Des Moines Register & Tribune Co. v. Dwyer

alimony protect promote the best ately making extension of the interests parties filing [to date of children of the dissolution from the award effective by setting portion action] aside for petition modification. separate parties in a fund property of James contends the trial court conservatorship support, for the mainte- require pay for to him to lacked nance, education, welfare of expenses. half of Yvonne’s uncovered medical the minor children. disagree, noting that Iowa section Code We Hall, Mason v. 482 N.W.2d See 598.21(8)(e) provides for when modifications (Iowa 1992) provision (applying this in estab- “changes expenses in the there medical lishing support). a trust for child This stat- party.” that a trial court has It follows expressly grant ute however does power to medical and we support, order authority regard alimony pay- to same approve pay that he toward order ments. have to assume the exclusion of We Luebbert, Marriage re Yvonne’s. See In authority alimony payments was deliber (Iowa (former App.1986) hus 400 N.W.2d 80 ate. Inclusio unius est exclnsio alterius required pay band former wife’s health (the oth mention one is the exclusion of benefits). insurance James this re fears ers). Wilson, In re Estate N.W.2d quirement will Yvonne accumulate enable 1972) (Iowa (noting field in the of statuto him, solely spite bills astronomical medical ry expressed construction intent is we do a fear not share. fear overlooks omission); by inclusion as well as Barlow v. pay fact that must half of Yvonne Co., Roofing Midwest 249 Iowa surely expenses. uninsured will medical This (applying this well- enough provide to re incentive Yvonne construction). known rule of Neither do we incurring unnecessary frain from medical ex impose authority law a trust find common penses. alimony payments. Because the court appeal part that parties Both impose a on the lacked trust of the modification order directed James alimony payments reverse on cross- $10,000 $28,200 in pay toward Yvonne’s appeal. attorney’s accumulated fees. court rea APPEAL; AFFIRMED ON THE RE- those soned Yvonne will available ON THE CROSS-APPEAL. VERSED alimony pay funds awarded as retroactive remaining claims the balance. Yvonne inadequate while claims award James

the award was excessive. attorney’s

Ordinarily an award trial

fees rests the sound discretion of the appeal court will not be disturbed on AND TRIB- DES MOINES REGISTER absence of abuse of Fran discretion. and Iowa Freedom of UNE COMPANY cis, 442 67. think the trial N.W.2d at We Council, Appellants, Information correctly controlling fac assessed (an attorney’s depends tor fees award

upon ability respective parties Jerry F. John DWYER pay, depending upon the financial circum Gamble, Appellees. each). earnings re Mar stances 94-901. No. (Iowa Williams, 160, 167 riage 303 N.W.2d 1981). We find no abuse. Supreme Court of Iowa. finally turn to Yvonne’s IV. We 17, 1996. Jan.

challenge provision the modification alimony subjecting payments to a decree 598.21(1)

trust. allows Code court to

493 Services, an

General executive branch telephone all agency, provides service to agencies This service state senate. data, processing pro- and storage includes telephone monthly accounts and duction of invoices, billing and servicing and of lines equipment. Outgoing long distance calls general equipment, pass through services incoming long pass distance calls and long through general carrier ser- distance body. then equipment vices and to the state incoming long telephone calls For distance senate, general sends services billed the K.J. A. Giudicessi and Walker Michael monthly to the senate and the senate bills Moines, Benson, appel- for Faegre & Des department through money the transfers lants. Department Finance. the of Revenue and Appel R. David S. Steward of Brent and money, receiving After the General Services Dickinson, P.C., Mackaman, Tyler Hagen, & pays long distance carrier. then the Moines, Dwyer. appellee for Des provides types of General two Services Miller, General, Attorney Thomas J. Julie type monthly for the senate. The first bills General, Pottorff, Attorney Deputy and provides “recap” as a and is referred to Attorney Dugdale, Gener- Grant R. Assistant summary which the to- information indicates al, appellee for Gamble. bill, re- type The other tal amount due. detail,” the a “call indicates

ferred as telephones, indi- charges specific senate for to, assigned telephone who shows cates the SNELL, Justice. telephone number called or the number ease, we are faced with placed, from which the call was indicates policy Iowa on release Senate’s whether call, and also indicates date time of and long phone records falls certain distance length re- of the call. General Services constitutionally-granted within its on billing information tains records proceedings. its own rules of determine for types two of bills three months these Register sought access to de- Moines Des computer years for on micro- and then three kept records the senate and tailed to access fiche ease the senate needs and Department General Services Jerry currently the Gamble is information. declaratory judgment when the sen- sought a services administrator of administrative refused release ate and services Department of General Ser- division of the court at issue. The district ruled records vices, billing responsibilities include and his textually policy senate’s involved that the agencies for communications services state constitutional commitment demonstrable accounting depart- overseeing for power to the senate and therefore matter ment. question. nonjusticiable political constituted granted ground appel- On this trial Witosky, report- Tom On March summary judgment. motion for We lees’ Register, a writ- er for Des Moines sent affirm. all request Dwyer production for ten summaries, bills, records, or other documents Background I. Factual Procedural outgo- relating any incoming or use of Senate, ing telephone paid line secretary F. Iowa John “800-Watts” As during Assembly Iowa or General Senate Dwyer oversees all senate administrative years through 1993. Wito- matters, including recordkeeping. the calendar senate chapter sky cited Iowa’s supervision of the Iowa Code Dwyer functions under the law, request. his records leadership senate. Register request: Dwyer copies “recap” sent the would have unfettered billing summary reports all which telephone which access to did show detail, long charges call but the total distance itemized call detail informa- showed however, Dwyer, Dwyer telephone. each in- tion would remain confidential. circu- senate policy senate not have “call lated written to all dicated letter the did members originat- September detail which indicated the senate on 1993. On October records” location, number, date, 20, 1993, ing president majority time of calls senate an incoming “800-Watts line” to the leader circulated a memorandum which made on dis- Further, Dwyer policy. even if cussed the details Senate. stated of written records, did the senate retain was his On November position production of such documents Dwyer against Council filed suit and Gamble privacy rights would violate and constitution- County the Iowa District Court for Polk guarantees speech al of freedom of and arguing pursuant it was their chilling a would have detrimental effect on chapter 22 Code to access call senate detail rights willingness petition citizens’ and required Dwyer information and the law and their elected officials. Gamble, records, legal custodians of the Witosky Dwyer subsequently upon proper request. sent a letter release them essentially repeated Register sought declaratory of clarification which and Council request request by judgment long initial but broadened the call distance detail deleting public to an Dwyer reference “800-Watts” records were both 1993, telephone Dwyer line. On June Gamble violated records law ultimately Witosky refusing produce Dwyer sent another letter which the records. ulti- pages mately responded 324 regarding by filing included of information a motion for sum- charges equipment, outgoing long mary judgment dis- in which he asserted the tance, charges for and miscellaneous the re- court could not of force release the rec- letter, quested period. Dwyer time In policy ords because the senate’s on release of he would not “call sphere indicated release detail” the records fell within the long III, about prerogative information distance calls because senate’s under article production he 9 believed violate the of the Iowa Constitution to determine its rights parties joined constitutional proceedings. rules of Gamble later improperly Dwyer’s conversations and would differen- motion. tiate between those individuals who commu- Register and Council resisted the mo- long nicated the senate via distance summary judgment essentially tion for on

telephone calls and those who were able to grounds fact issues material exist- communicate with senate members other existed, ed and even if no such issues means. provisions chapter court could enforce the Witosky sent 22 request against

Soon after his initial senate numerous reasons request Dwyer, production he sent a including policy that the did not constitute a long-distance telephone protected call proceeding. the same docu- rule of The court sub- Gamble, Jerry granted sequently ments to the director of ad- the defendants’ motion for summary judgment ministrative services at ground services. on the that the apparently completely policy Gamble denied the re- on senate’s release the records con- quest ground legal proceeding on he was not the rule stituted a and the court telephone constitutionally custodian senate records. could not enforce senate’s Therefore, proceedings. rules of the court September the senate Rules reasoned, nonjusticiable the issue involved a Dwyer and Administration Committee asked political question. policy regarding to draft access to telephone September appeal, senate records. On On con- Council adopted the committee a revised tend trial granting ver- court erred in Dwyer’s sion of recommendation. summary judgment defendants’ motion for (1) adopted policy precise policy following described the for the reasons: im- Dwyer response Witosky’s properly applied had followed in judiciary “political question,” involves powers because it separation of doctrines may adjudicate too interpreted proceedings” attempt “rules of broad- intervene (2) summary granting ly; Voters, the court erred in League Women matter. the ground in favor judgment of Gamble Gorsuch, 336; P.2d at Abood v. 703 P.2d nonjusticiable the matter was a (Alaska 1985); Malone v. Mee an executive because Gamble is branch (Alaska kins, 1982). This 650 P.2d the lawful employee who serves as custodian principle primarily separa stems from the (3) documents; genuine branch of executive powers requires doctrine tion which regarding of material fact exist wheth- issues regions respective leave roles and intact proceeding rule of policy issue is a er independence of the coordinate branches applied whether such a rule can be retro- Carr, government. Baker granting actively; and court erred 691, 706, 7 L.Ed.2d plain- strike the defendants’ motion to (1962); League Women jury demand the essential na- tiffs’ because Malone, 336; P.2d at 650 P.2d at 357. legal. case ture of the Blackstone, See also 1 William Commentar (13 England ed. ies on the Laws Scope II. of Review 1800) (“for hath not been aforetime used grant In our of a trial court review justices any should deter wise summary judgment, for con a motion of privileges parliament mine the of the ... entire record in the sider the evidence knowledge ... and of determination light most favorable to the non-movant and privilege belongs parliament to the ... any any as to mate determine whether issue in justices”). not to a matter Whether Irons, rial fact exists. Ciha v. 509 N.W.2d political question requires volves a a case- (Iowa 1993); 492, Bend Mut. Ins. 493 West by-case inquiry and constitutes a “delicate Works, Inc., Iron 503 v. Iowa N.W.2d Co. interpretation.” exercise in constitutional (Iowa 1993). 596, Summary judgment 598 Baker, 210-11, 706, 7 369 at 82 S.Ct. at U.S. appropriate if no material fact issue as 681-82; League L.Ed.2d see at Women of party moving and the is entitled to exists Voters, 743 P.2d at 336. Ciha, judgment as a matter of law. 509 493; Ins., Mut. at Bend 503 N.W.2d West following factors One or more of at 598. An of fact is “material” N.W.2d political demonstrate the existence of a dispute might facts which only if the involves (1) textually question: a demonstrable con suit, given affect outcome a co stitutional commitment of the issue to applicable governing law. Junkins v. Bran (2) political department; a lack of ordinate (Iowa 1988). stad, 130, 421 N.W.2d 132 We judicially manageable stan discoverable additionally review the district court’s deci (3) issue; impos resolving for dards correctly ap to ensure that the court sion sibility policy deciding without an initial Ciha, 4; R.App.P. plied the law. 509 Iowa nonjudi clearly of a kind determination 493; State, 475 at Keller v. N.W.2d N.W.2d (4) discretion; of a impossibility cial (Iowa Junkins, 174, 1991); 421 179 N.W.2d undertaking independent court’s resolution de at 132. We review constitutional issues respect a lack of due expressing without Scott, 347, v. 518 N.W.2d 349 novo. State (5) government; (Iowa 1994); 487, branches of coordinate Riley, 501 N.W.2d State v. (Iowa 1993); Hilleshiem, unquestioning unusual adherence need v. 291 488 State made; (Iowa 1980); already 314, political 316 State v. As decision N.W.2d chenbrenner, (Iowa 618, 619 multifar potentiality 289 of embarrassment from N.W.2d Post, 195, 1980); depart pronouncements by v. 199 State 286 N.W.2d ious various (Iowa 1979); League Baker, see v. at question. Abood Women ments on one (Alaska 1987). Voters, 333, 686; 217, 710, 743 P.2d 335 see 82 at 7 L.Ed.2d at S.Ct. Correspon v. Consumers Union Periodical Justiciability

III. (D.C.Cir.1975), Ass’n, 1341, dents’ 515 F.2d 1347 denied, 1051, 96 S.Ct. 423 firmly-established principle rt. U.S. It is a ce 780, (1976); League 46 640 Wom challenge to a action L.Ed.2d that when 496 Voters, Gorsuch, 337; procedural

en 743 P.2d at 703 in accordance with its own rules 1160; Malone, long questions at 650 at P.2d P.2d 357. so constitutional are not Voters, Supreme explained implicated. League Court has that whether Women 743 336; Willis, 1018, question at v. applies doctrine re P.2d 459 So.2d Moffitt (Fla.1984). Furthermore, quires legisla- an examination the nature 1022 McCormack, underlying complete claim. v. control Powell ture and discretion 1964, observe, waive, enforce, 395 23 it shall U.S. whether sus- pend, disregard proce- its own L.Ed.2d rules dure, and violations such rules are not At issue this case is the factor first grounds voiding legislation. Carl textually namely, listed above: whether a Grimes, v. Iowa ton 23 N.W.2d demonstrable constitutional commitment to (1946); League also see Women nonjusticiable the senate renders the senate’s 338; Moffitt, 743 P.2d at 459 So.2d at keep specific decision detailed rec- Lee, 1021; 571; at rel. So. State ex Todd ords confidential. The text of the Con- Iowa Essling, 268 Minn. 128 N.W.2d stitution commits to the senate the (1964); Conta, 335; cf. of proceedings. determine its own rules City Dubuque, Smith 376 N.W.2d Constitution, III, article section 9 states (Iowa 1985) (city may abolish, council as follows: suspend, modify, parliamentary or waive upon adjourn- Each house shall sit its own not ordinarily rules courts will invalidate ments, keep journal proceedings, of its disregard parlia council action taken same; publish determine its rules rule). mentary proceedings, punish members for disor- involving here is one behavior, derly the consent of preservation independence judi- two-thirds, member, expel a a sec- but not ciary construing interpreting and statutes offense; ond time for the same shall and suggested by Council but and powers necessary have all other for a recognizing respecting preroga- of and of assembly branch of a free of tives the Iowa Senate as committed to it independent and state. by the Iowa it Constitution. To view as a added.) (Emphasis protecting judicial of indepen- matter our is within power judiciary It legislative dence from inappropri- incursions review senate’s rules for constitution ately legal posture inverts the of the case. ality they to ensure do and not violate indi study This is because a of scope chap- rights. vidual fundamental United States v. 22, Statute, not, Open ter Records does Smith, 6, 478, 33, 475, 286 U.S. 52 S.Ct. 76 nay precede our authority duty cannot and 954, (1932); Madison, Marbury L.Ed. 958 v. rights exclusively first determine what (1 Cranch) 137, (1803); 5 2 U.S. L.Ed. 60 given legislature by to the our Constitution. Comm’n, Corp. v. Exxon Federal Trade 589 otherwise, always preempt Were could 582, (D.C.Cir.1978), denied, F.2d 590 cert. a consideration of constitutional 943, 2160, 99 60 1044 L.Ed.2d involving legislature’s exclusive domain (1979); Voters, League Women P.2d at 743 interpreted apply where statute could be 336-38; Stores, State ex rel. X-Cel Inc. v. legislature to the itself. We believe Lee, 685, 568, (1936); 122 Fla. 166 So. 571 magnitude embrace imbalance this be- Hale, Dye 332, v. ex rel. 507 State So.2d 345 judicial legislative tween the and branches (Miss.1987); Tucker, 493, Sweeney v. 473 Pa. principle would be inconsistent 698, (1977); Lynch 375 A.2d 709 State ex rel. respect co-equal due to branches would Conta, 313, v. 71 Wis.2d 239 N.W.2d 335 independence undermine the founded of all government. three branches of state Parsons, entirely It prerogative In v. 90 Iowa 57 N.W. Cliff however, make, (1894), legislature, interpret, 599 our court assessed the conflict rules, procedural and enforce its own alleged and the between statute to limit the sen- judiciary compel cannot to act power ate’s to choose its own officers

497 committees, III, various authority article 7 include itself and its under senate’s either could nevertheless thereafter We said house of the Iowa Constitution. any by and without con- at time rule power control the Neither house currence house close of the other its ses- officers, fixing nor in choosing its other sions, any meetings or of them. committee office, any general nor has their terms of Assembly No mere statute one General right assembly power to control abridge can any subsequent general conferred either house people upon its each house “determine assembly respect. in this proceedings.” rules of 672; at at 601. Id. 57 N.W. 6, 1973) (February Op.Att’y Gen. Parsons, Relying v. Iowa at- on Cliff added). (emphasis League See also Wom torney general opinion emphasized in a 1969 (whether legisla en 743 P.2d language granting the force of constitutional conducted in tive business should be authority. attorney general stated question within procedural session was a house to own of each choose its power of each sole constitutional house from the officers is derived Constitution notwithstanding open meetings determine § the Code whereas 2.6 of rises Justices, statute); Opinion Me. dignity only statutory a mere enact- (the (1961) legislature’s 170 A.2d ment. jurisdiction on the continues to rest may vested in it the constitution not light language supreme any compli depend be made to technical Parsons, supra, court in v. it is our Cliff statute); comply with such ance failure to opinion that either house both houses Stitt, 114 ex rel. State LaFollette Wis.2d rule, rule, resolution, provide by joint could (legislature’s joint or statute the terms resolution prescrib adherence to the rules or statutes carry officers over from first should entirely ing procedure is a matter within But session to the second. even if discretion, subject control III, done, § 7 permit were Article judicial legislative proce review unless any either time to house at terminate constitution); Cog dure is mandated replace term him with officer gin Davey, 233 Ga. S.E.2d another, any general assembly, nor could (1975) (state meetings open law 710 does thereof, a distinguished as session apply legislature). subsequent general assembly bind a in in the case at bar The determinative issue respects. these policy on of is whether senate’s release (March 1969) (em- 24, Op.Att’y 1970 66 Gen. phone constitutes a detailed records senate added). phasis Register proceeding. and Coun- rule of 1973, attorney general specifi- In the Iowa grant proce- of argue cil constitutional cally resolving of a addressed authority to the rule-making senate dural meetings law, open then conflict between the does not the actions individual embrace 22, III, 68A, chapter chapter now article only of the senate as a senators but actions 9 Constitution. He con- of the Iowa “body,” actions of individual sen- and because meetings appli- cluded law was not here, the matter contro- ators are cable to or committee activities of sessions justiciable. Dwyer argues a versy is assembly. if Even houses proceed- “rules of interpretation of broader were, attorney general stated it essentially procedural ings” and contends however, is important, More the constitu- carried any actions out encompass rules power tional of each house the General functions the constitutional accordance with III, 9,§ Assembly Article to deter- under privileged as com- of the senate. Inasmuch proceedings. mine rules of its own integral is munication with constituents lawmaking process, part of senate’s policy regarding Dwyer argues, Legislature In if the the senate’s opinion our even constitutes a confidentiality Chapter specifically were 28A to to amend 498 any business, proceeding perfor-

rule of and senate adherence to action of or in the beyond judicial is any duty upon such a rule intervention. by mance of it conferred Constitution. an action Whether constitutes senatorial proceeding clearly requires case-by-case 475, 480, Hagemeister, State v. 161 Neb. 73 analysis, and we do not believe would be (1955) 625, (quoting 629 v. Crawford necessary or even feasible establish a Gilchrist, 963, 41, (1912)); 64 Fla. 59 So. 968 “bright line” definition senatorial of a rule of Justices, 205, Opinion see also 252 Ala. proceeding Register as the and Council re- 623, Moffitt, (1949); 40 So.2d 459 quest. So.2d at 1021. Justiciability legal is of course not a con- grant [T]he words which the cept susceptible fixed content adopt procedure Senate rules of is scientific verification. utilization Its is the compre- couched about as broad many pressures, resultant of subtle includ- contains, English language hensive as ing appropriateness of the issues for this court without the to in- ... hardships decision and the actual graft any limitation thereon. litigants denying them the relief sought. West, Witherspoon v. State ex rel. 138 Miss. Voters, League Women 743 P.2d at 336 310, 134, (1925); Dye, 103 So. see also Ullman, 497, (quoting Poe v. 508- 345; Hagemeister, 475, 507 So.2d at 161 Neb. 81 S.Ct. 6 L.Ed.2d 999 73 N.W.2d at 628-29. (1961)). urge adopt and Council us to issues, faced with When similar courts by the test followed the California Court of legislative proceed described rules of Appeals in Fair Watson Politi California (1) ings govern as follows: “rules which Commission, cal Cal.App.3d Practices workings legislature,” internal Gor (1990), Cal.Rptr. as a such, 1164; League P.2d at Women “bright may line” which we measure sena (2) 337; 743 P.2d at statutes which Watson, torial actions. distin “solely organization relate to the internal guished engaged “activities individual Malone, (3) legislature,” 356; 650 P.2d at legislators” from “activities which the apply govern rules which to a “branch Legislature a whole conducts its busi- ment itself’ rather than “members of ness,” and held do not fall former Conta, body,” 337; [that] 239 N.W.2d at “ sphere within proceedings” “rules of govern “internal rules” which ‘acts that oc legislature. agree Id. We do not regular cur in course provides “bright this formulation line” test Union, process,’” Consumers 515 F.2d at govern even a useful test. which Rules Brewster, (quoting United States actions, voting, senatorial such as which U.S. 33 L.Ed.2d clearly fall within the realm of 507, (5) (1972)); 525 and “internal operating proceedings beyond judicial the of reach in-

procedures,” Sweeney, 375 A.2d at 709. easily tervention could be characterized as generally interpreted Courts have legisla- either actions of individual senators or ac- broadly: proceedings tive rules of body believe, tions of as a the whole. We The provision [constitutional] that each instead, formulation, the delineated Crawford House “shall the determine rules of its above, provides guidance. more useful proceedings” does not restrict the ... to the mere formulation of standing The Iowa Constitution vests the “ rules, the proceedings body or of assembly pass the in the ‘authority with to rules matters; ordinary legislative government but in regulation of law for the and of ” restraints, of people absence constitutional ... property.’ Schneberger or v. Board 399, 404, extends to the Welfare, determina- Social 228 Iowa 291 of tion propriety Barrett, effect any and N.W. (quoting 861 Reif v. by body action ... proceeds (1933), taken as it 355 Ill. N.E. 188 900 over any Mahin, power, grounds, exercise ruled Thorpe trans- on other 43 (1969)). a part as of their Public able to General Services 250 N.E.2d Ill.2d would work and be reviewable integral is an administrative with senators communication by the state auditor. its consti part performance of of the senate’s granted authority to laws. tutionally enact call at here were detail records Jefferson noted As Thomas however, by Dwyer. provided, He be- not give people will of of such to lieved that distribution order [I]n have, rights policy, privacy and the violate ought influence violate senate it guarantees constitutional of freedom may enable them to ex- and information which chilling have a effect on speech, and would usefully, part it of the com- it ercise land, rights willingness to contact law, our citizens’ adopted the law this as mon discharge their elected officials. Similar issues representatives, in the their that by courts other states. functions, considered be from the been should free of their case, sought Jersey newspaper a In a New cognizance or coercion the coordinate Executive; by county detail rec branches, release officials call Judiciary and Jersey those here. North ords like at issue with their con- their communications that Freeholders, also, Newspaper Co. 245 N.J.Su duty right, as of be stituents should of full, per. (App.Div.1990), free, by so A.2d any: and unawed that remanded, grounds on necessary other intercourse been has modified (1992). ..., The court correspondence 127 N.J. A.2d be- deemed stating required, was not held that disclosure representative and constituent is tween the pass expense through free of a know privileged public certainly has post, that the public charges paid by channel of telephone the total have been total proceedings county each month as well as the at suspended paid county to be arrested and tele- charges known for each go Representatives assigned employee. until could times to an officer or not, view, to their and confer know home several counties it is in our entitled to But was, their recipient with constituents. of each toll call who made, long the when the call was and how (Ford Thomas Jefferson Works conversation lasted. 1904). Robert J. Reinstein & ed. See also ... intrusion We are also convinced Privilege Harvey Silvergate, Legislative A. & toll privacy interest one has in his into Powers, Separation 86 Harv.L.Rev. billing pose significant dan- records could liberty. gers perform constitutionally- In order laws, granted power duty to enact public do it advances the We not think has a means which provided Iowa Senate spoken who person interest for a thoughts can communicate their individuals [county telephone to be on official] expense. with senators Part susceptible inquiries, press procedure of as whole is the senate otherwise, and sub- regarding nature legislation communicate matters We do stance the conversation. at the public. phone conversations telephone recipient of a call from think controversy constitute before us heart subject [county should be official] proceeds taken the senate actions harass- indiscriminate embarrassment power, the transaction the exercise its think of little else which ment. We can business, performance in the of its chilling on the have a more effect would by the upon conferred it constitution. duties open communication on which free and accounting the ex- Recognizing that an rely. be to officials should able elected telephone penses incurred from use of senate omitted). (citations A.2d at Id. 584 278-79 appropriate, the senate authorized lines Inc., Enterprises, Taylor Dwyer provide to information that showed Worrell (1991), news long charges sen- 409 S.E.2d total for each Va. distance sought tele given paper to the release detailed telephone. information was ate This Virginia governor’s phone records from the information was avail- appellants. same Virginia public holding office under records stat- Consumers Union’s claims were refused, Virginia nonjusticiable. Supreme ute. The Court The court said legislature explaining the intended statu- opinion are of the that this case is not [W]e tory exemption mandatory to exclude from justiciable because it com- involves matters which, required if disclosure that information Legisla- to mitted the Constitution released, unconstitutionally be would in- Department tive and as to which acts ability governor terfere with the circumstances, appellants, under the Rejecting execute duties of his office. legislative did not breach the limits im- argument newspaper’s that the nature of munity. innocuous, the information was the court Id. at 1346. stated contrary, On which data show the time Supreme The Florida Court this addressed originating terminating location of brought by issue in suit the Miami Herald concerning a call the activity is information Publishing Company and twelve other news- data, of the Governor’s office. The stand- against paper publishers Speaker alone, ing provide could a basis for Florida House and President of Sen- speculation. provide Willis, The data also an in- ate. So.2d Moffitt (Fla.1984). investigation formation base for further They complained secret closed subject recipients which would calls meetings committee com- violated rules that inquiries regarding calls their meetings open public.” mittee “shall be to the content. plaintiffs Id. at 1021. The asserted meetings closed violated importantly, compelled

More ... the House and Sen- release rules, meetings ate chilling this information could statute and provisions of effect the U.S. and Florida constitu- on Governor’s use of the tele- trial plaintiffs tions. The court held that the conducting the Commonwealth’s ruling were entitled to a potential chilling merits and business.... effect operate only appeal, denied a motion to dismiss. On not on the Chief Exec- supreme utive but could Florida court ordered the dis- also extend to case individuals might rulemaking giv- he missed powers wish to via because were consult this communi- exclusively legislature: cation en medium. point, judiciary At this into comes A unwillingness lack candor head-to-head legislative conflict with the

participate making process the decision rulemaking prerogative. likely compelled is as flow 4(a) III, Article of the Florida disclosure of the fact consultation as gives power Constitution each house the from the disclosure the content of procedure. determine its own rules of As consultation. historically interpreted Court, by this Taylor, 409 S.E.2d 138-39. provision gives each house the level, On the federal Consumers Union only prerogative adopt, but also to sued press when it was denied access enforce, interpret, suspend waive or what- galleries of the United States Senate and procedures necessary ever it deems or de- Representatives House of because long so require- sirable constitutional “independent publica deemed not to be an enacting ments for the of laws are not required by tion” as senate and house rules. violated. Correspon Consumers v. Periodical Union Ass’n, dents’ 515 F.2d make, prerogative It is (D.C.Cir.1975), denied, cert. interpret procedural and enforce own its 46 L.Ed.2d 640 The trial judiciary compel rules and the cannot justiciable, court held case and found the purely legislative to exercise a arbitrary, capricious,

rules to be unreason prerogative. able, and violative of the United States Con appeals reversed, stitution. The court of open all matters of method are may invade limitations legislature not

Just as the house. rulemaking for procedural determination province of our may not the system, we invade the court Meekins, (quoting v. Malone Id. 337-38 procedur- internal legislature’s province of (Alaska 1982); P.2d United legisla- A rulemaking. member the al Smith, States a point regarding order ture can raise a (1932)). 76 L.Ed. any rules of house or violation of the a that The Iowa Senate has determined the forum for de- proper That is senate. itemized call detail wholesale disclosure its propriety of the activities termining the harmful the telephone records would be to in complained of the suit below. ability carry to out public and to the senate’s omitted). (citations at 1021-22 Id. in the responsibilities. Implicit senate’s its legis- a is a citizen’s to contact decision Supreme The Court addressed Alaska mail, by telephone person, or lator League In Wom- similar issues. Abood doing that so suspicion or (Alaska without fear 1987), a P.2d en subject inquiries from the to citizen dispute over committee meet- arose closed anyone regarding na- press or else League legislators ings. The asserted Apart ture conversation. own rules and the Alaska had violated their possible gener- or harassment inconvenience case Open Meetings remanding Act. In ated, subjected inquiry to about a citizen dismiss, to de- instructions senator, refusing contacting may, on to legislature: ferred content, negative inferences discuss find expressly commits The Alaska Constitution drawn from that fact alone. are authority adopt its legislature procedure. The own rules in weighing of these factors is con- legislative business should be whether dis digenous political process and is proce- session is a ducted closed tinctly province of the senate. As within the traditionally question which has been dural representatives po with the involved elected subject legislative rules.... conditioned to process, litical senators are League Legislators that asserts questions. poli A senatorial decide Rule and have violated both the Uniform clearly cy governing these actions therefore have, Open Meetings they If Act. proceeding.” We a “rule of constitutes justiciable places hold that these claims are ruling affirm trial court’s therefore judiciary in conflict with direct the senate release constitutionally legislature’s authorized nonjusticiable political question. constitutes As rulemaking prerogative.... we stated challenge proper forum for a Malone, “except extraordinary cir- policy this lies not in the matter senate’s cumstances, rights persons as where the courts, political process. but in the See Mof legislature are who not members of at 1022. fitt, 459 So.2d involved, judi- not function of the it is juncture pause At to treat this we

ciary require follow Register contentions of support proposi- three additional its own rules.” Smith, First, tion, and Council and Council. cited United States v. we a “correct the rule that assert once we established where the Court discussed it is a proceedings,” rules of only justiciable legisla- on a definition of limitations jury wheth question of fact for the to decide adopt of its body’s tive rules such policy at constitutes body may er the senate proceedings are that the cite no Register and Council a rule. The ignore its constitutional restraints rules assertion, for this rights, there whatsoever violate fundamental no whatsoever can rationale relation conceive should be a reasonable between no case support a contention. We note proceeding estab- the mode or method of jury deter has allowed a in which court by the rules and the result which lished an action constituted whether such sought But within these mine to be obtained. Third, proceeding. argument Register rule This has no Council us in and warn political question “[t]he merit. their brief that doc- tempting refuge adjudica- trine is a from the Second, Register Council and note the tion difficult constitutional claims.” See passed policy question senate in after Weinberger, Ramirez de Arellano v. 745 F.2d Dwyer refused release the records at is- (D.C.Cir.1984), vacated on other Register sue. The and Council therefore grounds, 471 U.S. 105 S.Ct. question policy suggest exists whether the (1985). implicit L.Ed.2d 255 Their assertion operate retroactively can and remark that a that, seems to be rather than consider the question regarding of fact exists whether the controversy, true merits the district operate senate intended the rule to retroac- simple legal court chose to defer to a doc already tively. We that sen- have noted trine, agree argu and if we do not with the out carrying ate’s methods of its rales of Council, Register ments we will be proceedings, long constitutionally so as doing engaged the same. We note have sound, beyond lie the intervention of the “discriminating precise in a inquiry into the judiciary. posture particular facts and of [this] case” exception mandatory With the of the few challenges find Regis raised provisions noted the Iowa Constitution of against application ter Council of the given assembly hand free political question doctrine be without mer determining in procedure. its rales of Baker, it. See at U.S. at strictly Whether either chamber observes 710, 7 at 686. L.Ed.2d suspends these rales or waives or them is entirely a matter within its own control in Depart- IV. Records Possession discretion, long so as it observes man- ment of General Services datory requirements of the Constitution. Although joined in Dwyer’s Gamble motion requirements If of these are covered summary judgment, ruling the trial court rules, obeyed, its must rales be explicitly did not mention the basis for dis- but the observance nonobservance its posal of brought against the action Gamble. remaining subject is rales to review Register The and Council assert the trial the courts. against in dismissing erred the action Grimes, regard- Gamble because the court’s decision Carlton v. 237 Iowa ing justiciability dispositive was not regard matter with to Gamble. As to Gam- Register argue and Council the senate ble, the Register and claim Council he over- may retroactively not apply rale because the department possession sees executive in passed requests pro- rale was after their of executive branch is an records Gamble Regis- duction of the appears records. It employee of the govern- executive branch of arguing simply by writing ter is that letters ment, legislative. Register not the making records, request they for the legal Council contend Gamble is a custodian established a vested substantive to ob- of the records under chapter Iowa Code 22. records, proceed tain the or at least to under Dwyer Dwyer, argue only Gamble and place procedures in time. This secretary senate, capacity in his as is argument clearly fails two reasons. legal custodian, only party and the First, passed the senate the rule at two with to release the records in September of two months before the question. Dwyer additionally Gamble and Register and fit to Council saw file suit. argue question “public are not Secondly, retroactivity itself provided records” within the definition is adopting moot the senate in rale 22.1(3). Code simply memorializing writing policy applying informally been along. analysis already had all we have en Therefore, regardless of gaged whether the in regarding justiciability written of this applied retroactively, rale is dispositive the same rale is matter of whether the applied, and the same result is against reached. and Council can maintain an action keep ly agree that of us who serve in those The senate’s decision Gamble. scrupulous government within branch of should be question in confidential falls respectful according to the other power of deference constitutionally-granted concerning those entrusted proceedings. branches matters its rules senate determine Const, Carlton, majority Ill, 9; that agree § to them. I also with the Iowa art. See determining of a the test for the existence at at 889. Due question that set in Baker v. textually consti is out demonstrable existence of Carr, to the 369 U.S. S.Ct. tutional commitment of the issue sen- ate, I further judiciary, department L.Ed.2d concur nor the neither services, first factor department present that the case involves the exec- textually branch, power hold interfere of that test: whether there is utive commitment of procedures. demonstrable constitutional with contradict those Cf. Baker, political depart- at at 7 the issue to coordinate 686; majority is on solid League ment. Indeed the L.Ed.2d at Women 337; Union, ground observing responsibility 515 F.2d 743 P.2d at Consumers Gorsuch, Malone, 1347; 1160; establishing authority at its own rules 703 P.2d Assembly proceedings is rests with General 650 P.2d at 357. Gamble therefore without authority phone records at and not the courts. to release the permission the senate. issue without not is here. We are This is what involved judicial and execu- It would constitute clear proceedings. dealing with rules of Rath- procedures internal tive interference interpretation of a er we faced with an legislative if we were to order branch carefully ago by the years fashioned statute department branch to release an executive open legislature provided when it access copies department rec- branch did not legislature records. The already it is ords when we determined difficulty. On fashion this statute without legislature beyond authority our to order the hand had to consider interest one precisely same records. to release taxpayers’ right to information on granted appellees’ properly being spent. The trial court On their dollars were where summary judgment. legislature motion had hand the also other seeking the interests citizens consider AFFIRMED. legisla- to their elected comfortable access Note, Open Meetings A tors. The Iowa Act: HARRIS, J., justices except All concur Legislative Ineffectiveness, 62 Lesson dissents, joined LARSON and who is 1108,1113 (discussing the Iowa L.Rev. ANDREASEN, JJ. acts). I policies behind the information Justice, HARRIS, (dissenting). legislature freely acknowledge it was for the through competing these consider- to sort According principle to a of dis- venerable legislative process and strike a in the ations power putation, to frame the judged in the forum of balance that would be includes also the to control an- last to intrude public opinion. I would be the majority may Although have em- swer. process. into that proper analysis it not reached ployed the controlling question and has thus the correct legislature not be allowed What the should ques- reached the incorrect conclusion. thing by the very authorized to do is the legislature be can tion should whether enacting question by majority: to resolve self-imposed statutory obligation suspend a law, chap- now open-records Iowa Code repealing the stat- amending or without first (1995), in to the infor- favor of access ter 22 I answer be no. dissent ute. The should binding mation, making expressly the access I think the trial court should be because then, itself, determina- on ad hoc reversed. actually judicial in withhold nature —to tion — majority notes, majority application. political-ques- statute’s As the authority misguided according princi- from the primarily tion doctrine stems pow- legislature ground separation on a I ple separation powers. enthusiastical- See Assembly gations ers because to do so abdicates of General members. 22.7(30). belongs exclusively properly § to the courts. Iowa Code there- authority, Under well later dis- established by acknowledged exemption that an must cussed, it province legislature is the of the to in under section 22.7 order for exist its own laws, enact the once it is but enacted escape accessibility to chapter records under province interpret exclusive the courts to records, including public 22. Full access to the law. records, legislative promised is unless some escape proven. lawful route can be enacted, lawfully

Once a is statute all society, legislators, members of even must possibilities suggested. Two such It is comply provisions. with its The General As- premature to consider the first route because sembly by required Iowa should be to abide posture appeal of this case—an from chapter analysis Code A careful of arti- 22. summary judgment. grant The sec- cle III section Iowa Constitution impassible. is ond route mandates this conclusion. suggested II. The first route I. chapters Three of the Iowa con- Code exception in confidential records Iowa Code public governmental trol to access informa- 22.7(18). provision that section Under rec- tion: the Act Examination Public Records kept ords to be confidential include: records), 22; (open chapter Iowa Code rule, required law, Communications not (IAPA), Iowa Administrative Procedure Act procedure govern- that are made to a 17A; chapter Iowa Code and the Official body any employees ment or to of its Meetings Open Public (open to Act meet- persons government, identified outside of ings), chapter Iowa Code 21. Each these government body to the extent that chapters aspect focuses on different receiving those communications from such public gov- need relating for information persons government outside of rea- could ernmental affairs. sonably persons believe that those open The law was records enacted discouraged making be them to that year open meetings the same law was government body they if were available adopted. 1967 Acts ch. 106. It accords general public examination. Notwith- copy citizens the examine all standing provision: 22.2(1). “public § records.” Iowa Code n . The communication is a public rec- legislature “public define chose to the term person ord extent that the outside broadly. According records” section Code government making communication 22.1(3) “public the term records” includes public consents its treatment as a rec- any “information, preserved stored or ord. medium, belonging of or to this state or n . Information contained in a communi- governmental body].” [other In section is a cation record the extent that 22.1(1) legislature carefully defined directly it can be disclosed without or indi- “governmental body” term to include state rectly indicating identity person government. in sharp This is contrast with government making outside a it or en- law, open meetings its choice where abling identity others to ascertain the 21.2(1) “governmental Iowa Code person. body” state,” was not defined to include “this [Dealing c. with law boards, councils, enforcement tech- but confined to commis- niques.] governmental sions other bodies created

by statute or executive order. Thus the certainly can argue, One as does ma- and, assumed, carefully it must be jority, that pertaining disclosure of records deliberately, law crafted incoming legisla- calls from constituents to embrace its own records. may “chill” such tors communications. It is

There possible is also other evidence of that at least some of types these chapter apply intent to A protection make to itself. calls are entitled to under the Act. statutory exception exempt was created to It is clear outgoing less whether disclosure of gathered from disclosure records in investi- protected. statutory calls would be ex- 22.7(18) prerogative courts alone de- emptíon “[c]om- in section focuses body” government the law is. made to a clare what munications ... receiving body those government and “the Mundie, ex rel. State Lankford communications.” (Iowa 1993). 462, 463 See also West N.W.2d litigate this be- parties did Mills, Bank v. 482 N.W.2d Des Moines State summary grant of the trial court’s cause of James, (Iowa 1992); State explained in

judgment. reasons division For (Iowa 1986); 465, 467 Ruthven Con III, the case should be remanded I think Emmetsburg Community Sch. Dist. v. sol. of section court where the effect district (Iowa Dist., 1986); 382 N.W.2d Sch. 22.7(18) enough It litigated. is here can be (Iowa Junko, 366 N.W.2d 539 Franke v. no provides it basis for to observe that me 1985); Valley Community v. Slockett judgment. summary grant for a of (Iowa 1984); Dist., 446, 448 359 N.W.2d Sch. Jefferson, City v. 257 Iowa dispute Richardson of is the hold- III. The heart of 709, 717, 134 prerogative N.W.2d ing Assembly’s General authorizes proceedings own rules of to set its acknowledge a be found that Cases can a has suspend operation of statute it it to ignore legislature’s to or contradict ex- I binding upon For two reasons made itself. isting This view seems to have statutes. First, by any of not stretch think it cannot. commentators, such as Black- originated with policy, I con- imagination, can believe this stone, system familiar with a of who were legislator’s cerning individual does the responsibility, which the parliamentary proceed- a public, is rule of interface with the supreme, reign did even to parliament indeed ing. Secondly, I am convinced we should jurisdiction holding of final the extent legislature cannot persist our view that This appeals from the courts. or- consider its binding effect of excuse itself many has led courts misconstrue ientation amending or without first own enactments legislative one session can- principle: a valid repealing them. its successors. But this limitation not bind My strongest disagreement with the A. only in it can- properly exists the sense that authorization of the majority with its lies legisla- legislatures to future renew bind legisla- a “political question” escape route: repeal not to it. tion or to be bound See tive of a direct constitutional claim (Iowa State, Frost N.W.2d legal consequences used in order to avoid the 1969). “claim” was of own enactments. The its State, 61 v. In Council AFSCME/Iowa ruling. by transparent triggered legal a (Iowa 1992), rejected we 394-95 senate, secretary F. John defendant of preroga- a claim that another constitutional Dwyer, produce call detail records refused (budgeting process) provided the Gener- tive said, because, “production he justification violating Assembly with al rights constitution- privacy would violate by way of statute. Al- contract it entered speech and guarantees al freedom pres- implicated in the though no contract is chilling effect on have a detrimental authority that dispute, is ses- ent AFSCME willingness petition rights and citizens’ legislature ignore are not free sions of our Dwyer I am Mr. their elected officials.” sure predeces- their of enactments of the effects ability but never- person of considerable sors. obviously has never person is a who theless judicial It cannot be taken an oath of office. B. Article III section 9 of the Iowa Con- in- seriously ruling his did not argued that each house the General stitution accords laws, interpretation of a function volve Assembly authority to “determine its rules of exclusively vigilantly claimed interpreted have The trial court proceedings.” subject courts. matter of authority to include the this suit, I at acknowledg- interpretation believe be expressed this have our We often plain language. with the separation powers odds Constitution’s under the ment obviously to ac- doctrine, provision intended legis- This prerogative it is the power be, es- each house what the law shall but cord lature to declare orderly me, system processing profoundly disappointing will not tablish a legislators public, sufficiently bills. How individual meet or shake the if cosmos. The motivated, ways acquiring communicate with the is matter of has importance, absolutely public expendi- considerable but information the details Assembly’s nothing alarming to do with the General I find is our tures. What do sur- proceedings. ground rules of See Watson v. in the separation render vital Califor Comm’n, powers. acquired ground nia Fair Political Practices We consid- (2 Cal.App.3d Cal.Rptr. controversy erable cost. some future Dist.1990) (term proceedings” majority holding surely “rules of con- will haunt us. fined to manner which a drafts my respected colleagues I Like rules, funds, appropriates its its or chooses profound reluctance to the actions employees, and does not concern officers government. of either other branch of state constituents); legislators’ relationships with them, compliment It espe- is however no Tucker, Sweeney 473 Pa. 375 A.2d cially they when are confronted members (1977) (“rules proceedings” public, to accord other branches more procedures operating defined as internal proper. than deference Neither is it legislature). preserve insult to them to to our branch majority support Cases cited responsibilities exclusively those entrusted Both been misconstrued. v. I judgment us. think the trial Moffitt Willis, 1018, (Fla.1989), 459 So.2d should be reversed and the case remanded League Abood v. Women 743 P.2d proceedings for the further I have described. (Alaska 333, 1982), challenge access to meetings committee under state ANDREASEN, JJ., join LARSON and open meetings laws. Consumers Union v. this dissent. Association, Correspondents’ Periodical 1341, (D.C.Cir.1975), F.2d 1342-43 de cert.

nied, 96 S.Ct. 46 L.Ed.2d (1976), involved accreditation of a mem periodical press

ber media to the Congress.

galleries of Such issues are re

solved under Iowa law because the state

legislature exempted open itself from the meetings act. The same cannot be said for Ayrlahn JOHNSON, Appellant, H. law. pertinent More here two eases involv NICKERSON, Rosenberg Don C. H. Paul ing phone Jersey Newspaper records. North and The Des Moines Freeholders, N.J.Super. v.Co. Company, Appellees. Tribune (App.Div.1990), A.2d modified remanded, grounds other 127 N. J. No. 93-1703. (1992), A.2d 693 denied access rec Supreme Court of Iowa. protected privacy ords based on interests Amendment, Taylor the Fourth while Jan. 1996. Enterprises, 242 Worrell Va. 409 S.E.2d (1991), denied access under a statutory exception. Notably, neither court nonjustieiable

held the matter was a

question. am,

Appellate judges I writing, as dis- tempted exaggerate

sent are often

importance holding they with which

disagree. recognize I the immediate majority though

fallout from opinion,

Case Details

Case Name: Des Moines Register & Tribune Co. v. Dwyer

Court Name: Supreme Court of Iowa

Date Published: Jan 17, 1996

Citation: 542 N.W.2d 491

Docket Number: 94-901

Court Abbreviation: Iowa