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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Legislative Council v. Knowles (10/1/99) sp-5185

Legislative Council v. Knowles (10/1/99) sp-5185

     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.


                              )    Supreme Court Nos. S-8143/8144
          Appellant and       )
          Cross-Appellee,     )    
                              )    Superior Court No.
     v.                       )    1JU-96-1276 CI
TONY KNOWLES, Governor for    )
the STATE OF ALASKA,          )    
                              )    O P I N I O N
          Appellee and        )    
          Cross-Appellant.    )    [No. 5185 - October 1, 1999]

          Appeal from the Superior Court of the State of
Alaska, First Judicial District, Juneau,
                      Larry R. Weeks, Judge.

          Appearances:   Pamela  Finley and James P.
Crawford, Legislative Affairs Agency, Division of Legal and
Research Services, Juneau, for Appellant and Cross-Appellee.  James
L. Baldwin, Assistant Attorney General, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee and Cross-Appellant.

          Before:  Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.

          BRYNER, Justice.

          During a special session, the Alaska legislature overrode
Governor Tony Knowles's veto of a bill that it had passed in
regular session.  The governor sued the Legislative Council,
claiming that the legislature's override vote was untimely and did
not affect his veto.  The superior court agreed, declaring the
override vote invalid and the veto effective.  The Council argues
that the Alaska Constitution barred the governor from filing this
suit and that the superior court thus erred in deciding the
governor's claim on its merits.  We conclude that the Council's
argument has merit.  Though formally filed in the governor's name
against the Council, this suit is in substance an action brought in
the name of the state against the legislature.  Because
article III, section 16 of the Alaska Constitution expressly
forbids such actions, we vacate the judgment and direct the
superior court to dismiss the action.
          On April 26, 1996, during its second regular session, the
Nineteenth Alaska Legislature passed Committee Substitute for
Senate Bill (C.S.S.B.) 162, an act relating to land used for
agricultural purposes. [Fn. 1]  On May 7, after the regular session
expired, the governor called a special session, which convened the
next day.  On May 14 the legislature recessed its special session
until June 3.  Before recessing, it delivered C.S.S.B. 162 to
Governor Knowles for his consideration.  Governor Knowles vetoed
the bill on May 30, transmitting his veto message to the
legislature a day later.  On June 6 the legislature, having resumed
its special session, voted to override the governor's veto. 
          These events set the stage for the present controversy. 
The day after the legislature voted to override his veto, Governor
Knowles, acting in his own name as governor of Alaska, filed a
complaint in superior court alleging that the legislature's vote to
override his veto of C.S.S.B. 162 had been untimely under
article II, section 16 of the Alaska Constitution. [Fn. 2]  The
complaint requested a judgment declaring that the governor's veto
of the bill remained in effect and named as defendants the
Legislative Council and fourteen individual legislators who compose
it. [Fn. 3]  The Council counterclaimed against the governor,
seeking a declaration that the override vote was valid.   
          All parties eventually filed dispositive motions: The
governor moved for summary judgment, the Council cross-moved for
summary judgment, and all of the defendants -- the individually
named legislators and the Council -- moved for dismissal.  
          The superior court granted the individual legislators'
dismissal motions, concluding that the legislators were entitled to
legislative immunity under article II, section 6 of the Alaska
Constitution. [Fn. 4]  But because the court believed that neither
this constitutional grant of legislative immunity nor article III,
section 16 -- which prohibits the governor from suing the
legislature -- barred a suit against the Council, the court denied
the Council's motion to dismiss.
          Moving to the merits raised in the competing motions for
summary judgment, the court ruled in favor of the governor,
declaring that the legislature's override vote was untimely, that
the governor's veto remained in effect, and thus that C.S.S.B. 162
had not been enacted into law. [Fn. 5]
          The Council appeals these rulings; the governor cross-
                    A.   The "Public Interest"Exception to the Mootness Doctrine
                    Applies to the Issue of Whether Article III, Section 16 of
                    the Alaska Constitution Bars the Governor's Suit against
                    the Council.
                    At the outset, we confront the issue of mootness.  In
1997, the year after this controversy arose, the legislature
enacted and the governor signed into law a bill covering
essentially the same subject matter as C.S.S.B. 162. [Fn. 6]  Thus
the question of whether C.S.S.B. 162 was validly enacted is
technically moot.  
          But this court has long recognized a "public interest"
exception to the mootness doctrine. [Fn. 7]  In determining whether
to apply the public interest exception, we consider three factors
designed to identify issues whose importance and ability to evade
review justify an immediate decision, despite technical mootness: 
          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.[ [Fn. 8]]
          The primary constitutional issue presented here -- 
whether article III, section 16 forbids the governor's suit against
the Council -- easily meets the first and third criteria for an
exception.  This issue is certainly capable of repetition.  And it
is also unquestionably an issue of great public importance, for it
goes to the heart of the delicate constitutional balance between
the powers of two coordinate branches of government. [Fn. 9]  
          The second factor's presence is not as obvious.  It is of
course conceivable that the question of whether article III,
section 16 bars the governor from suing the Council over the
timeliness of a veto could arise again and be decided before being
mooted by new legislation.  But the express harm that the
constitution protects against in barring the governor from bringing
actions "in the name of the State . . . against the legislature"
[Fn. 10] occurs when the action is brought, not when it is
          Considering the importance and unique nature of the
protection embodied in article III, section 16, we conclude that
the question of whether this section applies in the circumstances
presented here merits an exception to the mootness doctrine.
                    B.   Article III, Section 16 Bars This Suit by the Governor
                    against the Council. [Fn. 11]
          Section 1 of article III of the Alaska Constitution vests
the executive power of the state in the governor. [Fn. 12]  Article
III, section 16 gives the governor broad power to sue in the name
of the state but at the same time bars the governor from turning
this power against the legislature: 
               The governor shall be responsible for the
faithful execution of the laws.  He may, by appropriate court
action or proceeding brought in the name of the State, enforce
compliance with any constitutional or legislative mandate, or
restrain violation of any constitutional or legislative power,
duty, or right by any officer, department, or agency of the State
or any of its political subdivisions.  This authority shall not be
construed to authorize any action or proceeding against the
          In concluding that this provision did not forbid the
governor to sue the Council, the superior court reasoned that
"[p]laintiff brought this lawsuit in the name of the Governor as
head of the executive branch of state government and not in the
name of the State of Alaska"and that "[a] suit against the
Legislative Council, a permanent interim committee with separate
legal existence under Article II, sec. 11 of the Alaska
is not a suit against the Legislature."
          The Council disputes both bases of the superior court's
ruling, arguing that the governor should not be allowed to evade
article III, section 16's restrictions by simply altering the form
of his complaint.  The Council asserts that although the governor
has sued in his own name as governor of Alaska, this is in
substance an action brought in the name of the state.  Similarly,
it asserts that by opting to proceed against a functional
equivalent of the legislature -- the Council -- the governor has
effectively sued the legislature itself.  
          The governor responds that article III, section 16 "was
not intended to prevent the governor from protecting his power from
usurpation by the legislature." In the governor's view, "the Court
must have jurisdiction to determine the rights of the coordinate
branches of state government." Insisting that the Council reads
section 16's language barring actions against the legislature too
broadly, the governor urges us to hold the constitutional bar
inapplicable here because this suit "was brought in the Governor's
capacity as head of the executive branch of state government,""did
not request [that] the legislature . . . be enjoined or compelled
to do anything,"and "was brought not against the legislature but
its agent the Council."
          We find the Council's arguments persuasive. 
               1.   Although filed by Tony Knowles, as "Governor
for the State of Alaska,"this suit is an action brought in the
name of the state.
          This suit does not confine itself to internal matters
concerning only the governor, the governor's office, or the
executive branch of government.  Rather, as we have indicated above
in Part II.A., it raises important constitutional questions of the
allocation of powers among coordinate branches of government. 
Because the suit tests the basic constitutional structure of
Alaska's tripartite system of government, it necessarily involves
a matter of general public importance -- one that transcends the
executive branch's parochial interests and implicates interests
common to all Alaska citizens.  And although article III, section
16 authorizes the governor to sue in the name of the state, it
confers no express power to sue in any narrower capacity.  No other
provision in article III expressly empowers the governor to raise
issues of general public importance by suing in the name of the
governor's office or of the executive branch.  By any realistic
measure, this suit involves the interests of the state as a whole. 
          Moreover, the governor asks for a ruling "that the
Nineteenth Alaska Legislature . . . did not have authority under
art. II, sec. 16 of the Alaska Constitution to consider a vote to
override CSSB 162(FIN),""that CSSB 162(FIN) cannot become law
until the legislature properly exercises the veto override
provisions of art. II, sec. 16 of the Alaska Constitution,"and
"that Governor Knowles'[s] veto of CSSB 162(FIN) remains in
effect." By making these requests, the governor plainly seeks to
enforce compliance with a constitutional mandate and to restrain
violation of a constitutional power.
          By so concluding, we necessarily reject the governor's
suggestion that declaratory judgment actions are categorically
exempt from the strictures of article III, section 16 because such
actions merely seek judgments declaring the law without directly
enforcing compliance or enjoining or compelling conduct.  To
determine whether an action or proceeding is brought to enforce
compliance with a constitutional provision or restrain violation of
a constitutional power in violation of article III, section 16, we
must consider the practical goal of the action rather than the
procedural path it employs to attain that goal. 
          Using substance rather than form as a measure of
constitutional compliance, we hold this suit to be an "action or
proceeding brought in the name of the State [to] enforce compliance
with . . . [a] constitutional . . . mandate, or restrain violation
of [a] constitutional . . . power."[Fn. 13] 
               2.   Although filed against the Council, this suit
is an action against the legislature.

          The remaining question is whether by naming the Council
and its individual legislator-members as defendants, the governor
evades section 16's third sentence, which prohibits him from
bringing actions in the name of the state "against the
legislature." Again, the question pits form against substance, and
again, we conclude that substance must prevail.
          The Alaska Constitution establishes the Council to "meet
between sessions"and "perform duties . . . as provided by the
legislature."[Fn. 14]  Under law, the Council comprises
legislators from both houses, [Fn. 15] who exercise a broad range
of legislative powers and serve as the legislature's embodiment
between sessions. [Fn. 16]  The Council's members also supervise a
permanent staff, headed by an executive director, [Fn. 17] that
performs an array of administrative services for the legislative
branch and the general public. [Fn. 18]
          The governor asserts that this suit escapes section 16's
prohibition because it names the Council not in its interim
legislative capacity but only in its service-agency capacity. [Fn.
19]  But the governor's pleadings belie this assertion.  Neither
the original nor the amended complaint gives any indication that
the governor named the Council as a defendant in its limited
capacity as a service agency.  Both complaints name the Council as
a defendant only in its capacity as "a permanent interim committee
of the legislature." And both also name individual legislators
only in their general capacity as legislators and Council members. 
          More significant is that the complaints assert no
particular service-related acts or functions as a basis for
proceeding against the Council or its individual legislator-
members.  By asserting that "[t]he legislature's vote to override
the governor's veto of CSSB 162(FIN) is in violation of art. II,
sec. 16 of the Alaska Constitution,"the complaints aim beyond the
Council, targeting an act of the legislature that is purely and
quintessentially legislative.
          An action of this kind falls squarely within the
originally intended scope of section 16's prohibition.  Delegate
Victor Rivers, Chairman of the Constitutional Convention's
Committee on the Executive Branch, described the relationship
between the broad grant of authority given to the governor under
the second sentence of section 16 and the restriction of that
authority set out in the section's third sentence.  He explained
that despite the governor's 
          power by appropriate actions or proceedings in
the court, brought in the name of the state[] to enforce compliance
with any constitution[al] or legislative mandate[,] . . . [the
governor] has no authority . . . to act in that manner in any
proceeding against the legislature.  The legislature is the supreme
elected body and as such [the governor] is answerable to [it] and
to [its] interpretations and handling of matters of law.[ [Fn. 20]] 
          By directing against the legislature's interim alter ego
an action questioning the propriety of a purely legislative act,
the governor effectively seeks to hold the legislature itself
"answerable"to him for its "interpretations and handling of
matters of law."[Fn. 21]  The substance of this suit thus
infringes upon the legislature's constitutional domain in precisely
the manner that the Constitution's drafters intended to prohibit. 

          We readily acknowledge the legitimacy of the governor's
expressed interest in preserving the broad powers of litigation
"that, in essence, makes him the strong executive that the framers
intended." But in our view, the governor could have asserted these
powers readily and effectively without directing a suit across the
clear constitutional line that separates legislative and executive
powers. [Fn. 22]  We would ignore the constitution's intended
meaning if we held, in circumstances like these, that the governor
could successfully evade section 16's restrictions by suing the
Council instead of the legislature. 
          We therefore hold that this suit is an action brought "in
the name of the State"and "against the legislature." Because
article III, section 16 forbids such actions, we VACATE the
superior court's order declaring C.S.S.B. 162 invalid and REMAND
for entry of an order of dismissal. [Fn. 23]


Footnote 1:

     C.S.S.B. 162(FIN), 19th Leg. 2d Sess. (1996).  The act was
printed as Ch. 1, FSSLA 1996.

Footnote 2:

     Article II, section 16 of the Alaska Constitution, provides: 

               Upon receipt of a veto message during a
regular session of the legislature, the legislature shall meet
immediately in joint session and reconsider passage of the vetoed
bill or item.  Bills to raise revenue and appropriation bills or
items, although vetoed, become law by affirmative vote of
three-fourths of the membership of the legislature.  Other vetoed
bills become law by affirmative vote of two-thirds of the
membership of the legislature.  Bills vetoed after adjournment of
the first regular session of the legislature shall be reconsidered
by the legislature sitting as one body no later than the fifth day
of the next regular or special session of that legislature.  Bills
vetoed after adjournment of the second regular session shall be
reconsidered by the legislature sitting as one body no later than
the fifth day of a special session of that legislature, if one is
called.  The vote on reconsideration of a vetoed bill shall be
entered on the journals of both houses. 

Footnote 3:

     The Legislative Council is a permanent interim committee of
the Alaska Legislature created under article II, section 11 of the
Alaska Constitution and comprises fourteen legislators.  See Alaska
Const. art. II, sec. 11; AS 24.20.020.

Footnote 4:

     Article II, section 6 of the Alaska Constitution provides:

          Legislators may not be held to answer before
any other tribunal for any statement made in the exercise of their
legislative duties while the legislature is in session.  Members
attending to, going to, or returning from legislative sessions are
not subject to civil process and are privileged from arrest except
for felony or breach of the peace. 

Footnote 5:

     Specifically, the court, construing the "fifth day"clause of
article II, section 16 of the Alaska Constitution (set out above in
footnote 2), ruled that when the governor delivers a vetoed bill to
the legislature after a first special session convenes, the
legislature can override the veto within five days of delivery --
even if the deadline falls after the fifth day of the first special
session.  But the court also ruled that the five-day deadline is
not tolled by a recess or adjournment that does not terminate the
special session.  Because the legislature had not voted by the
fifth day after delivery of the vetoed bill -- June 5, 1996 -- the
court concluded that its override vote was untimely and that
C.S.S.B. 162 had not been enacted into law.  Our disposition of
this appeal makes it unnecessary to consider the superior court's
analysis or the parties' arguments concerning the proper
interpretation of article II, section 16.   

Footnote 6:

     See Ch. 20, SLA 1997. 

Footnote 7:

     See Department of Health & Soc. Servs. v. Alaska State Hosp.
& Nursing Home Ass'n, 856 P.2d 755, 766 (Alaska 1993); Doe v.
State, 487 P.2d 47, 53 (Alaska 1971). 

Footnote 8:

     Department of Health & Soc. Servs., 856 P.2d at 766. 

Footnote 9:

     See Thomas v. Rosen, 569 P.2d 793, 795 (Alaska 1977) (granting
review under the public interest exception of whether the
governor's exercise of a line-item veto was constitutional,
commenting that it "pits the political branches of our state
government in a fundamental separation of powers confrontation").

Footnote 10:

     Alaska Const. art. III, sec. 16. 

Footnote 11:

     We review constitutional issues independently, giving no
deference to the trial court's decision.  See Hickel v. Cowper, 874
P.2d 922, 926 (Alaska 1994).  In construing a constitutional
provision, we must give it a "reasonable and practical
interpretation in accordance with common sense"and consonant with
"the plain meaning and purpose of the provision and the intent of
the framers." ARCO Alaska, Inc. v. State, 824 P.2d 708, 710
(Alaska 1992).

Footnote 12:

     Article III, section 1 of the Alaska Constitution provides:
"The executive power of the State is vested in the governor."

Footnote 13:

     Alaska Const. art. III, sec. 16.

Footnote 14:

     Alaska Const. art. II, sec. 11.

Footnote 15:

     See AS 24.20.020.

Footnote 16:

     See AS 24.20.060.

Footnote 17:

     See AS 24.20.050.

Footnote 18:

     See AS 24.20.060(4).

Footnote 19:

     See AS 24.20.010 ("The Alaska Legislative Council is
established as a permanent interim committee and service agency of
the legislature.").

Footnote 20:

     3 Proceedings of the Alaska Constitutional Convention 1986
(January 13, 1956).

Footnote 21:


Footnote 22:

     For example, as the Council observes in its briefs, "[T]he
Governor could have sued the commissioner responsible for enforcing
the law, as was done in State ex rel Hammond v. Allen, 625 P.2d 844
(Alaska 1981) . . . ."

Footnote 23:

     Our conclusion that under the circumstances presented in this
case a suit against the Council is equivalent to a suit against the
legislature also compels dismissal of the suit as to individual
legislators named in their capacity as Council members.  We do not
understand the suit to name these Council members as parties solely
in their capacity as legislators.  Accordingly, we need not
consider whether dismissal of Council members would independently
be required under article II, section 6, which provides legislators
with immunity in performing their legislative duties:  "Legislators
may not be held to answer before any other tribunal for any
statement made in the exercise of their legislative duties while
the legislature is in session."

          Our disposition also makes it unnecessary to address the
timing issues raised by the governor under article II, section 16
of the Alaska Constitution.  Although the timing issues that the
Council affirmatively raised before the superior court in its
counterclaim and that it now asserts before this court on cross-
appeal might not be barred by article III, section 16, the
governor's declaratory judgment action obviously prompted the
Council's assertion of these issues; at oral argument, the Council
consented to our treatment of its affirmatively raised timing
arguments as a contingent cross-appeal.