Anchorage Daily News v. Anchorage School District

MOORE, Justice,

dissenting.

Because I find that the Daily News fails the fourth criterion set out in Murphy, I do not agree with the majority’s holding that the Daily News is a public interest litigant.

The majority summarily concludes that the Daily News’ economic interest in this litigation is “comparatively minor.” On the record presented in this case, I do not see any justification whatsoever for the majority’s conclusion.

The Daily News’ submissions to the superior court fail to substantiate its claim that the commercial benefits of this litigation are minimal. The paper simply asserts that its status as public interest litigant is beyond reasonable dispute. It argues that it would never have brought this suit if it was only interested in financial gain because the costs of litigation outweigh any short-term increase in newsstand sales resulting from the school district story.1

This argument is unpersuasive. A newspaper’s financial well-being depends on its circulation base and the paid advertisements generated by that circulation base, not on the 25 cent cover price. When a newspaper seeks access to information that is being kept from the public, it builds goodwill in the community and gains a competitive advantage. A newspaper with an image as champion of the public’s right to know increases its circulation base and attracts more advertisers in the long-run.2 Plain common sense dictates that this suit will have a direct impact on the paper’s circulation base and future profits. Absent any evidence to the contrary,3 it is impossible to conclude that the Daily News pursued this suit only to further the public interest.4

The superior court properly considered these long-term economic benefits in reaching its decision. It weighed the paper’s commercial interest in its reputation5 and found that the Daily News had a significant commercial motivation in bringing this suit. A trial court’s determination of a litigant’s public interest status will not be overturned unless it is “manifestly unreasonable.” Kenai Lumber Co. v. LeResche, 646 P.2d 215, 222 (Alaska 1982). Thus any party challenging the superior court’s decision in this regard has a heavy burden of persuasion. Western Airlines, Inc. v. Lathrop Co., 535 P.2d 1209, 1217 (Alaska 1975). On appeal, the Daily News has not met its heavy burden of persuasion. The superior court’s determination that the Daily News has a commercial interest in this litigation should be upheld and the paper should be denied public interest status.

In granting the Daily News public interest status, the majority applies the fourth criterion without reflecting on its purpose. The fourth criterion tests whether a liti*406gant has a sufficient private interest in a suit to offset the deterrent effect of the costs of litigation. Kenai Lumber Co., 646 P.2d at 223. In the past, we have been unwilling to award public interest status to litigants who are acting in their private interests and not on behalf of the public. See Mobil Oil Corp. v. Local Boundary Comm’n, 518 P.2d 92, 104 (Alaska 1974). In its analysis, the majority fails to appreciate the fact that the public importance of this litigation is directly tied to its commercial value to the newspaper. Thus the majority’s rote application of the fourth criterion sidesteps the basic question of whether the litigation costs will, in fact, deter the newspaper from bringing similar suits. When the majority observes that “it appears highly unlikely that the Daily News would have brought its suit ‘if the action [had] involved only narrow issues lacking general importance,’ ” it fails to reach the issue of deterrence.

The newspaper’s economic interest in this litigation is not rendered insignificant simply because it is dependent on the public importance of the issues at stake. The Daily News has a significant economic interest in maintaining and increasing its circulation and advertising revenues. Given the record presented in this case, the Daily News has ample economic incentive to bring this suit despite the costs of litigation. Thus, the Daily News fails the fourth criterion and should be denied public interest status.

The Daily News is a profit-making enterprise. The costs of these suits are part of doing business and should not be subsidized by the taxpayer6 as a matter of policy. The majority provides no adequate justification for creating what amounts to a special exception for newspapers (or any other news organization) by insulating their business motives from scrutiny under the fourth criterion. The majority’s analysis guarantees a newspaper public interest status for virtually any suit that a newspaper is likely to bring. This is a Pandora’s box that should not be opened. There are better uses for public funds. The Daily News and other commercial news organizations should not be held to a less rigorous standard than the ordinary litigant.

For the above reasons, I respectfully dissent.

. The Daily News calculates that it would have to sell 18,000 extra newspapers to recoup the costs of litigation.

. This court should take judicial notice of the Daily News’ television advertisements which claim that its circulation greatly exceeds that of its nearest competitor. Clearly the Daily News understands the commercial importance of a wide circulation base.

. The Daily News offers no hard proof on this issue. It merely asserts:

The fact that the news media, acting as surrogates for the public in pursuing access to information, must stay in business to do so and in fact attempt to operate at a profit as other businesses do, does not change the nature of the public-interested pursuit of such records and meetings. No economic interest can reasonably be argued ... that might have motivated the Daily News to proceed as it has below.

. There is no reason to assume that newspapers are different than any other kind of business. Many large businesses routinely engage in public service activities to improve their public image. Often such businesses even run advertisements selling this image to the public. Like any form of advertising, such public service activities are an investment in future profits and a part of doing business.

. The Daily News contends on appeal that repu-tational benefits are non-economic and thus legally irrelevant. This argument is without merit.

. The state (and by extension the taxpayers) will always have to bear the full cost of defending these suits even when the newspaper loses,