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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,
e-mail corrections@appellate.courts.state.ak.us.
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.[2]
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).
