From: mario@aklawmlh.com To: Cc: meorey?brenalamcom Subject: RE: Alaskans for Open Meetings, Inc.. et al., v. Anchorage Assembly, at al. Date: 12:49:FILED in the Trial Courts LAW OFFICE OF MARIO L. BIRD State OfAlaska Third District Mario L. Bird ABA #121 1033 PO Box 241143 NOV 0 2 2020 Anchorage. AK. 99524 T: {907) 279-2473 Clerk of the Trial Courts F: (907) 279-2473 BY [)9qu E: mario@aklawmlb.com. meorevtgijbrenalaw.cOm IN THE SUPERIOR COURT FOR THE STATE OF ALASKA THIRD JUDICLAL DISTRICT AT ANCHORAGE ALASKANS FOR OPEN MEETINGS, INC. and MICHELE DEERING, Plaintiffs, vs. THE ANCHORAGE MUNICIPAL ASSEMBLY: FELIX RIVERA in his individual and his of?cial capacity as Assembly Chair; ETHAN BERKOWITZ, in his individual and of?cial capacity as Mayor of Anchorage. and the .. pm MUNICIPALITY OF ANCHORAGE, Case N04 COMPLAINT FOR DECLARATORY Defendants AND INJUNCTIVE RELIEF INTRODUCTION The Alaska Open Meetings Act (AS 44.62.310 - 312), State Municipal Statutes (AS 29.20.020) and Municipal code (AMC 17.05) all guarantee that the public may attend government meetings in-person. When the government breaks the law, the statute provides a remedy: voiding government action transacted in violation of the Open Meetings law. AS ALASKANS FOR OPEN MEETINGS el al. v. ANCHORAGE ASSEMBLY- or al., Cl COWLANT FOR DECLARATORY AND INJUNCTIVE RELIEF - of 12 From July 23, 2020 to August 31, 2020, per Assembly Chair Felix Rivera, the Anchorage Assembly secluded themselves in Assembly Chambers, locked the doors, and denied in-person access to the public during their regular and special meetings. In doing so, the Assembly and Rivera also restricted Plaintiffs? freedoms of speech, petition, and peaceable assembly under the federal and state constitutions. Though the purported reason was the ?fteen (15) person limit dictated by Mayor Berkowitz? Emergency Order 15 and a rise in cases, the Assembly allowed in-person witnesses in favor of their preferred agenda, as well as selected members of the press and security, which brought the total number of persons in Assembly chambers over 15. The defendants' actions were flagrant, given the Assembly?s maskless behavior with non- household members in close quarters when off?camera, its rejection of a proposed ordinance which sought to permit one member of the public at a time, and its rejection of the policy enumerated at A3 44.613 12(a). Because defendants? conduct has caused and will cause irreparable harm, this suit seeks an injunction to stop the Assembly from locking out the public. To the extent that EO-IS or its successor Emergency Orders may obtrude upon plaintiffs? constitutional rights, plaintiffs also seek an order declaring to be unconstitutional on its face and as-applied by the Assembly and the Municipality of Anchorage. Last, plaintiffs ask this court to void all Assembly and Municipal business transacted in violation of the Open Meetings Act during the WEEK By doing so, this court will ensure that the Assembly and Municipality lead by example and follow the law. ALASKANS FOR OPEN MEETINGS. cl al.. v. ANCHORAGE ASSEMBLY. cl. al.. BAN-ZD- Cl COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 2 of 12 ALASKANS FOR. OPEN MEETINGS. cl al.. v. ANCHORAGE ASSEMBLY. et - BAN-ZD- CI GENERAL ALLEGATIONS I. PARTIES. Plaintiff ALASKANS FOR OPEN MEETINGS is a not-for?profit corporation formed under the laws of the State of Alaska with its principal place oil business in Anchorage, Alaska. mission is to promote the social welfare and the common good of the people of Alaska and their right to participate in open public meetings, especially those legal protections afforded by the First Amendment to the US. Constitution, the Alaska Const. Art. I, s. 2, Art. I, s. 6, and Alaska's Open Meetings Act. AOM sues on its own behalf and on behalf of its members. AOM has no economic incentive to bring this action and is a public interest litigant. 1.2 Plaintiff MICHELE DEERJNG is a natural person and an Alaska citizen residing within the Municipality of Anchorage, Alaska. Mrs. Deering sues on her behalf as someone who was denied constitutional rights of petition, peaceable assembly, and speech. She has no economic incentive to bring this action and is a public interest litigant. 1.3 Defendant ASSEMBLY OF THE MUNICIPALITY OF ANCHORAGE is an elected municipal body with lawmaking powers. 1.4 Defendant FELIX RIVERA is a natural person, an elected member of the Anchorage Assembly, and the Chair of the ASSEMBLY for all relevant times herein. Mr. Rivera is sued in his individual capacity as acting unconstitutionall}r as a public COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 3 of 12 1-.) of?cial under color of law; he is also sued in his of?cial capacity under the Open Meetings Act. 1.5 Defendant BERKOWITZ is a natural person, and the elected Mayor of the Municipality of Anchorage for all relevant times herein. Mr. Berkowitz is sued in his individual capacity as acting unconstitutionally as a public of?cial under color of law; he is also sued in his of?cial capacity under the Open Meetings Act. 1.6 Defendant MUNICIPALITY OF ANCHORAGE is a municipal government with a Mayor and certain enforcement powers. II. JURISDICTION AND VENUE. 2.1 This Court has jurisdiction over the subject matter of this action pursuant to AS 22.10.0120. 2.2 Venue is proper in the Third Judicial District pursuant to ALASKA R. CIV. PRO. as the actions and claims in controversy arose therein. FACTS. 3.1 Throughout July 2020, defendant ANCHORAGE ASSEMBLY considered controversial legislation, including A0 2020-65 (gender identity conversion therapy ban), AO 2020-66 (regarding the use of federal CARES act monies and the purchase of certain buildings for homeless persons), AO 2020-79 (equity officer), and A0 2020-80 (use of police force). Prolonged public testimony, especially over AO 2020-66, followed in Assembly chambers. ALASKANS FOR OPEN MEETINGS- et al. v. ANCHORAGE ASSEMBLY el 31.. - CI COMPLAINT FOR DECLARATORY AND INIUNCTIVE RELIEF 4 of12 IsJuly 28, 2020, defendant ANCHORAGE ASSEMBLY, through its chair, FELIX RIVERA, closed Assembly chambers to the public, citing a ?surge? in COVID-19 cases. 3.3 On July 31, 2020, defendant MUNICIPALITY OF ANCHORAGE, through its Mayor, Ethan Berkowitz, promulgated its fifteenth Emergency Proclamation, WEEK stating in pertinent part that ?[a]ll indoor gatherings with more than 15 people are prohibited this includes business, cultural, political and religious gatherings. . . On August 3, 2020, the WEEK went into effect. 3.4 On August 11, 2020, defendant ASSEMBLY held its regular meeting at Assembly Chambers in the Loussac Library in Anchorage, Alaska. It announced beforehand that the public would be excluded from Assembly Chambers, and that any and all public testimony would be by email, letter, or live telephone. It then restricted public testimony by locking exterior doors and refusing admission to members of the public, including plaintiffs. ALASKANS FOR OPEN MEETINGS. ct v. ANCHORAGE ASSEMBLY. ct nl.. - 3AN-20- Cl COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 5 of 12 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 6 of 12 ALASKANS FOR OPEN MEETINGS- ct 1r- ANCHORAGE ASSEMBLY. cl: - BAN-20hymn?. ..- Having excluded members of the public, including plaintiffs and hundreds of other citizens who demanded entry, defendant ASSEMBLY then passed AO 2020-66, authorizing the purchase of four (4) buildings. Defendant ASSEMBLY declined to pass a resolution (AR-2020-296) that would have honored Alaska's Open Meetings Act and AMC 17.05. 3.5 On August 25, 2020, defendant ASSEMBLY again held its regular meeting at Assembly Chambers, and considered more controversial legislation, including AO 2020-65, 2020?79, and 2020-30. Again, it announced beforehand that the public would be excluded from Assembly Chambers, and that any and all public testimony would be by email, letter, or live telephone. Again, it restricted public testimony and attendance by locking exterior doors and refusing admission to members of the public, including plaintiff MICHELE DEERING. Plaintiff MICHELE DEERING, along with 210 other persons, submitted written petitions and requested admission to Assembly chambers to present said petitions and request redress of grievances from the Assembly. .sb'xfu . ALASKANS FOR OPEN al., v. ANCHORAGE ASSEMBLY, ct al., - BAN-ZD- Cl COMPLAINT FOR. DECLARATORY AND RELIEF - 7 of 12 Iii??'1-. Having excluded members of the public, including plaintiffs and hundreds of other citizens who demanded entry, defendant ASSEMBLY also refused to admit or recognize these petitions or their contents. 3.6 On August 28, 2020, Anchorage Mayor Ethan Berkowitz issued Emergency Order which liberalized the restrictions on gatherings to 30 ALASKANS FOR OPEN MEETINGS. cl al.. v. ANCHORAGE ASSEMBLY et al.. - CI COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 3 of 12 persons or 50% capacity. ontemporaneously, Assembly Chair Felix Rivera rc-opened Assembly chambers to 60 persons. IV. CLAIMS. 4.1 VIOLATION OF ALASKA OPEN MEETINGS ACT. 4.1.1 Plaintiffs hereby rcincorporate the allegations listed in paragraphs 1.1 3.6. 4.1.2 Plaintiffs have a right under Alaska's Open Meetings Act to attend local government meetings in person, as ?[ajll meetings of a governmental body of a public entity or the state are open to the public except as otherwise provided by this section or another provision of law.? AS Municipal bodies shall provide reasonable opportunity for the public to be heard at regular and special meetings. AS 4.1.3 Defendants' orders closing the Assembly chambers and forbidding political gatherings under EO-IS violated Plaintiffs' rights under the Open Meetings Act. Further, they are manifestly unreasonable because such orders permitted some members of the press and some other staff and witnesses to attend in excess of the ?fteen (15) person limitation set by 4.2 42 USC 1983 - VIOLATION OF FIRST AMENDMENT OF UNITED STATES CONSTITUTION. 4.2.1 Plaintiffs hereby reincorporate the allegations listed in paragraphs 1.1 4.2.2 42 US. Code states that ?[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof ALASKANS FOR OPEN MEETINGS. ct al._ v. ANCHORAGE ASSEMBLY. ct al.. BAN-ZO- CI COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 9 of 12 ixthe deprivation of any rights, privileges. or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." 4.2.3 Plaintiffs have a right to speak and give in-perscn testimony to their elected representatives, peaceably to assemble, and to petition the government under the First Amendment of the Constitution of the United States of America. 4.2.4 Plaintiffs have been denied the exercise of these rights by defendants' actions in restricting access to Assembly chambers and by promulgating 130-15. 4.3 VIOLATION OF ARTICLE 1, SECTION 6 OF THE ALASKA CONSTITUTION. 4.3.1. Plaintiffs hereby reincorporate the allegations listed in paragraphs 1.1 - 4.3.2 Plaintiffs have a right to speak, peaceably to assemble, and to petition the government under Article 1, section 6 of the Alaska Constitution. 4.3.4 Plaintiffs were denied the exercise of this right by defendants' actions in restricting access to Assembly chambers and by promulgating 130-15. V. PRAYER FOR RELIEF. 5.1 Plaintiffs request the following equitable relief: a. A preliminary injunction prohibiting defendants Anchorage Assembly and Felix Rivera from excluding the public from Assembly chambers during Assembly meetings therein; ALASKANS FDR OPEN MEETINGS. ct al.. ANCHORAGE ASSEMBLY. et al.. BAN-ZD- CI COMPLAINT FOR DECLARATORY AND INIUNCTIVE RELIEF - 10 of 12 lsdeclaratory judgment that (FOUR WEEK RESET) is unconstitutional as-applied to plaintiffs' freedoms of speech and right to assemble and petition; c. A permanent injunction requiring the Anchorage Assembly and Municipality of Anchorage to permit public access to Assembly chambers whenever the Assembly regularly meets, subject to time, place, and manner restrictions; d. Declaratory relief in the form of an order declaring the Assembly's ordinances passed during the FOUR WEEK RESET as null and void for violation of Alaska' Open Meetings Act, pursuant to 44.62.3106). e. A determination that plaintiffs are public interest litigants and thereby entitled to full reasonable attorney's fees and costs under Alaska law; f. Such other relief as this court deems just and DATED at Anchorage, Alaska this 28?? day of October, 2020. is! Mario L. Bird Mario L. Bird, ABA 1211083 Co-Counseljbr Plaintiffs Aiaskansfor Open Meetings and Michele Deering LAW OFFICE OF MARIO L. BIRD PO Box 241 143 Anchorage, AK 99524 (907) 279-2473 E: mario@aklawmlb.com is! Michael Corey Michael D. Corey, ABA 8511130 ALASKANS FOR OPEN MEETINGS, et a1" ANCHORAGE ASSEMBLY, et al., BAN-ZU- CI COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ll of 12 'mmsef?nr Piafm?fm A Open Mee?ngx and Michele Bearing Brena, Bell 8: Walker, PC 810 St, Ste. 100 Anchorage, AK 99501 T: 258?2000 F: (907) 253-2001 E: mcorey@brenalaw.com ALASKANS FOR OPEN MEETINGS- (31:11.- v. ANCHORAGE ASSEMBLY. at - C1 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 12 of 12