Horowitz v. Alaska Bar Ass'n

DIMOND, Senior Justice,

with whom RABINOWITZ, Chief Justice, joins, dissenting in part.

AS 08.08.100 provides:
Administrative Procedure Act The by-laws and regulations adopted by the board or the members of the Alaska Bar under this chapter are not subject to the Administrative Procedure Act (AS 44.62).

The effect of the majority opinion is to hold that this statute plainly 1 exempts from the Administrative Procedure Act not only the Alaska Bar Association’s method of adopting bylaws and regulations, but also any act of the Alaska Bar which happens to be authorized by bylaw or regulation, including violation of the open meeting act, AS 44.62.310. With this, I disagree.

*43The main impact2 of the Act on state agency regulations is to provide a detailed and comprehensive procedure for their adoption, promulgation, amendment and repeal,3 and for judicial4 and legislative5 review. If the bylaws6 and regulations of the Alaska Bar were subject to the Act, they would be subject to the procedural requirements of the Act with respect to their adoption and other handling, because that is the principal relevance of the Act to such bylaws and regulations. The effect of AS 08.08.100 making these bylaws and regulations “not subject to the Administrative Procedure Act (AS 44.62)” (emphasis added), is that they are not subject to the procedural aspects of the Act, i. e., their method of adoption is not governed by the Administrative Procedure Act, but rather by action of the Alaska Bar Association or its Board of Governors under the Alaska Integrated Bar Act.7

The majority errs, I believe, in concluding from the fact the Alaska Bar’s bylaws and regulations are exempt from the Administrative Procedure Act that the Alaska Bar, as an agency, is exempt from the Administrative Procedure Act, including its open meeting requirements. AS 44.62.310 — .312, the open meeting statute, is a portion of the Administrative Procedure Act. It does not deal at all with the procedural aspects of the adoption of regulations, and purports by its terms to encompass the activities of legislative-created agencies such as the Alaska Bar Association and its Board of Governors. It follows that the Association and Board are subject to the Administrative Procedure Act to this extent. Article 6 of Title 44, chapter 62 (AS 44.62.310 — .312), requires meetings of a broad range of governmental agencies of the state and its political subdivisions to be open to the public. AS 44.62.-310 provides in part:

Agency meetings public, (a) All meetings of a legislative body, of a board of regents, or of an administrative body, board, commission, committee, subcommittee, authority, council, agency, or other organization, including subordinate units of the above groups, of the state or any of its political subdivisions, including but not limited to municipalities, boroughs, school boards, and all other boards, agencies, assemblies, councils, departments, divisions, bureaus, commissions or organizations, advisory or otherwise, of the state or local government supported in whole or in part by public money or authorized to spend public money, are open to the public except' as otherwise provided by this section.

This comprehensive statute includes meetings of the Board of Governors of the Alaska Bar Association not exempted under AS 44.62.310(c) and 44.62.310(d).8 This is so *44because the legislature created the Alaska Bar Association and its Board of Governors, and expressly provided that the Association was created as an “instrumentality of the state.” AS 08.08.010. Furthermore, the Alaska Bar is “supported ... in part by public money or authorized to spend public money” as that term is used in defining the scope of the open meeting statute, AS 44.62.310(a). First, the Alaska Court System provides a portion of the Alaska Bar’s income for various purposes. The Alaska Court System in turn is supported by legislative appropriations. Second, the Board is empowered by the legislature to “fix the annual membership fee for active and inactive members,” AS 08.08.080(b)(4), and to adopt reasonable provisions “concerning the collection, deposit, and disbursement of membership and admission fees, penalties, and all other funds.” AS 08.08.-080(a)(4). There can be little question that the mandatory annual dues paid to the Association by its members to support the Association constitute “public money” as that term is used in AS 44.62.310(a). As was stated by a Louisiana appellate court,

[RJevenues raised through exercise of such governmental powers by an agency created by the legislature and pursuant to legislative authorization constitute state funds no less than revenues deposited in the State Treasury .

State Licensing Board of Contractors v. State Civil Service Commission, 110 So.2d 847, 851 (La.App.1959), aff’d, 240 La. 331, 123 So.2d 76 (1960).

I conclude that the public meeting portion of the Administrative Procedure Act is applicable to the Board of Governors of the Alaska Bar Association.

The Alaska Bar Association admits that its Hawaii meeting did not comply with the open meeting statute in a number of respects. These are listed in note 3 of the court’s opinion. It is my opinion that there is another way in which the meeting did not comply with the requirements of the statute. That is the fact that the meeting was held in Hawaii and not in Alaska. I believe it is fair to presume that when the Alaska legislature required meetings to be “open to the public,” it contemplated that the “public” should consist principally of people residing in Alaska. It would follow from this that Alaska residents should not be expected to travel outside the state in order to take advantage of their right to be present at a meeting of an Alaska governmental agency. In my opinion, the public meeting statute was violated by the fact that the Board of Governors met in Hawaii and not in Alaska.

With respect to the cross-appeal regarding denial of attorney’s fees to the Alaska Bar, I concur in the court’s holding.

. The majority relies on Poulin v. Zartman, 542 P.2d 251, 270 (Alaska 1975), for the proposition that a statute whose meaning is plain is not subject to judicial construction. But in Poulin the court also said that the plain meaning rule applies if the legislative language is “ ‘so unambiguous as to leave no doubt as to the meaning or scope of the result dictated.’ ” 542 P.2d at 270. I do not find any plain legislative intent to exempt the Alaska Bar from the open meeting act, AS 44.62.310-.312.

. There is a substantive, rather than merely procedural, aspect of the Act as it relates to regulations. AS 44.62.030 provides:

Consistency between regulation and statute. If, by express or implied terms of a statute, a state agency has authority to adopt regulations to implement, interpret, make specific or otherwise carry out the provisions of the statute, no regulation adopted is valid or effective unless consistent with the statute and reasonably necessary to carry out the purpose of the statute.

However, this section has no relevance to the controversy in this case.

. AS 44.62.040 — .290.

. AS 44.62.300.

. AS 44.62.320.

. I would hold that “bylaws” fall generally in the category of regulations, since they are “[Regulations . . [or] rules adopted by an association . . . for its government.” Black’s Law Dictionary at 182 (5th ed. 1979).

. AS 08.08.080(b)(2) provides in part that the Board of Governors of the Alaska Bar Association may “adopt reasonable bylaws and regulations consistent with the Alaska Bar Rules.” AS 08.08.090 provides:

Power of the bar to make or change bylaws and regulations. Any bylaw or regulation adopted by the Board of Governors may be modified or rescinded, or a new bylaw or regulation may be adopted, by a vote of the active members of the association under bylaws and regulations to be prescribed by the Board of Governors.

. AS 44.62.310(c) provides:

The following excepted subjects may be discussed in an executive session:
*44(1) matters, the immediate knowledge of which would clearly have an adverse effect upon the finances of the government unit;
(2) subjects that tend to prejudice the reputation and character of any person, provided the person may request a public discussion;
(3) matters which by law, municipal charter, or ordinance are required to be confidential.

AS 44.62.310(d) provides:

This section does not apply to

(1) judicial or quasi-judicial bodies when holding a meeting solely to make a decision in an adjudicatory proceeding;
(2) juries;
(3) parole or pardon boards;
(4) meetings of a hospital medical staff; or
(5) meetings of the governing body or any committee of a hospital when holding a meeting solely to act upon matters of professional qualifications, privileges or discipline.