Bruce HOROWITZ, William Parker, James Love, David Loutrel, Wilson A. Rice, John E. Duggan, Donald E. Clocksin, Thomas G. Beck, Elizabeth Ratner, Randall Simpson, Philip R. Volland, Jeffrey Lowenfels, Appellants/Cross-Appellees, v. The ALASKA BAR ASSOCIATION, Appellee/Cross-Appellant.
Nos. 4310, 4311.
Supreme Court of Alaska.
April 4, 1980.
John M. Conway and Patrick B. Gilmore, Atkinson, Conway, Young, Bell & Gagnon, Anchorage, for appellee/cross-appellant.
OPINION
CONNOR, Justice.
At issue in this case is whether a meeting of the Board of Governors of the Alaska Bar Association held in Hawaii in 1978 was valid.
This is an appeal from an order of the Superior Court, Third Judicial District, Anchorage, Mark C. Rowland, J., granting the Alaska Bar Association‘s (hereinafter ABA) motion for judgment on the pleadings pursuant to Alaska Rule of Civil Procedure 12(c) but denying ABA‘s motion for attorney‘s fees. The suit was brought against the ABA by ten members and two non-members seeking a declaration that a business meeting of the ABA Board of Governors held in Kauai, Hawaii in February, 1978,1 was void because it violated their federal and state due process rights and Alaska‘s open meeting statute. Appellants challenge the Superior Court‘s rejection of their due process claims and the finding that the open meeting statute, as part of the Administrative Procedure Act, is not applicable to the ABA. The ABA has cross-appealed from the superior court‘s denial of its motion for an attorney‘s fee award. The superior court denied that award on the ground that the suit constituted public interest litigation.
The open meeting statute contained in Sections .310 and .312 of the Alaska Administrative Procedure Act,
Administrative Procedure Act. The bylaws and regulations adopted by the board or the members of the Alaska Bar under this chapter are not subject to the Administrative Procedure Act (AS 44.62).
Appellants assert that this language meant only to exempt the ABA from the procedures prescribed by the Administrative Procedure Act for the adoption of bylaws and regulations. If the meaning of a statute is plain it should be enforced as it reads without judicial modification or construction. Poulin v. Zartman, 542 P.2d 251, 270 (Alaska 1975), reh., 548 P.2d 1299 (Alaska 1975); Application of Babcock, 387 P.2d 694, 696 n. 6 (Alaska 1963); Sutherland, Statutes and Statutory Construction, § 45.02 at 4-5 (4th ed. 1973).
The language of
Other statutory provisions empower the ABA to adopt reasonable bylaws and regulations, and other reasonable provisions concerning annual and special meetings and all other matters affecting in any way the organization and functioning of the Alaska Bar.
Alternatively, appellants argue that despite
Moreover, the interpretation contended for by appellants would mean that the legislature‘s action in 1966 amounted to an implied repeal of
We hold that the Board of Governors’ meeting in question was not subject to the requirements of
Appellants also claim that by reason of the meeting being held in Hawaii, they were denied due process of law. We will take cognizance of a due process claim only where there is an alleged deprivation of a sufficient liberty or property interest to warrant constitutional protection. Herscher v. State Dept. of Commerce, 568 P.2d 996, 1002 (Alaska 1977); Nichols v. Eckert, 504 P.2d 1359, 1362 (Alaska 1963). On the record we do not think that a cognizable deprivation of property or liberty has been made out. We find no merit in this contention.
As to appellee‘s cross-appeal, we find no abuse of discretion by the superior court in denying appellee an award of attorney‘s fees, because the case was brought in the public interest, under Civil Rule 82. Gilbert v. State, 526 P.2d 1131, 1136 (Alaska 1974).
AFFIRMED.
DIMOND, Senior Justice, with whom RABINOWITZ, Chief Justice, joins, dissenting in part.
Administrative Procedure Act. The bylaws and regulations adopted by the board or the members of the Alaska Bar under this chapter are not subject to the Administrative Procedure Act (AS 44.62).
The effect of the majority opinion is to hold that this statute plainly1 exempts from the Administrative Procedure Act not only the Alaska Bar Association‘s method of adopting bylaws and regulations, but also any act of the Alaska Bar which happens to be authorized by bylaw or regulation, including violation of the open meeting act,
The majority errs, I believe, in concluding from the fact the Alaska Bar‘s bylaws and regulations are exempt from the Administrative Procedure Act that the Alaska Bar, as an agency, is exempt from the Administrative Procedure Act, including its open meeting requirements.
Agency meetings public. (a) All meetings of a legislative body, of a board of regents, or of an administrative body, board, commission, committee, subcommittee, authority, council, agency, or other organization, including subordinate units of the above groups, of the state or any of its political subdivisions, including but not limited to municipalities, boroughs, school boards, and all other boards, agencies, assemblies, councils, departments, divisions, bureaus, commissions or organizations, advisory or otherwise, of the state or local government supported in whole or in part by public money or authorized to spend public money, are open to the public except as otherwise provided by this section.
This comprehensive statute includes meetings of the Board of Governors of the Alaska Bar Association not exempted under
[R]evenues raised through exercise of such governmental powers by an agency created by the legislature and pursuant to legislative authorization constitute state funds no less than revenues deposited in the State Treasury . . . .
State Licensing Board of Contractors v. State Civil Service Commission, 110 So.2d 847, 851 (La.App.1959), aff‘d, 240 La. 331, 123 So.2d 76 (1960).
I conclude that the public meeting portion of the Administrative Procedure Act is applicable to the Board of Governors of the Alaska Bar Association.
(1) matters, the immediate knowledge of which would clearly have an adverse effect upon the finances of the government unit;
(2) subjects that tend to prejudice the reputation and character of any person, provided the person may request a public discussion;
(3) matters which by law, municipal charter, or ordinance are required to be confidential.
The Alaska Bar Association admits that its Hawaii meeting did not comply with the open meeting statute in a number of respects. These are listed in note 3 of the court‘s opinion. It is my opinion that there is another way in which the meeting did not comply with the requirements of the statute. That is the fact that the meeting was held in Hawaii and not in Alaska. I believe it is fair to presume that when the Alaska legislature required meetings to be open to the public, it contemplated that the public should consist principally of people residing in Alaska. It would follow from this that Alaska residents should not be expected to travel outside the state in order to take advantage of their right to be present at a meeting of an Alaska governmental agency. In my opinion, the public meeting statute was violated by the fact that the Board of Governors met in Hawaii and not in Alaska.
With respect to the cross-appeal regarding denial of attorney‘s fees to the Alaska Bar, I concur in the court‘s holding.
RABINOWITZ, Chief Justice, dissenting in part.
I concur in Senior Justice Dimond‘s dissent. In addition to the grounds advanced by Justice Dimond, I wish to note a further point of disagreement with the majority opinion. More particularly, I have concluded that even if the Alaska Bar Association‘s meeting was exempt from the Administrative Procedure Act, holding the meeting in Hawaii violated
Public Purpose. No tax shall be levied, or appropriation of public money made, or public property transferred, nor shall the public credit be used, except for a public purpose.
(1) judicial or quasi-judicial bodies when holding a meeting solely to make a decision in an adjudicatory proceeding;
(2) juries;
(3) parole or pardon boards;
(4) meetings of a hospital medical staff; or
(5) meetings of the governing body or any committee of a hospital when holding a meeting solely to act upon matters of professional qualifications, privileges or discipline.
This same principle is subsumed within the broader constitutional guarantee of substantive due process of which appellants argue they have been deprived. Substantive due process is denied when the actions of a public agency are arbitrary and bear no reasonable relationship to a legitimate governmental purpose. Concerned Citizens of Kenai Peninsula v. Kenai Peninsula Borough, 527 P.2d 447, 452 (Alaska 1974). While one challenging government action bears a heavy burden of proof under this standard, I am persuaded it has been met here. The ABA has not offered any legitimate reasons for holding the meeting in Hawaii.
The ABA alleges appellants have not shown that they were deprived of any cognizable liberty or property interest by the actions of the Board of Governors, since no issues directly affecting the appellants’ livelihood were resolved at the meeting, and since none of the appellants have indicated that they attempted to attend the meeting in Hawaii or would have attended the meeting even if it had been held in Alaska. There remains the fact, however, that property of appellants in the form of mandatory dues money was spent by a public agency in an apparent arbitrary manner. This, in my opinion, is probably sufficient to establish a violation of substantive due process under the standard noted herein.