Hayes v. Charney

RABINO WITZ, Justice,

with whom COMPTON, Justice, joins, dissenting.

I dissent from the court’s refusal to reach the merits of appellant’s claim that the Legislative Council violated the Open Meetings Act by failing to provide reasonable notice for a January 1983 meeting at which the council awarded a contract to film the 1983 legislative session. In my view the public interest exception to the mootness doctrine is applicable here for the following reasons:

Accepting the court’s position that the public interest exception involves three main factors I first address the question of whether the issue is so important to the public interest as to justify overriding the mootness doctrine. In Alaska Community Colleges’ Federation of Teachers, Local 2404 v. University of Alaska, 677 P.2d 886, 891 (Alaska 1984) we noted that AS 44.62.-312 made it clear that section 312 of the OMA exists primarily to advance the interests of the people of Alaska. There we further observed that when the OMA is breached it is the “people’s right to be informed” which sustains injury.1

*836Given the foregoing purposes of Alaska’s Open Meeting Act, I am of the view that invocation of a mootness bar is particularly inapplicable in this case. Public disclosure of the nature and circumstances of an OMA violation is an important component of the remedy available under the Act.2 In part, the philosophy underlying Alaska’s OMA is that publicity regarding malfunctioning of government will have a salutary effect upon the behavior of government officials, making them more responsive to public concerns. It follows that the public has an interest in knowing whether the council failed to provide adequate notice of its January 4, 1983, meeting. In turn this court, in this appeal, should determine whether the notice given by the council was in fact reasonable under the OMA.3

. Elaborating on this theme we further said:

Open decision-making is regarded as an essential aspect of the democratic process. It is believed that public exposure deters official misconduct, makes government more responsive to its constituency, allows for greater *836public provision of information to the decision-maker, creates greater public acceptance of government action, and promotes accurate reporting of governmental processes.

Alaska Community Colleges' Federation of Teachers, Local 2404 v. University of Alaska, 677 P.2d 886, 891 (Alaska 1984).

. Id. at 677 P.2d at 889.

AS 44.62.312(5) provides that “the people's right to remain informed shall be protected."

. I think it is clear that the issue in this case is capable of repetition and that application of a mootness bar will frustrate review of an important question under Alaska’s Open Meeting Act. See Doe v. State, 487 P.2d 47, 53 (Alaska 1971) (“[W]here the matter is one of grave public concern and is recurrent but is capable of evading review, we have undertaken review even though the question may be technically moot.”)