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Whalen v. Hanley (1/31/2003) sp-5660
Whalen v. Hanley (1/31/2003) sp-5660
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
RONALD WHALEN and CAROL )
WHALEN, ) Supreme Court No. S-9824
)
Appellants, ) Superior Court No. 1JU-98-
2485 CI
)
v. ) O P I N I O N
)
CO-CHAIR MARK HANLEY and ) [No. 5660 - January 31, 2003]
CO-CHAIR RICHARD FOSTER OF )
THE STATE OF ALASKA HOUSE )
FINANCE COMMITTEE, and )
REPRESENTATIVE TERRY )
MARTIN, )
)
Appellees. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Larry R. Weeks, Judge.
Appearances: Ronald E. Whalen, pro se, and
Lawrence Curt Delay, Friday Harbor,
Washington, for Appellants. Susan D. Cox,
Assistant Attorney General, and Bruce M.
Botelho, Attorney General, Juneau, for
Appellees Mark Hanley and Richard Foster.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
Legislative immunity protects legislators with respect
to "any statement made in the exercise of [their] legislative
duties."1 A state employee sued legislators for defamation. He
claimed that they attached defamatory information to minutes of a
legislative finance committee meeting in which legislators
discussed state claims to recover from him and other state
employees payments they were allegedly ineligible to receive.
Because the legislators' duties clearly included conducting the
meeting, discussing the payments, and issuing meeting minutes, we
affirm the superior court's dismissal of the lawsuit.
II. FACTS AND PROCEEDINGS
Ronald Whalen was an employee of the State of Alaska's
Marine Highway System. He and other Alaska Marine Highway System
employees became the subjects of an investigation into their
eligibility to receive cost-of-living-differential (COLD)
payments. In June 1995 Mark Boyer, Commissioner of the Alaska
Department of Administration, sent an interoffice memorandum to
Jim Ayers, chief of staff to Governor Tony Knowles, discussing
claims against Whalen and other employees and possible settlement
of those claims. The state entered into an agreement with the
workers in August 1995. As part of the agreement, all actions
the state had taken against Whalen were "vacated and dismissed
with prejudice."2
On March 20, 1996 Representatives Mark Hanley and
Richard Foster, the co-chairs of the House Finance Committee,
conducted a meeting of that committee; also attending were eight
other legislators, Commissioner Boyer, and other members of the
executive branch. During the meeting the legislators discussed
receipt of COLD payments by the Marine Highway System employees
who were allegedly ineligible to receive COLD payments at the
higher rate paid to residents, and discussed the settlement of
the state's recovery claims. Ronald Whalen and his wife Carol
allege that Commissioner Boyer's June 1995 memorandum was
attached to the minutes of this meeting, and that the whole
document was disseminated to the public. On March 21, 1996 the
Anchorage Daily News published a story about the COLD payments
and the settlement. The story identified Ronald Whalen and other
Alaska Marine Highway System employees by name.
Ronald Whalen made several public information requests
for documents and tapes relating to the March 1996 committee
meeting. He contacted Kathy Holmquist, then Senate Finance
Committee secretary, to request a copy of the committee meeting
minutes and the June 1995 Boyer memorandum. Although Holmquist's
response to Whalen included the Boyer memorandum, the parties
dispute whether the Boyer memorandum was also included in the
materials disseminated to the public after the March 1996
meeting. Holmquist explained in an August 1996 letter that "only
an excerpt (paperclipped in the packet) with no accompanying
attachment was before House Finance members when [the] March 20,
1996, discussion occurred."
The Whalens filed a superior court defamation complaint
in February 1998.3 Their amended complaint asserted defamation
claims against the State of Alaska; Representatives Mark Hanley,
Richard Foster, and Terry Martin; Senators Rick Halford and Steve
Frank; state employee Kathy Holmquist; and twenty unnamed state
employees. The amended complaint alleged that the state
defendants had defamed Ronald Whalen and that Carol Whalen had
also suffered damages. The state defendants filed motions for
dismissal under Alaska Civil Rule 12(b) and for summary judgment
under Alaska Civil Rule 56. The superior court granted the
motion to dismiss the claims against Senators Halford and Frank
and Ms. Holmquist.4 The superior court dismissed by summary
judgment the claims against the remaining defendants in May and
July 2000. The superior court issued its final judgment in July
2000.
The Whalens appeal the summary judgments granted to
Representatives Hanley, Foster, and Martin.5 They do not appeal
the dismissal of the claims against Senators Halford and Frank
and Ms. Holmquist. The superior court dismissed the claims
against the state after the plaintiffs agreed that AS
09.50.250(3) granted the state immunity against defamation suits.
The Whalens do not appeal the dismissal of their claims against
the state.
III. DISCUSSION
A. Standard of Review
We review a grant of summary judgment de novo, viewing
the facts presented in a light most favorable to the non-movant.6
This review involves determining whether any genuine issues of
material fact exist.7 A grant of summary judgment will be upheld
if there are any grounds to support the result reached by the
trial court.8
We apply our independent judgment to questions of
constitutional law and statutory interpretation, giving a
reasonable and practical interpretation in accordance with common
sense.9
B. Because Representatives Hanley and Foster Acted
Within the Scope of Their Legislative Duties,
Legislative Immunity Protects Them from the Whalens'
Defamation Claims.
The Whalens advance various theories why legislative
immunity does not bar their claims against Representatives Hanley
and Foster. Thus, they contend that Representatives Hanley and
Foster had no legislative duty to question the Department of
Administration's authority to settle the claims against Whalen
and others. They contend that Representatives Hanley and Foster
lost their immunity by knowingly or recklessly disregarding the
falsity of their statements. They assert that the defendants
lost their immunity by excessive publication, by failing to
restrict their statements to executive session, and by failing to
redact information identifying Ronald Whalen. They argue that
defendants had only conditional immunity, which they lost by
publishing statements that did not advance a legislative purpose.
And they contend that by exceeding their authority, the
defendants lost their immunity because they acted outside the
"sphere of legitimate legislative activity."10
At the heart of the Whalens' arguments is their
contention that legislative immunity only protects legislators
with respect to statements they make in the exercise of their
legislative duties. They argue that Representatives Hanley and
Foster acted outside the scope of their legislative duties when
they "question[ed] Boyer's authority to enter into a settlement
on the COLD payment issue." The Whalens argue that "only the
State Affairs Committee has jurisdiction over activities of the
Department of Administration, and therefore only that Committee
had the legislative duty to question the actions of that
department."11 Representatives Hanley and Foster respond that the
review and discussion of the COLD settlement at a legislative
committee hearing "meets the definition of a core legislative
activity that is protected by immunity."
The Alaska Constitution and the Alaska Statutes both
provide immunity to legislators for statements made in the
exercise of their legislative duties.12 We have held that
legislative duties include "activities internal to the
legislature, such as voting, speaking on the floor of the House
or in committee, authoring committee reports, introducing
legislation, and questioning witnesses in legislative hearings."13
Legislative immunity allows the legislature to question acts by
the executive without intimidation.14 It also protects
legislators from "the burdens of forced participation in private
litigation."15
Legislative immunity, where it applies, is absolute,
and not merely qualified.16 To avoid summary judgment, the
Whalens at a minimum had to demonstrate that Representatives
Hanley and Foster had some personal and identifiable role outside
their legislative duties in disseminating the Boyer memorandum.
Representatives Hanley and Foster's motion for summary judgment
successfully argued that even if the document the Whalens allege
was affixed to the minutes of the hearing - the defendants
contended that it was not - "such actions are quintessential
legislative acts that fall squarely within the scope of
legislative immunity."
Legislative immunity under Alaska's constitution is
patterned after the federal speech or debate clause.17 We
therefore look to the United States Supreme Court's
interpretation of the scope of federal immunity as a model for
determining the scope of legislative immunity under Alaska's
constitution: The Supreme Court interprets federal legislative
immunity broadly for actions properly within the legislative
sphere and declines to impose liability regardless of whether the
Court considers the legislative acts useful or necessary. "[W]e
have no authority to oversee the judgment of the Committee . . .
or to impose liability on its Members if we disagree with their
legislative judgment."18
Ronald Whalen's affidavit opposing summary judgment
merely states that on March 20, 1996 the House Finance Committee
discussed the COLD payments and the settlement, and that the
minutes of that meeting, when published, included the Boyer
memorandum. But the Whalens made no showing that the discussion
of the payments or the settlement was outside the legislative
sphere.
At most Ronald Whalen's affidavit attributes the
distribution of the identifying documents to Representatives
Hanley and Foster. Although there may be a genuine factual
dispute about whether they actually had any part in the public
dissemination of the Boyer memorandum, it is not a material
dispute. Assuming they caused its public distribution, the
question here is whether they are nonetheless protected by
legislative immunity, as the superior court held.
This case does not require us to define with precision
the ultimate limits of protection conferred by legislative
immunity, or the scope of a committee's legislative duties
protected by immunity. Taking all permissible factual inferences
in favor of the Whalens, it cannot reasonably be said that these
legislators acted outside the legislative sphere. The alleged
publication of Whalen's name occurred while Representatives
Hanley and Foster were carrying out legislative duties.
The Whalens' remaining appellate contentions concerning
immunity require no extended discussion. Some - such as
arguments that the legislators knowingly or recklessly made false
statements or should have limited the publication - are founded
on an inaccurate assumption that legislative immunity is
conditional, not absolute.
We therefore hold that the superior court did not err
in granting summary judgment to Representatives Hanley and
Foster.19 The Whalens also assert in their reply brief that
AS 09.50.250 waives immunity. This contention is completely
without merit. The statute does not purport to waive or limit
the legislative immunity conferred by article II, section 6 of
the Alaska Constitution and AS 24.40.010.
C. The Superior Court Did Not Err by Dismissing Carol
Whalen's Claim.
Carol Whalen argues that she was also entitled to
assert a defamation claim, and that the superior court erred in
dismissing her individual claim on the alternative ground she had
no cause of action.
We do not need to decide whether Carol Whalen could
assert an actionable defamation claim, even though, as the
superior court observed, "[t]here is no evidence that indicates
any reference to the wives in either the House Finance Committee
meeting or the minutes." Whatever the possible merits of her
claim, it is barred by absolute legislative immunity for the
reasons we discussed above. We therefore do not consider the
superior court's alternative ground for dismissing her individual
claim.
IV. CONCLUSION
We AFFIRM the summary judgment for Representatives
Hanley and Foster.
_______________________________
1 Alaska Const. art. II, 6; AS 24.40.010.
2 The agreement provided in part:
The actions taken against . . . Ronald E.
Whalen regarding COLD eligibility will be
vacated and dismissed with prejudice.
However, [he] must re-certify and be found
eligible for COLD [according to state
residence requirements] in order to again
receive COLD payments. . . . Mr. Whalen
release[s] the State from any and all claims
or liability relating to COLD up to the date
of the execution of this agreement.
3 The Whalens were joined in the original complaint by two
other employees and their wives. These four plaintiffs have not
appealed.
4 The superior court converted the motion to dismiss into a
motion for summary judgment, which the court granted in favor of
Ms. Holmquist and Senators Halford and Frank.
5 The superior court dismissed the Whalens' claims against
Representative Martin on the additional ground that "[t]here has
been no notice of appearance and no proof of service on him."
The Whalens argue in their reply brief that the superior court
erred in dismissing for this reason because "it should have in
all fairness given the plaintiffs prior notice and opportunity to
address the issue." This assertion is not sufficient to preserve
a claim of error. The Whalens point to no record support for
their argument. We therefore affirm the dismissal as to
Representative Martin on this ground, and do not address the
immunity issue as to him.
6 Thoma v. Hickel, 947 P.2d 816, 818 (Alaska 1997).
7 Beilgard v. State, 896 P.2d 230, 233 (Alaska 1995).
8 Carlson v. State, 598 P.2d 969, 973 (Alaska 1979).
9 Muller v. BP Exploration, Inc., 923 P.2d 783, 787 (Alaska
1996); Todd v. Harvey, 917 P.2d 674, 677 (Alaska 1996); ARCO
Alaska, Inc. v. State, 824 P.2d 708, 710 (Alaska 1992) (citation
omitted).
10 The Whalens cite Tenney v. Brandhove, 341 U.S. 367, 376
(1951), in support.
11 Boyer was then the Commissioner of the Alaska Department of
Administration.
12 Article II, section 6 of the Alaska Constitution and AS
24.40.010 address legislative immunity. Both provide in part:
"[Legislators] may not be held to answer before any other
tribunal for any statement made in the exercise of [their]
legislative duties."
13 Kerttula v. Abood, 686 P.2d 1197, 1202 (Alaska 1984).
14 Id. (citing Gravel v. United States, 408 U.S. 606, 617
(1972)).
15 Id. (citing Gravel v. United States, 408 U.S. at 617).
16 Breck v. Ulmer, 745 P.2d 66, 70 (Alaska 1987); State v.
Haley, 687 P.2d 305, 319 (Alaska 1984); Kerttula, 686 P.2d at
1202-04; RESTATEMENT (SECOND) OF TORTS 590 (1979) ( "A member .
. . of a State or local legislative body is absolutely privileged
to publish defamatory matter concerning another in the
performance of his legislative functions."). See also
Restatement (Second) of Torts 590 cmt. a (1979) ("The privilege
. . . is not confined to conduct on the floor of the legislative
body. It extends to the work of legislative committees or sub-
committees that are engaged in an investigation or other work
authorized by the legislative body.").
17 Kerttula, 686 P.2d at 1201.
18 Doe v. McMillan, 412 U.S. 306, 313 (1973) (holding that
members of Congress who had included description of children's
behavior and identified children by name in committee report were
immune from liability under federal speech or debate clause).
See also Shultz v. Sundberg, 577 F. Supp. 1491, 1495 (D. Alaska
1984) (applying principle in Doe that congressmen who engage in
legitimate legislative acts will be immune from liability even if
their actions "raise significant state issues").
19 The Whalens also argue that there was no need for
legislative review by the House Finance Committee in March 1996
because the agreement between the state and Ronald Whalen was "A
DONE DEAL." We reject this argument because we hold that review
of the COLD payments and the accompanying settlement was properly
within the committee's legislative duties.
