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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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,


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]
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.

           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.


           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


           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.


     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


          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


           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


            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



           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
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
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
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
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.