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Family of deceased lawmaker battles Legislature for access to documents

  • Author: Nathaniel Herz
  • Updated: September 28, 2016
  • Published February 22, 2016

JUNEAU — Family members of the late Rep. Max Gruenberg say the Legislature is preventing them from sorting through Gruenberg's electronic files following his sudden death earlier this month.

By law and tradition, legislators keep all documents and digital files connected to their time in office if they retire or if they're voted out of office. But in a novel application of a legal doctrine called legislative immunity, the Legislature's attorney has advised the House leadership to restrict the family's access to the former lawmaker's files because Gruenberg didn't expressly grant permission to view them before he died.

The records aren't totally sealed off — two of Gruenberg's aides are being allowed to review them one by one and ask for their release by the attorney, Doug Gardner. But Gruenberg's family says it's facing a "blockade" that's hindering them from properly remembering the former Anchorage Democrat.

They'll be consulting with a lawyer about what to do next, said Gruenberg's widow, Kayla Epstein.

"This is his personal property. We, as the family, are the ones who should be deciding what to do with it," said Bruce Gruenberg, one of Gruenberg's sons, who flew to Juneau from Denver after his father's death. "The people that are doing this need to really think about the type of actions that they're taking, and the type of toll that they're putting on his family while they are trying to grieve and remember him for the type of person that he was."

The dispute is raising new questions about the Legislature's records-keeping practices that speak to the essence of Gruenberg himself, said Ted Madsen, Gruenberg's former chief of staff. Gruenberg was a family attorney known for delving deep into legal minutiae, and his colleagues last week renamed the House Judiciary Committee room in his honor.

"The one attorney who could answer this better than anybody else is gone," Madsen said.

Gruenberg, a longtime Democratic lawmaker who represented an East Anchorage district, died in Juneau on Feb. 14 at age 72. His family wants two of Gruenberg's former aides, Madsen and Nicoli Bailey, to have full access to Gruenberg's files so that they can preserve both personal and work-related material.

Instead, electronic access was cut off suddenly last week, even temporarily blocking Bailey from retrieving an obituary she'd been working on.

Typically, legislators get to keep all their personal and work-related documents when they leave office alive. That's true in Congress too, where Ted Stevens got to keep decades worth of material when he lost re-election in 2008.

On Thursday, Epstein wrote to the Legislature's nonpartisan support agency asking that Madsen and Bailey be given access to Gruenberg's hard-copy and electronic files.

The agency's director, Pam Varni, initially wrote back the same day to say the agency would help, since it had two memos previously signed by Gruenberg giving his aides authority to review and sign documents on his behalf.

But a few hours later, Varni sent another letter saying that Gruenberg's records remain subject to "legislative immunity" even after his death. She referred to a legal memo that said records could only be released on a case-by-case basis after legal review.

Legislative immunity derives from the part of the Alaska Constitution describing the Legislature and is similar to the "Speech or Debate clause" in the U.S. Constitution. In both cases, legislators are exempt from prosecution or lawsuit for their official activities, and can't be arrested except for felonies during sessions.

But in either constitution, there's no reference to a legislator carrying immunity into the grave.

Gardner's memo says that absent a waiver from Gruenberg, legislative immunity continues to protect his files "from any sort of compelled disclosure by any process."

The memo referred to a 2012 opinion written by Gardner after Rep. Carl Gatto died in office, which cites the Alaska Constitution's legislative immunity clause.

The provision, the memo says, protects lawmakers from statements made while doing their official duties — and it holds even after a legislator leaves office, or dies, Gardner wrote.

The 2012 memo came after a request that Gatto's replacement, Shelley Hughes, be given access to the late legislator's computer files. She was blocked by Gardner, however, based on the immunity clause.

In an interview Monday, Hughes said she had wanted to use Gatto's email lists to communicate with constituents, but instead had to start on "ground zero."

"I can feel for whoever comes in to that seat," Hughes said. "It's kind of funny because when someone retires, or someone decides, 'I'm done with this,' if it wasn't a death involved, they could choose to pass those on."

Now, after the legal review, Gruenberg's family will only get access to records that lawyers deem to be not confidential and subject to the legislative immunity clause.

The arrangement has frustrated Epstein, Gruenberg's widow.

"We think he has a legacy. We think that someone, at some point, may want to write a book about him," said Epstein, in an interview in Gruenberg's office, where she was surrounded by family members.

Anchorage Rep. Chris Tuck, the leader of Gruenberg's House minority Democratic caucus, said the 2012 memo outlining the opinion on immunity should have been released when it was issued. That way, Gruenberg could have waived his immunity to allow his family and staff to access his records after his death.

"I think a lot of legislators would be upset if they knew they locked down these records," Tuck said. "They should have tried to fix that back then. Carl Gatto passed in 2012 — Doug Gardner should have let the rest of us know."

In an interview Monday, Rep. Craig Johnson, an Anchorage Republican and chair of the House Rules Committee, said he was acting on Gardner's advice in restricting access to Gruenberg's files.

It's rare for lawmakers to die in office, and it's not something that anyone wants to plan for, Johnson said. But he added that in the future, legislators will probably be asked upon assuming office whether they want to waive their immunity in the event of their death.

"I hate to make a policy on this kind of stuff," Johnson said. "But I think it's time."

Gardner's rationale for posthumously shielding Gruenberg's documents is an unusual, if not unprecedented argument, said Steven Huefner, a law professor at Ohio State University who's studied legislative immunity.

Typically, immunity is used to protect lawmakers from being intimidated or harassed by the executive branch, or by the courts, for legislative actions.

It's possible, Huefner said, that there could be a basis for applying it after death, to the extent that lawmakers might be afraid to express themselves freely to staff if they knew that their "private musings" could ultimately be made public. But he also acknowledged that there's a distinction when it's a lawmaker's family, not a different, hostile branch of government, that's seeking access to documents.

"I think it's probably a pretty novel kind of question," Huefner said.

Another expert said that keeping a legislator's files from his family was not what the framers of Alaska's Constitution had in mind when they inserted the legislative immunity provision.

Vic Fischer, a former state senator and a delegate to Alaska's constitutional convention, called the immunity clause a "standard provision" to protect lawmakers from "claims that interfere with their exercise of legislative duties."

"I don't see where the immunity has a damn thing to do with the papers of a legislator," Fischer said in a phone interview Monday. "I would say that his papers belong to his widow, and that's all there is to it."

Gardner, the Legislature's attorney, declined to answer specific questions about the fight over Gruenberg's papers. But he said in a brief phone interview Monday that he was acting in the interest of the Legislature, and "following the Constitution the way I believe it reads."

"I'm going to take steps to protect that immunity until a court tells us otherwise," he said.

The Legislature currently has no formal policy on preserving and archiving lawmakers' records, said Varni, the legislative support agency's director. They're deemed to be personal property, and upon leaving office, it's up to legislators to decide whether to take their files with them, or turn them over to their successor, she said.

Hughes, who took over for Gatto after his death in 2012, said it's time for the Legislature to develop clearer guidelines.

"Probably, we're overdue in addressing it," she said.

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