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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

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,


ROBERT HAYES,                 )
                              )    Supreme Court No. S-10602
               Petitioner,         )
                              )    Superior Court No.
          v.                  )    3AN-02-6585 CI
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,

          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.


          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



          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
                    (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
               . . . .
               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

          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


          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



          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