You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hayes v. Municipality of Anchorage (5/3/2002) sp-5568
Notice: This opinion is subject to correction before publication in the Pacific Reporter. Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, e-mail email@example.com. THE SUPREME COURT OF THE STATE OF ALASKA ROBERT HAYES, ) ) Supreme Court No. S-10602 Petitioner, ) ) Superior Court No. v. ) 3AN-02-6585 CI ) MUNICIPALITY OF ANCHORAGE, ) O P I N I O N and CLERK OF THE MUNICIPAL ) ASSEMBLY, in his official capacity, ) ) Respondents. ) [No. 5568 - May 3, 2002] ) Petition for Review from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Peter A. Michalski, Judge. Appearances: Richard D. Kibby, Anchorage, for Petitioner. William A. Greene, Municipal Attorney, Anchorage, for Respondent Municipality of Anchorage. Thomas F. Klinkner, Birch, Horton, Bittner and Cherot, Anchorage, for Respondents Anchorage Municipal Clerk and Assembly. Before: Fabe, Chief Justice, Matthews, Eastaugh, Bryner, and Carpeneti, Justices. PER CURIAM. I. INTRODUCTION AND PROCEDURAL BACKGROUND Less than two weeks before the Municipality of Anchorages impending run-off election for an assembly seat in District 5, Robert Hayes filed suit in superior court to disqualify candidate Brian Whittle from appearing on the ballot. Hayes moved for a temporary restraining order and temporary injunction to stop the May 7 election. He alleged that Whittle fails to meet the one-year residency requirement for municipal candidates set out in Anchorage Municipal Charter 4.02(b)(2) because, before Anchorages assembly districts were redrawn as part of the municipalitys regular redistricting process in September 2001, Whittles home was located outside the boundaries of the former District 5. Superior Court Judge Peter A. Michalski issued a ruling four days after Hayes filed his complaint, denying his motion to stop the election. The following day, Hayes filed an emergency petition with this court, urging us to review the superior courts decision on an expedited basis so that Whittles eligibility for office could be determined before the election then less than a week away. We ordered an immediate response because Hayess petition appeared to raise an important legal issue of first impression and to warrant expedited attention. Having now considered the petition and responses, we grant review and decide the merits of Hayess claim on an expedited basis. As the municipality correctly observes in joining Hayess request for an immediate resolution, this court has previously held that [r]ulings in election cases should, if possible, be made prior to the election in order to avoid the needless expense and the shock to the public expectations which would result if an election were overturned.1 II. THE SUPERIOR COURTS RULING In denying Hayess motion to enjoin the election, the superior court relied chiefly on the conclusion that Hayess claim lacks legal merit. Judge Michalskis decision ably explains the facts of the case and the judges assessment of Hayess claim: Robert Hayes seeks to enjoin the run-off election set for May 7, 2002, claiming the ballot should not include Brian Whittle. After review of the motion [and] responses, . . . the court finds the plaintiffs Complaint for Temporary Restraining Order, Injunction and Declaratory Relief to be wholly without merit. The court denies the temporary restraining order and injunction. The [Anchorage] municipal charter [section 4.02] provides in part: (b) A candidate for the office of assemblyman: (1) Shall be a qualified voter of Anchorage; and (2) Shall be a resident of the district from which he/she seeks election for at least one year immediately preceding the election. Election districts were redrawn in September 2001. The next regular election was April 2002. As a result of the redrawing, the residence of Mr. Whittle the winner of a plurality of votes was included in what is called District 5. Whittle has lived in the same place over 20 years. Because his house was not in the District previously known as District 5, the plaintiff argues that Mr. Whittle fails the residency requirement noted above. . . . . Mr. Hayess legal position is completely without merit. Mr. Whittle has lived at the same residence for over 20 years. The redrawing of the districts around him does not change that. A common sense reading of the Charter must be to consider the period a citizen has lived within the area newly drawn, not whether the area the citizen is in has the same numerical designation it previously had. In effect, the present District 5 (though it may in some part overlap old District 5) is a new entity. Part of the confusion in thinking may be a result in using District 5 as the name of the district. Given an entirely different name, say District A, the thought process causing this complaint may have been avoided. The court interprets the Charter to mean that anyone who has lived within what is the newly drawn district for more than one year meets the residency requirement. To test the question presented, one might ask in what district Mr. Whittle may run under Mr. Hayess interpretation of the Charter. The answer is nowhere. Mr. Hayess interpretation of the Charter results in broad ineligibility for office anytime districts are redrawn, it would encourage misconduct by redistricting authorities, and it tests the limits of common sense. The request for temporary restraining order and preliminary injunction is denied. III. DISCUSSION Although Judge Michalski addressed an issue of first impression in Alaska, the judges interpretation of Charter 4.02 finds substantial support in an opinion of the Alaska Attorney General3 and in case law construing similar provisions in other states.4 Hayes nevertheless urges us to preclude Whittles candidacy because, according to Hayes, Whittle has not literally complied with Charter 4.02s mandate that is, he has not been a resident of the district from which he seeks election for at least one year immediately preceding the election.5 Whittles argument literally reads the charters reference to district as requiring Whittle to have lived in District 5 for more than a year before the election. But this literal reading ultimately proves too much and defeats itself. Charter 4.02s use of the word district unequivocally refers to a district as constituted at the time of the current election. Thus, if we were to construe 4.02s reference to district to require continuous residency in Assembly District 5, as Hayes suggests we should, 4.02s focus on the currently constituted district would require us to conclude that only residents who lived in the currently constituted district for at least one year immediately before the April 2002 municipal election would qualify for office. By definition, however, the redistricting process establishes new districts: Assembly District 5, as currently constituted, had no existence a year ago. Under Hayess logic, then, the conclusion would necessarily follow that nobody has lived in the current assembly district long enough to qualify for office. In support of Hayess interpretation, the Municipality of Anchorage advances a somewhat different argument, ostensibly based on Charter 4.02s underlying policy of maintaining an informed electorate. The municipality reasons that the voters of District 5 need Whittle to live in that district for a year so that they have an opportunity to know the candidate; conversely, it reasons, Whittle needs a year in-district to have an opportunity to know the peculiar issues and factors affecting the election district.6 But the municipalitys logic suffers from the same flaw as Hayess: it mistakenly focuses on District 5 as it existed before redistricting, rather than the currently constituted District 5, where Charter 4.02 places the focus. When viewed from the perspective of the current district, the municipalitys policy argument raises a two-way problem. If we presumed that Whittles lack of opportunity to acquaint himself with the voters and issues of former District 5 should disqualify him for office for a year after redistricting, then by parity of logic we would also have to presume that any candidates like Hayes, who resides within former District 5s boundaries, should likewise be disqualified from office; for they would similarly lack the opportunity to acquaint themselves with the voters and issues in the areas of the current District 5 that were formerly in another district. In effect, then, the municipalitys argument simply seeks to give a preference to its own chosen segment of the electorate, while disenfranchising another segment. But Anchorage Charter 4.02 unites all residents within the boundaries of the current district, leaving no reason to presume that any residents knowledge of its people and issues is superior to any other residents. And the Alaska Constitution gives all current district residents an equal right to vote and an equal opportunity to run.7 In short, Charter 4.02 makes sense only if construed, as Judge Michalski construed it, to require residency for at least one year before the election within the geographical boundaries of an election district as it is drawn at the time of election. IV. CONCLUSION Because the superior courts interpretation of the disputed residency requirement finds support in the law, comports with sound public policy, and makes common sense, we conclude that Hayess claim has no legal merit, AFFIRM the superior courts decision, and REMAND with directions to enter a final judgment dismissing the action. _______________________________ 1 Faipeas v. Municipality of Anchorage, 860 P.2d 1214, 1216 (Alaska 1993). 2 We have edited Judge Michalskis decision to conform to this courts technical guidelines for publication and to eliminate portions that are not germane to the issues presented on review. 3 See 1994 Informal Op. Atty Gen. 283 (July 1, 1994; File No. 663-95-0008) (advising that candidate whose residence, as a result of redistricting, had been placed in a different senate district was entitled to run for that senate district because [h]er residence [was] within the current, final boundaries of the senate district and she had resided at her current residence for over a decade). 4 See, e.g., Wenke v. Hitchcock, 493 P.2d 1154, 1160 (Cal. 1972). 5 Anchorage Municipal Charter 4.02(b)(2). 6 Emphasis omitted. 7 Cf. Gilbert v. State, 526 P.2d 1131, 1135 (Alaska 1974).