the Alaska Open Meetings Act by not giving reasonable notice and 2) whether the Legislative Council unconstitutionally usurped the power of the legislature to appropriate public funds. We do not reach the merits of these claims, however, because we refrain from deciding questions "where the facts have rendered the legal issues moot." Doe v. State, 487 P.2d 47, 53 (Alaska 1971). In this case, the 1983 legislative session is over, and the contract in question has been fully performed by both parties. A judgment by this court would be advisory only.
The Legislators would have us invoke the public interest exception to the mootness doctrine: "[W]here the matter is one of grave public concern and is recurrent but is capable of evading review, we have undertaken review even though the question may be technically moot." Id.
The public interest exception involves the consideration of three main factors: 1) whether the disputed issues are capable of repetition, 2) whether the mootness doctrine, if applied, may repeatedly circumvent review of the issues and, 3) whether the issues presented are so important to the public interest as to justify overriding the mootness doctrine. E.g., Etheredge v. Bradley, 502 P.2d 146, 153 (Alaska 1972); Johansen v. State, 491 P.2d 759, 762 (Alaska 1971). These factors are not strictly determinative in and of themselves. Each is merely one aspect of the question of whether the public interest dictates review by this court. Ultimately, the determination whether to review a moot question is left to the discretion of the court. Witt v. Watkins, 579 P.2d 1065, 1071 n. 19 (Alaska 1978); Etheredge v. Bradley, 502 P.2d at 153; R.L.R. v. State, 487 P.2d 27, 45 (Alaska 1971). In this case, we hold that neither the "reasonable notice" issue nor the "usurption of power" issue present matters of such public import as to justify invoking an exception to the mootness doctrine.
First, we examine the public importance of the issue concerning the Council's alleged violation of the notice provisions of the Open Meetings Act.
The Legislators do not allege that the Council meeting of January 4, 1984, was actually closed to the public. However, they do contend that the Council's failure to follow a standardized notification procedure violated the Open Meetings Act and deprived the public of its right to participate in law making, 8 arguing that the notice given was not "reasonable", effectively closing the meeting to the public. 9 Thus, they urge this court to impose a definition of reasonableness, in terms of timeliness and subject matter, in order to avoid future "closed" council meetings. 10
Judicial review on this issue would do little to further the public interest. Article II, section 12 of the Alaska Constitution gives the legislature the power and duty to establish its own rules, 11 and the Legislative Council is subject to the sole direction and control of the legislature. If the legislature wishes to change the notice procedures for Legislative Council meetings, it need only impose the notice requirements it deems fit.
Second, the Legislators contend that the Legislative Council unconstitutionally usurped the power of the legislature to appropriate public funds.
The Legislators argue that there is a legitimate public interest in determining the constitutionality of the Council's action under article IX, section 13 of the Alaska Constitution, which states that "[n]o money shall be withdrawn from the [state] treasury except in accordance with appropriations made by law." The question is, therefore, whether this dispute between the legislature and the Legislative Council is of such significant public interest as to warrant our review despite its mootness. We conclude that it is not, because the legislature has the constitutional power to prohibit such actions. 12
The appeal is dismissed as moot. SO ORDERED.
I dissent from the court's refusal to reach the merits of appellant's claim that the Legislative Council violated the Open Meetings Act by failing to provide reasonable notice for a January 1983 meeting at which the council awarded a contract to film the 1983 legislative session. In my view the public interest exception to the mootness doctrine is applicable here for the following reasons.
Accepting the court's position that the public interest exception involves three main factors I first address the question of whether the issue is so important to the public interest as to justify overriding the mootness doctrine. In Alaska Community Colleges' Federation of Teachers, Local 2404 v. University of Alaska, 677 P.2d 886, 891 (Alaska 1984) we noted that AS 44.62.312 made it clear that section 312 of the OMA exists primarily to advance the interests of the people of Alaska. There we further observed that when the OMA is breached it is the which sustains injury. 1 Given the foregoing purposes of Alaska's Open Meeting Act, I am of the view that invocation of a mootness bar is particularly inapplicable in this case. Public disclosure of the nature and circumstances of an OMA violation is an important component of the remedy available under the Act. 2 In part, the philosophy underlying Alaska's OMA is that publicity regarding malfunctioning of government will have a salutary effect upon the behavior of government officials, making them more responsive to public concerns. It follows that the public has an interest in knowing whether the council failed...
To continue reading
Request your trial
-
In re Guardianship of Tschumy
...of the exceptions vary from state to state. See City of Birmingham v. Long, 339 So.2d 1021, 1023 (Ala.1976) ; Hayes v. Charney, 693 P.2d 831, 834 (Alaska 1985) ; Wise v. First Nat'l Bank, 49 Ariz. 146, 65 P.2d 1154, 1156 (1937) ; Campbell v. State, 311 Ark. 641, 846 S.W.2d 639, 640 (1993) ;......