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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Jeffery (11/09/2007) sp-6199
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
| STATE OF ALASKA and LAURA | ) |
| GLAISER, Director of the Division | ) Supreme Court No. S-12101 |
| of Elections, | ) |
| ) Superior Court Nos. 3AN-04-10296 CI, | |
| Appellants, | ) 3AN-04-10364 CI |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| MICHAEL I. JEFFERY and | ) No. 6199 - November 9, 2007 |
| NANCY NOLAN, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, William F. Morse, Judge.
Appearances: Joanne M. Grace, Assistant
Attorney General, Anchorage, and David W.
M rquez, Attorney General, Juneau, for
Appellants. Jonathon A. Katcher, Pope &
Katcher, Anchorage, for Appellee Michael I.
Jeffery. Eric T. Sanders, Feldman Orlansky &
Sanders, Anchorage, for Appellee Nancy Nolan.
Before: Matthews, Eastaugh, Bryner, and
Carpeneti, Justices. [Fabe, Chief Justice,
not participating.]
EASTAUGH, Justice.
BRYNER, Justice, dissenting.
I. INTRODUCTION
The question presented here is whether two sitting
Alaska judges complied with AS 15.35.070 and .110, which require
judges seeking retention in office to file declarations of
candidacy for retention with the Alaska Division of Elections no
later than August 1. The two judges filed their declaration of
candidacy forms after the statutory filing deadline had passed.
The Division of Elections determined that both judges were
ineligible to stand for retention. The superior court ultimately
concluded that the division had abused its discretion in making
that determination because the judges had substantially complied
with the filing requirements. Because we conclude that the
divisions determination was supported by the facts and had a
reasonable basis in law, we reverse and order the judges to
vacate their seats within ninety days after this opinion takes
effect per Appellate Rule 507(b).
It is easy and natural to be sympathetic to the
appellees, given both the harshness of the result and the
appellees outstanding record for public service as judges, but
the outcome here is compelled by unambiguous statutes.
II. FACTS AND PROCEEDINGS
Alaska judges wishing to retain their offices
periodically stand for retention.1 The Alaska Judicial Council
(the council) is the agency charged with evaluating judges
seeking retention and providing the public with information about
those judges.2 In November 2003 the council began the evaluation
process for all possible 2004 retention candidates by sending
questionnaires to each of the twelve judges who were potentially
required to stand for retention in the 2004 general election.
The questionnaires requested certain background information from
the judges, such as the types of cases they had handled in the
previous term of office and whether they were involved in any
legal or disciplinary matters. Both Superior Court Judge Michael
I. Jeffery and District Court Judge Nancy Nolan promptly returned
their completed questionnaires to the council. Two of the other
ten judges required to stand for retention in 2004 if they wished
to retain their judgeships did not return the questionnaires and
informed the council they would not stand for retention. In
January 2004 the council began the evaluation process for the ten
judges seeking retention, including Judge Jeffery and Judge
Nolan.
On June 8, 2004 the Division of Elections (the
division) asked the council for the mailing addresses of the
judicial retention candidates so the division could send them
information about the Official Election Pamphlet. The council
replied that same day by e-mailing the division the addresses for
the ten judges, including Judge Jeffery and Judge Nolan. The
following day, the division sent letters to the ten judges
reminding them of the August 7 deadline for submitting their
materials for inclusion in the voter pamphlet. The divisions
letter came in two versions. The version sent to Judge Jeffery
and Judge Nolan began with the introductory clause [a]lthough you
have not yet filed for judicial retention, and then reminded them
that August 1 is the deadline to file for judicial retention.
The other version, sent to judges who had already filed for
retention, instead stated, you have filed for retention.
In early July the council completed its evaluations of
the ten judges, and on July 15 it e-mailed the division its
retention and rejection recommendations for inclusion in the
election pamphlet. This July 15 e-mail included the councils
recommendations regarding both Judge Jeffery and Judge Nolan.
Because the council found both judges to be qualified, the
council members unanimously recommended that they both be
retained.3
The statutory deadline for filing judicial declarations
of candidacy for retention with the division was August 1.4
Neither judge filed a declaration of candidacy with the division
by that date.
On August 16 Judge Jeffery wrote a letter to the
division requesting an extension of the filing deadline and
enclosing his declaration of candidacy form. The letter stated
that I realize these documents are late. He had executed his
declaration on August 16. On August 19 Judge Nolan wrote a
letter to the division enclosing her declaration of candidacy
form. Her letter stated that [t]oday it came to my attention
that I failed to timely file the Declaration of Candidacy for the
2004 judicial retention election. She had executed her
declaration on August 19. In response, the division informed
Judge Jeffery it could not extend the deadline and informed Judge
Nolan it would not place her name on the ballot.
The two judges then filed separate complaints seeking
injunctive and declaratory relief. Each sought and obtained a
temporary restraining order and preliminary injunction requiring
the division to put their names on the 2004 ballot and to accept
their submissions for the election pamphlet. In the November
2004 election both judges were retained by their respective
electorates.
The judges cases were consolidated and all parties
moved for summary judgment. The superior court concluded that
because both judges had substantially complied with the statutory
filing requirements the division had abused its discretion in not
placing their names on the ballot.
The state and the Director of the Division of Elections
appeal.
III. STANDARD OF REVIEW
We review the superior courts grant of summary judgment
de novo, drawing all factual inferences in favor of, and viewing
the facts in the light most favorable to, the non-prevailing
party.5 Questions regarding the interpretation and application
of a statute are questions of law to which we apply our
independent judgment.6 If the question of law involves agency
expertise, however, we will apply the rational basis test and
defer to the agencys interpretation as long as it is supported by
the facts and has a reasonable basis in law.7 A statutory
construction adopted by those responsible for administering a
statute should not be overruled in the absence of weighty
reasons.8
We interpret the Alaska Constitution and the Alaska
Statutes according to reason, practicality, and common sense,
taking into account the plain meaning and purpose of the law as
well as the intent of the drafters.9
IV. DISCUSSION
A. Judge Jeffery and Judge Nolan Did Not File Declarations
of Candidacy by the Statutory Deadline.
Alaska Statute 15.35.070 provides: [e]ach judge seeking
retention in office shall file with the director a declaration of
candidacy for retention no later than August 1 before the general
election at which approval or rejection is requisite.10 Alaska
Statute 15.35.110 provides: [e]ach district judge seeking
retention in office shall file with the director a declaration of
candidacy for retention no later than August 1 before the general
election at which approval or rejection is requisite.11 The
director means the director of elections.12 The Division of
Elections concluded that Judge Jeffery failed to comply with AS
15.35.070 and that Judge Nolan failed to comply with AS 15.
35.110. The question here is whether that conclusion is correct.
The judges raise two main arguments on appeal. First,
they argue that they strictly, and not just substantially,
complied with the August 1 filing deadline by virtue of the June
8 and July 15 communications between the council and the
division. Alternatively, they argue that we should apply the
substantial compliance standard to judicial retention election
filing deadlines and hold that they substantially complied with
the August 1 deadline when they filed their declaration of
candidacy forms in mid-August. We address these arguments in
turn.
1. The June 8 and July 15 communications between the
council and the division were not the judges
declarations of candidacy.
The superior court found that both judges failed to
supply the Division with a formal statement declaring their
candidacy. It nevertheless concluded that the judges met their
statutory filing obligation because [t]he documents filed with
the Division in the context of the judges performance of other
mandatory acts constituted substantial compliance with the
requirements of AS 15.35.070 and .110. On appeal Judge Jeffery
and Judge Nolan do not argue that the two communications the
council sent to the division on June 8 and July 15 merely
substantially complied with the statutory requirements; they
instead argue that those communications strictly complied with
the statutory requirements.
They argue that because the Election Code, Title 15 of
the Alaska Statutes, does not define declaration of candidacy, we
must interpret that phrase in accordance with its commonsense
meaning. They argue further that the June 8 and July 15
communications between the council and the division qualify as
declarations of candidacy under this commonsense definition
because the communications clearly relayed to the Division the
fact that these judges had told the Council that they personally
had declared their candidacy for retention. Their argument
contains two contentions. First, that the judges unambiguously
declared their candidacy to the council by completing the
councils questionnaire. Second, that in its June 8 and July 15 e-
mails, the council unambiguously advised the Division that [Judge
Jeffery and Judge Nolan] had stated their intent to stand for
retention. The judges reason that the councils two
communications are declarations of candidacy because each
communication contained all the requisite information.
The Judiciary Article of the Alaska Constitution
specifies that every superior court judge shall be subject to a
retention vote in the first general election held more than three
years after appointment and every sixth year thereafter.13 It
also states that a superior court judges office becomes vacant
ninety days after an election for which the judge fails to file a
declaration of candidacy to succeed himself or herself.14 The
framers of the constitution left the details of such declaration
such as its form and the time limits for its filing to the
legislature.15
In response, the legislature established identical
requirements for declarations of candidacy at every level of the
judicial system: each judge must file with the director [of the
division] a declaration of candidacy for retention no later than
August 1 before the general election at which approval or
rejection is requisite.16 The legislature only authorized the
division to place on the ballot the names of judges who properly
filed a declaration of candidacy for retention.17 But other than
requiring judges to designate the district in which they will
seek retention,18 the statutes are silent with regard to what
substance a filing must have to be considered a judges
declaration of candidacy.
That the legislature provided little guidance to the
division as to whether a given communication qualifies as a
declaration of candidacy necessarily grants the division a
certain degree of discretion in making that determination. In
other words, whether a given filing satisfies the statutory
requirement that each judge file with the director a declaration
of candidacy is a question that involves the divisions expertise.19
We will defer to an agencys interpretation of a question of law
that involves agency expertise so long as the interpretation is
supported by the facts and has a reasonable basis in law.20 Here,
the division did not consider the June 8 or July 15
communications by the council to be the judges declarations of
candidacy. The judges argue and the superior court concluded
that this was an abuse of the divisions discretion. But because
its determination was supported by the facts and had a reasonable
basis in law, the division is entitled to deference for both its
interpretation of the constitution and the applicable statutes
and for its application of the law to the circumstances presented
in this case.
As Judge Jeffery and Judge Nolan observe, the Election
Code does not define the term declaration of candidacy. Because
these words have not acquired a peculiar meaning, by virtue of
statutory definition or judicial construction, they are to be
construed in accordance with their common usage.21 Blacks Law
Dictionary defines a declaration as [a] formal statement,
proclamation, or announcement, [especially] one embodied in an
instrument.22 Websters Dictionary similarly defines a declaration
as a formal statement; proclamation.23 Further, the Election Code
refers to the declaration as something that each judge shall
file,24 which Blacks Law Dictionary defines as a verb meaning [t]o
deliver a legal document to the court clerk or record custodian
for placement into the official record.25
The division contends that the phrase declaration of
candidacy refers to a document that, at a minimum, must contain a
personal, affirmative declaration of the judge to be a candidate.
We defer to this definition because it comports with common usage
of the terms file and declaration. The superior courts
conclusion that both judges failed to supply the Division with a
formal statement declaring their candidacy, if correct, would
therefore be fatal to the judges argument that they filed
declarations of candidacy.
The superior courts conclusion in this regard appears
to be supported by the evidence. The two documents that the
judges claim qualify as their declarations are an e-mailed
address list of judges sent by the council to the division on
June 8 and the councils recommendations regarding the ten judges
(some of whom had already filed their declarations of candidacy
with the division), sent on July 15. Neither communication
expressly declared that either Judge Jeffery or Judge Nolan held
a present intent to stand for retention. Neither communication
indicated that it was being made for the purpose of conveying any
such intent or for the purpose of satisfying AS 15.35.070 and AS
15.35.110. Neither communication referred to the declaration
statutes at all, and the July 15 e-mail referred instead to the
Councils contribution to the voter pamphlet, a subject governed
by a different statute and a different deadline. Neither
communication indicated that the council was discharging any duty
imposed on either judge to communicate with the division, or that
the judges had given the council permission to do so. The
councils purpose for the communications was most obviously to
satisfy the councils own constitutional and statutory
obligations;26 nothing implied a purpose of satisfying the
candidates own obligations to the division. And if the council
had actually also intended to satisfy the declaration statutes,
one would expect the councils communications to have expressly
invoked the declaration statutes and mimicked the operative
statutory language. The meticulous care the council took in
informing these judges of their duty to file a declaration with
the division by August 1 is inconsistent with reading the two
communications to be those declarations.
The divisions determination that the judges failed to
file declarations of candidacy is a reasonable interpretation of
the constitutional and statutory requirements and is supported by
the facts. It was therefore error for the superior court to
conclude that the division abused its discretion in determining
that the councils two communications did not qualify as the
judges declarations of candidacy.27
To the extent the judges and the dissent seem to argue
that the judges declared their candidacies by responding to the
councils evaluation in November 2003, we are unpersuaded. The
controlling statutes require that the declarations be filed with
the division of elections, not with the judicial council.
We are also unconvinced by the dissents contention that
the councils evaluations can be considered to be declarations of
candidacy and that since the Council is obligated by law to act
on and inform the Division of the judges declaration, a judge who
submits an official declaration of candidacy to the Council meets
the burden of making an affirmative declaration no less
effectively than by submitting it directly to the Division.28
First, it fruitlessly confuses the inquiry, and the relevant
terminology, to say that a judge submitted a declaration to the
council. A response to the questionnaire is no declaration
within the meaning of the controlling statutes. Nothing requires
or permits a judge to submit a declaration of any sort to the
council, much less a declaration satisfying the two declaration
statutes at issue here. Moreover, because we hold in Part IV.A.2
that AS 15.35.070 and AS 15.35.110 require strict compliance,
even if we assume that the council could satisfy the declaration
statutes, it certainly could do so only if it indeed filed a
declaration satisfying the division, and presumably only after
the judges gave it authority to do so. The council, by performing
its own specified duties, has no implicit or explicit incidental
authority or responsibility to convey declarations of candidacy
to the division. And, as we will see in the next part of our
discussion, there is no evidence in this case contemporaneous
with the filing deadline that suggests the candidates had given
the council authority to declare their candidacies, or that they
thought the councils communications with the division had
relieved them of their duty to file declarations of candidacy
with the division.
2. Strict compliance with the filing deadline is
required.
The judges also argue that, even if we hold that the
June 8 and July 15 communications did not satisfy the statutory
requirements, we should affirm the superior court on the
alternative ground that judicial retention candidates need only
substantially comply with election filing deadlines. The judges
argue that strict compliance is only appropriate with regard to
non-judicial candidates because they have to supply much more
information than their judicial counterparts, presumably because
information about judges is already available in the public
records. They also point out that strict compliance is justified
in the political arena because it prevents potential
gamesmanship, by which a candidate could otherwise wait until the
last minute to decide to run after first seeing who else filed.
This concern does not carry over to judicial retention elections
because judicial candidates are unopposed.
The judges substantially complied with the August 1
deadline, they argue, when they filed their declaration of
candidacy forms with the division in mid-August. The judges
argue that those filings substantially complied with the deadline
because the division was not hampered in its preparations for the
election since the council had previously provided the necessary
information. Further, they contend that although their mid-
August filings were after the deadline, they were filed
comfortably before the Divisions deadlines for printing ballots
and election pamphlets.
[W]here the election statutes fix a date for filing
petitions or certificates of candidacy, such documents must be
filed before the expiration of the time fixed, and [the] election
officials may not exercise any discretion in the matter.29 In
Falke v. State we stated that it is well established, both in
Alaska and in other jurisdictions, that election law filing
deadlines are to be strictly enforced. Strict compliance is the
rule, and substantial compliance the rare exception.30 Because
filing dates are mandatory, substantial compliance is not
sufficient, absent substantial confusion or impossibility. 31
Thus far we have permitted substantial compliance with
an election filing deadline in only one case. In Silides v.
Thomas, the candidate did not strictly comply with the deadline
for filing his financial disclosure statement.32 We held that the
election statutes that required Silides to simultaneously file
his financial disclosure statement in Anchorage and his
declaration of candidacy in Juneau were inherently unclear and
impossible to comply with.33 Because of the lack of clarity
inherent in the statute and the impossibility of compliance, we
departed from the normally salutary doctrine that election
deadlines must be strictly construed and strictly enforced and
held that substantial compliance was sufficient.34 In Division of
Elections v. Johnstone, we did not rely on a substantial
compliance theory, but we allowed Judge Johnstone to remain on
the bench even though he failed to file his declaration of
candidacy by the deadline.35 We excused Judge Johnstones failure
to timely file his declaration of candidacy because we concluded
that the Alaska Constitution was ambiguous with regard to when he
was required to stand for retention.36 Judge Johnstone was not
given any special treatment, however, because of his status as a
judge. He was effectively given the same treatment as Silides, a
non-judge.
In both Silides and Johnstone, we did not require
strict compliance. But in both cases we held that statutory or
constitutional ambiguity, and not a candidates oversight,
justified departure from the strict compliance standard.37
Because the August 1 declaration deadlines cannot reasonably be
considered ambiguous or impossible to comply with, there is no
justification for departing from the strict compliance standard
here.
The dissent may reason that the statutory retention
process was confusing or that the statutes were somehow
ambiguous.38 There is no ambiguity in the clear language of AS
15.35.070 or AS 15.35.110 or in any of the procedures. There is
no basis for importing a substantial compliance factor into their
text.
As confirmation of that proposition, it is clear that
no one was confused in June or July, or before August 19, 2004,
or had any doubt about what the declaration statutes required.
On June 9 the division sent the two judges letters stating you
have not yet filed for judicial retention . . . . August 1 is
the deadline to file for judicial retention. In comparison, the
division sent different letters to those judges who had filed a
declaration; those letters stated you have filed for retention.
On July 15, the same day the council sent its July 15 e-mail to
the division, the council also sent a memo to the ten judges,
explaining both the duty to file a timely declaration and the
consequences of failing to file on time:
In order to continue as a judge past next
January, state statutes require you to file
with the Director [of Elections] a
declaration of candidacy . . . no later than
August 1 . . . . If you do not file this
declaration of candidacy with the Director of
Elections on or before August 1, your name
will not appear on the ballot this fall and
your term as judge will end ninety days after
the election.
This message unambiguously conveyed the clear statutory
requirements and consequences. Given this message from the
council to the judges, neither the council nor the judges could
have thought any communication between the council and the
division could satisfy the declaration statutes. And on August
16, 2004, when Judge Jeffery submitted his declaration of
candidacy to the division, he stated in his accompanying letter I
realize these documents are late. On August 19, 2004, when Judge
Nolan submitted her declaration of candidacy, she stated in her
letter [t]oday it came to my attention that I failed to timely
file the Declaration of Candidacy. These communications are
inconsistent with any notion that the statutes or the procedures
were ambiguous or confusing or that the council or reasonable
persons could have thought that communication by the council with
the division would relieve or had relieved the judges of their
statutory duty to file declarations of candidacy with the
division.
Furthermore, the declaration statutes effectively
require a candidate to communicate to the division the candidates
current intention to stand for retention. The August 1 deadline
chosen by the legislature is late enough in the election sequence
that it provides an accurate declaration of each candidates
current intentions, unlike anything that might be inferred from
whatever the judge may have told the council the prior November,
before the evaluation process began.39 Likewise, the August 1
declaration deadline allows jurists previously interested in
retention to silently drop out before publication of any adverse
evaluation by the council or adverse information from the
Judicial Conduct Commission.40 This might explain why the
legislature adopted the August 1 deadline for declaring candidacy
for retention41 and the August 7 deadline for submitting
information for inclusion in the election pamphlet.42
A substantial compliance standard is thus inconsistent
with both the text of the controlling declaration statutes and
with the way the division, the council, and even the judges
interpreted the declaration statutes on or before August 19,
2004.43
B. The Judges Must Vacate Their Seats Within Ninety Days.
Having determined that the judges failed to file
declarations of candidacy by the statutory deadline, we now
consider the appropriate remedy. The superior court concluded
that the forfeiture sanction would be inappropriate. It reasoned
that because it had found that the judges filing snafus would not
impact the election process, the hardship that vacation would
cause on both the judges personally as well as the constitutional
retention election system and the electorate would be too severe.
On appeal Judge Jeffery and Judge Nolan argue that,
under Johnstone,44 we should weigh the hardship of our remedy on
the judges and on the electorate against the hardship caused to
the public from the judges failure to timely file their
declarations of candidacy. They note the personal hardship that
would be imposed on them if they were required to forfeit their
offices. More importantly, they argue, the public was unharmed
by their actions because it had ample time to consider whether to
support or oppose their candidacies. They observe that the
council: (a) treated the judges as candidates when it conducted
surveys in early 2004, (b) held a public hearing on the judges in
May 2004, (c) issued a press release announcing that it supported
the judges retention on July 26, and (d) listed the judges as
candidates on its website many months before the election.
The constitution states in part that a superior court
judges office becomes vacant ninety days after the election . . .
for which he fails to file his declaration of candidacy to
succeed himself.45 The legislature mirrored this wording when it
enacted the two statutes that regulate when a superior court or
district court judges office becomes vacant.46 We interpret the
Alaska Statutes according to reason, practicality, and common
sense, taking into account the plain meaning and purpose of the
law as well as the intent of the drafters.47 The plain meaning of
the constitution and the statutes is that vacation is the
mandatory consequence for a judges failure to file a declaration
of candidacy.
Johnstone can be differentiated from this case. In
Johnstone we held that we were establishing a new principle of
civil law.48 We therefore analyzed the hardship to Judge
Johnstone and the electorate to determine whether our holding
should only apply prospectively.49 If our holding had not
established a new principle of law, however, in the sense that it
had not overrule[d] prior law or decide[d] an issue of first
impression, the threshold test for prospective application would
not have been met50 and our analysis of the hardship of our
holding would not have been triggered.
Here, the law is clear that, absent statutory
ambiguity, strict compliance with election filing deadlines is
required,51 and the penalty for noncompliance is mandatory
vacation of office.52 We have no doubt that requiring Judge
Jeffery and Judge Nolan to vacate their office will lead to
personal hardship. This must seem like a bitter reward for years
of extraordinary public service by both judges. But because we
are not establishing a new principle of law by holding that the
judges failure to meet the filing deadline triggered the
mandatory vacation sanction, our decision is constrained by the
controlling legal principles. It was error to rule that the
hardship to the judges and electorate precluded application of
the forfeiture sanction.53
V. CONCLUSION
Because the divisions determination that Judge Jeffery
and Judge Nolan failed to file declarations of candidacy by the
August 1 deadline was supported by the facts and had a reasonable
basis in law, we REVERSE the superior courts judgment and ORDER
the appellees to vacate their seats within ninety days after this
opinion takes effect per Alaska Appellate Rule 507(b).54
BRYNER, Justice, dissenting.
I. INTRODUCTION
Alaska law requires judges who seek retention to
declare their candidacy to the Alaska Division of Elections no
later than August 1 of the election year. Here, two judges who
sought retention and received favorable evaluations by the Alaska
Judicial Council failed to file personal declarations of
candidacy with the Division; for that reason, the Division
refused to include them on the ballot, despite its receipt of
timely filings of the Councils evaluations, which established
that the judges had already declared to the Council their intent
to stand on the ballot. Todays opinion upholds the Divisions
decision. I disagree.
As an integral part of the judicial retention process
established by Alaska law, the Council must contact and evaluate
all sitting judges who seek retention well in advance of the
deadline for filing their declarations of candidacy with the
Division. As part of its evaluation process, the Council must
identify which judges actually intend to stand on the retention
ballot, and, after evaluating those who declare their intent, it
must file its evaluations with the Division so that the
evaluations can appear in the Divisions Election Pamphlet.
Because the law authorizes the Council to determine
which judges declared their intent to run, requires it to base
its evaluations on this determination, and obliges it to file its
evaluations with the Division, the Councils compliance with these
obligations before the August 1 deadline met all statutory
requirements for timely declarations of candidacy. The Councils
evaluations formally establish that each judge who is favorably
evaluated has declared the intent to stand for retention and
possesses the qualifications to do so. The evaluations also
incorporate all other information required by the Divisions
prescribed form for declaring candidacy. Accordingly, I would
conclude that the Division had authority to accept the
evaluations as declarations of candidacy, even though they were
filed by the Council and not by the individual judges evaluated.
II. OVERVIEW OF ALASKAS JUDICIAL RETENTION PROCESS
To explain my conclusion, it will help to begin by
reviewing Alaskas judicial retention process. Under Alaska law,
judges are appointed to office for indefinite terms but must
periodically appear on the ballot to allow voters to determine
whether they should be retained.1 Each judge must initially
stand for retention in the first general election held more than
three years after the judges appointment.2 After the initial
retention election, the interval to the next election depends on
the level of judgeship: ten years for supreme court justices;3
eight years for court of appeals judges;4 six years for superior
court judges;5 and four years for district court judges.6
The procedures for conducting judicial retention
elections are unique to Alaska. Alaska law requires three
separate state agencies to participate in the process: the Alaska
Judicial Council,7 the Alaska Commission on Judicial Conduct,8
and the Alaska Division of Elections.9 The role played by each
agency will be outlined below; because the courts opinion focuses
on the Divisions role in the process and makes only passing
reference to the Councils actions, the description here will
focus more closely on the Councils part of the overall process.
A. The Councils Role in the Retention Process
Alaskas judicial retention process begins with the
Alaska Judicial Council. The Council is an independent state
agency created by the Alaska Constitution whose primary
constitutional charge is to solicit, evaluate, and nominate to
the governor applicants for judicial positions.10 But the
constitution also requires the Council to perform other functions
upon direction by the legislature.11 The key duties the
legislature assigned to the Council include conducting a
preelection evaluation of each justice or judge seeking
retention, informing the public about its evaluation, and filing
the evaluation with the Director of Elections for inclusion in
the Divisions Election Pamphlet.12 To this end, the Election
Code specifically directs the Council to evaluate each supreme
court justice, court of appeals judge, superior court judge, and
district court judge who will be subject to a retention election
and to file with the lieutenant governor by August 7 a statement
incorporating the Councils evaluation of each candidate.13
In keeping with this statutory duty, the Council has
developed and adopted an intensive public process to evaluate the
performance of judges who intend to stand for retention.14 This
process encompasses all aspects of the judges performance; it
collects, compiles, and analyzes data from a broad spectrum of
participants in the judicial process; it invites all interested
members of the public to participate and comment on the
candidates at various stages of the process; and the Councils
activities are publicized on an ongoing basis by notice of the
Councils hearings, statewide press releases, and a regularly
updated, widely advertised website.15
Because this process is time consuming, the Council
must begin its evaluation in the fall of the year preceding the
year in which the retention election is to be held almost a year
before the election and nine months before the Councils August 7
deadline for filing its evaluations with the Division. Since the
Councils statutory charge is to evaluate those judges who will be
subject to the election16 not all judges eligible to run the
Council begins by sending all judges eligible for retention a
memo specifically addressed to Judges Standing for Retention; the
memo attaches a questionnaire soliciting information from those
judges who consider themselves to be Candidates for Judicial
Retention. The questionnaire asks responding judges for various
categories of information relevant to their retention:
$ a statistical breakdown of their workload;
$ a summary of their participation on court/bar committees and
in other administrative activities;
$ a narrative statement assessing their judicial performance,
including satisfaction with their judicial role, contributions to
the judiciary or the field of law, and improvements in knowledge
and skills;
$ a description of non-judicial events and activities that
could conflict with their judicial responsibilities, such as
having tax liens or collection proceedings filed against them,
being involved in non-court-related legal proceedings, engaging
in the practice of law, or holding any other local, state,
federal, or political office;
$ $ lists describing case names, numbers, and participants
in the three most recent cases handled by the judge involving
jury trials, non-jury trials, and dispositions requiring
significant work but ending without a trial; and
$ a list of case names, case numbers, and participants for any
other particularly noteworthy cases.
Judges who do not intend to run for retention are not
expected to return the questionnaires and, in fact, do not return
them. Those who do want to stand for retention return the
questionnaires; by so doing they provide the Council with the
information and authorization needed to trigger its statutorily
mandated evaluation. In effect, then, judges who submit
completed questionnaires to the Council declare their intent to
stand on the ballot.17 For its part, the Council interprets its
statutory duty as obliging it to evaluate each judge standing for
retention elections; in keeping with this interpretation, it
treats the returned questionnaires as declarations of candidacy.
The Council does not evaluate eligible judges who decline to
return questionnaires, and throughout the course of its
evaluation process it consistently refers to the responding
judges as judges who will actually stand[ ] for retention.
After receiving questionnaires from judges who intend
to stand for retention, the Council undertakes its investigation
and prepares its evaluation. The Councils investigation relies
on three broad sources of information: surveys asking various
interested groups to evaluate the judges performance; collection
and review of all performance-related materials available
concerning the judge, including materials available from other
public agencies such as the court system, the Alaska Public
Offices Commission, and the Commission on Judicial Conduct; and
information obtained through public input actively solicited by
the Council. In summarizing its evaluation procedures for the
2004 retention election, the Council emphasized the breadth and
openness of the process:
The Judicial Council evaluates judges with
the help of thousands of Alaska citizens
police and probation officers, attorneys,
jurors, court employees, social workers and
others who appear in court before the judges.
In 2004, the Council surveyed these groups,
asked for written and oral comments from the
public throughout the state, and reviewed
records about judges workloads, conflicts of
interest, and other aspects of performance.
Upon completing its investigation and compiling all
relevant data, the Councils staff prepares the judicial
evaluations and circulates the compiled materials to Council
members for review. The Council meets in July to consider the
information and make retention recommendations.18 As required by
law, the evaluations are then filed with the lieutenant governor
for inclusion in the Divisions Election Pamphlet. For the 2004
retention election, the Council held its meeting to adopt the
evaluations and recommendations on July 12, 2004. On July 15,
the Council filed all the judicial evaluations and
recommendations, as well as a two-page description of the
Councils judicial evaluation process, by transmitting these
materials to the Division in the form of Microsoft Word e-mail
attachments. In addition, the Council sent a CD and hard copies
of the same information as a backup in the event the Division
encountered problems with the documents in their e-mailed format.
These filings conformed to the Divisions regulations, which allow
electronic filing.19
The Councils two-page description of its evaluation
process identified the judges covered in its evaluation as judges
who were standing for the retention election, stating in relevant
part:
[S]tate laws require that the Judicial
Council evaluate each judge standing for
retention elections. Other laws require that
the Judicial Council publish its evaluation
in the Voters Pamphlet. The evaluations of
judges standing in the November 2004 election
appear on the following pages.
The individual evaluations for Judges Nolan and Jeffery
disclosed the judicial districts in which they were running and
summarized the information the Council had evaluated.
Specifically, Judges Nolans and Jefferys evaluations revealed
that the Council had surveyed and received ratings from 2,927
attorneys; 1,495 peace and probation officers; jurors appearing
before the judges in 2002 and 2003; court employees; and an
independent, community-based, volunteer court-observer
organization. In addition, the judges evaluations noted that the
Council had
completed a background investigation
including a court records check, a
disciplinary records check, a review of
conflict of interest statements submitted to
the court system and a review of financial
disclosure statements submitted to the Alaska
Public Offices Commission. Attorneys, peace
officers, court employees and jurors were
asked to submit written comments about the
judges. The Council actively encouraged the
public to comment, both in writing and in a
statewide public hearing teleconference.
Based on the totality of this information, the Council
recommended that the public vote to retain both judges.
On July 26, 2004, the Council issued a statewide press
release announcing that, after a comprehensive evaluation of
judicial performance, it had found all ten judges standing for
retention in the 2004 general election [to be] qualified. The
Council also recommended that voters retain each judge. The
press release set out a detailed description of the Councils
retention process, explained that Alaska law requires the
Judicial Council to evaluate every judge standing for retention
and to make the evaluations public. The press release also
included a 2004 Judicial Evaluation Summary disclosing various
survey ratings received by each judge assessing their performance
in office.
B. The Commissions Role in the Process
Under Alaska law, the Alaska Commission on Judicial
Conduct also plays a role in the judicial retention process,
albeit a considerably more limited role than the one played by
the Council. Like the Council, the Commission is an independent
state agency established under the Alaska Constitution.20 The
Commissions primary constitutional duty is to investigate
complaints of judicial misconduct and to recommend the imposition
of appropriate sanctions by the Alaska Supreme Court.21 The
Alaska Constitution gives the legislature authority to establish
the Commissions specific powers and duties.22
One such duty, set out in AS 22.30.011(h), requires
that, when a judge files a declaration of candidacy to stand for
retention, the Commission must give the Council a report
disclosing any public discipline imposed against that judge, so
that the discipline will be included with the Councils evaluation
in the Election Pamphlet.23 As evidenced by the Councils 2004
evaluations, the Commission reports the required information to
the Council during the course of the Councils retention
investigation, well in advance of the August 1 deadline for
judges to file declarations with the Division.24 Thus, in
performing its statutory duty to report any public discipline
imposed on a judge who has filed a declaration of candidacy for
retention in office, the Commission, like the Council, considers
any judge under active review by the Council to be a judge who
has filed a declaration.
C. The Divisions Role in the Process
Under Alaska law, the director of the Division of
Elections has a duty to provide general administrative
supervision over state elections.25 This general duty
encompasses the duty to supervise judicial retention elections.
Each judge seeking retention must pay a filing fee and file a
declaration of candidacy with the Division by August 1 of the
year in which the election will be held.26 Apart from requiring
judges to designate the judicial district in which retention is
sought, the Election Code does not prescribe any particular form
for the declaration or specify what information it must
contain.27 The Division has adopted a declaration form for
retention elections that requires judges to provide contact
information and to have their signatures notarized. As
recognized in todays opinion, the Division does not demand strict
adherence to this declaration form; but it does require, at a
minimum, that the declaration contain a personal, affirmative
declaration of the judge to be a candidate.28 Once a declaration
is properly filed, the Division must place the judges name on the
retention ballot;29 the Division must also include the judge in
the Election Pamphlet, along with the Councils evaluation and
recommendation on retention.30
III. ANALYSIS
A. The Councils Evaluations Amounted to Timely and
Statutorily Authorized Filings of Declarations of
Candidacy Made by the Judges.
Here, applying its own interpretation of what a
minimally acceptable declaration must contain, the Division
contends that the Councils retention evaluations filed with the
Division by e-mail on July 15, 2004 were not minimally
acceptable as declarations of candidacy. Though acknowledging
that the legislature provided little guidance . . . as to whether
a given communication qualifies as a declaration of candidacy,
todays opinion reasons that this ambiguity gave the Division a
certain degree of discretion in deciding what to accept as a
proper disclosure.31 Deferring to the Divisions expertise,
todays opinion accepts its interpretation, finding that it is
supported by the facts and has a reasonable basis in law.32
But the opinion and the state both mistakenly treat the
judicial retention process as essentially a one-agency ship with
the Division alone at the helm. As shown in the description
above, the process in fact requires the participation and
cooperation of three separate state agencies; and the legislature
has assigned the initial, and in many respects the primary,
responsibility for steering the course of the process to the
Council, not the Division. While the law undeniably requires
judges seeking retention to declare their candidacy to the
Division, it independently empowers the Council to determine for
itself which judges have declared their intent to run for
retention. When the Council determines that a judge does intend
to run, the law further requires it to investigate and evaluate
the judge and to file its evaluation and recommendation with the
Division.
When viewed as a whole, it seems apparent that this
legislatively mandated process gives both the Council and the
Division independent authority to elicit, receive, and act on
declarations of candidacy from eligible judges who are seeking
retention. Yet nowhere does the law empower either agency to
restrict, ignore, or override a determination formally made by
the other in performing its part of the process.
As noted above, when the Council sends a retention
questionnaire to a judge eligible for retention, the
questionnaire is expressly directed to Judges Standing for
Retention and Candidates for Judicial Retention. A judge who
completes and returns the questionnaire thus unequivocally
declares the intent to stand for retention; and in so doing, the
judge provides the Council with the information it needs to
investigate and evaluate the judges performance. The completed
questionnaire thus enables and authorizes the Council to
undertake its investigation which the Council would otherwise
have no authority to conduct.
By returning the retention questionnaire, then, the
judge initiates a formal administrative process that treats the
judge as a declared candidate; announces the judge to be running
for retention; investigates the judges qualifications and
performance; and ultimately leads to the filing of a statutorily
mandated report with the Division that evaluates the judge as a
candidate standing for retention and recommends how the public
should vote. Furthermore, the evaluation communicates to the
Division all the information the Division requires to be included
in a declaration of candidacy for judicial retention.
It follows that, when the Council files its evaluation
with the Division on or before the August 1 deadline for
declaring candidacy, the filing actually complies with all
statutory prerequisites for a timely and properly filed
declaration of candidacy. Just as a final judgment issued by a
court stands as evidence that the underlying facts and law
necessary to support the judgment have been determined and are no
longer in question, so the Councils evaluation, upon being filed
with the Division, establishes the Councils formal determination
that the evaluated judge has in fact declared the intent to stand
on the ballot and qualifies as a candidate for retention. The
Division has no more authority to disregard or reinterpret the
Councils formal determination that a judge is standing for
retention than it does to disregard or reinterpret the Councils
evaluation of the judges performance.
B. The Councils Evaluations Substantially Complied with
the Divisions Own Prescribed Declaration Form.
This is not to say that the Division, in performing its
own assigned duties in the overall retention process, lacks
authority to require something else from the judge by way of a
declaration. Here, by promulgating its own declaration of
candidacy form for judges seeking retention, the Division chose
to require a specific form of declaration that differs from the
declaration embedded in the judicial evaluation reports filed by
the Council. As the court correctly observes in todays opinion,
because the statutes are silent with regard to what substance a
filing must have to be considered a judges declaration of
candidacy, 33 the Division has authority to adopt its own
declaration form and to require judges seeking retention to
comply with it just as the Council has authority to decide what
a judge should be required to submit in order to declare
candidacy to the Council for purposes of initiating its retention
evaluation process. But as the court also acknowledges, the
Division has broad discretion to accept declarations that are
timely filed but fail to conform exactly to the Divisions
declaration form.34
Moreover, although the Division unquestionably had
authority to promulgate and enforce its own declaration
requirement, its prescribed disclosure form is not the exclusive
form authorized by the legislature. As already indicated, in
fulfilling its duty to evaluate judges seeking retention, the
Council had independent statutory authority to ask judges to
declare their candidacy to the Council; and within its sphere of
operation, the Council, not the Division, had the authority to
determine what constituted a valid declaration of candidacy.
Viewing the retention process as a whole, it seems fair to
conclude that both the Divisions form of declaration and the form
recognized by the Council met the broad and largely undefined
statutory requirement for a declaration. Accordingly, on July
15, 2004, when the Council filed retention evaluations with the
Division that reflected the Councils official determination that
all judges evaluated were declared candidates for retention, its
filing communicated to the Division a timely and statutorily
compliant declaration of candidacy by the judges.
Because the Council filed its evaluations before the
Divisions deadline for candidate declarations and because the
evaluations complied with the statutory requirement for a
declaration, the proper standard for determining whether the
evaluations passed muster under the Divisions prescribed
disclosure form should be whether they substantially complied
with the Divisions prescribed form, not whether they strictly
complied. Given the bifurcated allocation of institutional
responsibilities that defines Alaskas judicial retention process,
the Election Codes provisions requiring a judges declaration of
candidacy to be filed in the form of a declaration to the
Division rather than as a declaration originally made to the
Council and later forwarded to the Division as part of the
Councils required filing amounts to a requirement of form rather
than substance. And in the arena of election filings, we have
consistently recognized that, so long as a filing is timely and
complies with all substantive requirements imposed by law, any
technical or formal deficiencies in the filing are insubstantial
and may be corrected after filing.35
Here, the information included in the Councils
evaluations covered all of the substantive information required
by the Divisions declaration form. In my view, it follows that
the Division had authority to accept the July 15 filings as
timely and properly filed declarations of candidacy, subject to
correction to ensure compliance with the Divisions own formal and
technical standards.36
C. The States Arguments Fail To Support Its Position that
the Councils Evaluations Could Not Be Considered To Be
Declarations of Candidacy.
The state vigorously argues that the judges failure to
file personal declarations with the Division caused substantial
institutional harm in light of the intended purposes of requiring
judges to declare their candidacy to the Division. The state
points out that the Alaska Constitutions retention requirement
implicitly demands that judges formally declare their candidacy;
the state further points out that the Alaska Statutes
specifically require judges to submit their declarations to the
Division. According to the state, accepting the Councils
evaluations as a substitute for a direct declaration by the
judges to the Division would frustrate many of the purposes
served by these declaration requirements. But the states
position turns on the mistaken premise that the Division plays
the only significant role in the judicial retention process and
that the Divisions view of the law controls the entire process.
When the judicial retention process is realistically viewed in
totality, as we must properly view it, none of the specific
points advanced by the state stands up to scrutiny.
1. Construing the Councils evaluations to be properly
filed declarations of candidacy does not violate
the purposes of the statutory declaration
requirement.
As already described at considerable length, although
Alaska requires judges to file declarations with the Division,
the law also gives the Council the authority to require judges
eligible for retention to formally declare to the Council their
intent to stand for retention. The Council systematically does
just that. After judges declare their intent to seek retention
by returning retention questionnaires, the Council conducts an
investigation, prepares an evaluation, and, in compliance with
the express requirements of the law, notifies the Division of its
evaluations of all judges who, in the Councils view, have
declared their intent to stand for retention. The state
nevertheless argues that the law places the burden on the judge,
not on the Council, to make an affirmative declaration; the state
further suggests that reliance on the Councils evaluations
improperly shifts the burden away from the judge. But since the
Council is obligated by law to act on and inform the Division of
the judges declaration, a judge who submits an official
declaration of candidacy to the Council meets the burden of
making an affirmative declaration no less effectively than by
submitting it directly to the Division.
The state also argues that the e-mailed evaluations in
question here failed to satisfy the purposes of the statutory
filing requirement for various other reasons. According to the
state, the evaluations failed to meet the fundamental purpose of
authorizing the Director to place an eligible judge on the
ballot. But this argument is essentially circular: it assumes
that the Director had no authority because the Director declined
to view the Councils evaluation as establishing a declaration.
As indicated above, this point of view misperceives the law
governing the retention process as a whole. Although the
Divisions uncertainty about the legal significance of the
Councils evaluations may be understandable, this uncertainty
springs from legal confusion inherent in a retention process that
adopts a broad statutory definition of declarations that multiple
agencies must apply. Had the Director correctly interpreted and
applied the law governing the retention process as a whole, there
would have been no basis to conclude that the Division lacked
authority to act on the Councils evaluations. The usual solution
for confusion created by uncertain legal requirements lies in
clarifying the law through judicial interpretation or legislative
amendment to avoid future problems not in disqualifying judges
from the ballot.37
The state raises a nearly identical argument in
contending that the evaluations failed to satisfy a second basic
purpose of the declaration requirement: to assist the Division in
conducting orderly elections. The state insists that [i]t is not
the Directors responsibility to puzzle out whether the
evaluations amounted to declarations. But again, if a puzzle
existed, it arose from the lack of clarity in the statutory
language surrounding the current retention process, coupled with
the fact that no prior case had ever presented the problem raised
here. Moreover, the record hardly supports the states suggestion
that the status of Judges Jeffery and Nolan created an actual
puzzle. To the contrary, correspondence between the Division and
the Council unequivocally shows that both understood that the
retention evaluations covered only those judges whom the Council
considered to be the judges standing for retention.
For example, the Divisions Suzanne Mullen showed that
she understood this in her June 8, 2004, e-mail to the Council,
which asked for the mailing addresses for the 10 candidates for
2004 not for the twelve judges who were originally eligible for
retention. The Councils Susan McKelvie confirmed this
understanding in her June 10 e-mail to Mullen, stating, I am in
the process of creating the pages and will send them immediately
after the Council meets in mid-July to vote on the judges
standing for retention.
Indeed, it seems difficult to imagine how the Division
could have misunderstood that the Council had independently asked
eligible judges to declare their intent to run for retention. As
the state acknowledges in its briefing, the legislature has
assigned the Council the duty of providing evaluations for judges
who have declared their candidacy and are therefore qualified to
appear on the ballot. Given that the Council must begin its
evaluation process months in advance of the Divisions deadline
for filing declarations and routinely files its evaluations with
the Division before the deadline expires, it seems evident that
the Council can fulfill its statutory duty only by independently
asking all judges eligible for retention to declare to the
Council whether they actually intend to stand for retention.
According to the state, yet another purpose of a
declaration that the Councils evaluations fail to address is the
need for clarity as to the precise date when the judges
declaration is filed. For instance, the state points out that
the filing of a declaration triggers the deadline for registering
with the Alaska Public Offices Commission. But this argument
overlooks the fact that all judges eligible for retention are
supposed to have already filed APOC disclosures; and as expressly
established on the face of the Councils retention evaluations,
the Council checks for compliance with this requirement as part
of its background investigation of the judges who declare their
intent to run.
The state likewise points out that the filing of a
declaration triggers the Commissions duty to inform the Council
of disciplinary actions against judges who are up for
retention.38 Yet as already emphasized above, the Commission
provides these reports to the Council during the course of the
Councils investigation of the judges standing for retention;
thus, when the Commission carries out its statutory mandate to
report disciplinary sanctions to the Council, it views all judges
who are undergoing the evaluation process as already having
declared their candidacy regardless of whether they have
formally submitted a declaration to the Division.
The state further maintains that the Councils filing of
retention evaluations fails to serve the purpose of a declaration
by depriving the public of its right to know who the retention
candidates will actually be. The state points out that the
filing of a declaration with the Division triggers a ten-day
period allowing voters to challenge the declared candidates
eligibility to stand for retention.39 It argues that if the
public does not know who has declared, its ability to challenge
the judges will be lost. But this argument yet again presupposes
that the Division correctly chose to disregard the evaluations
compliance with the statutory requirement for a proper
declaration; thus, the asserted lack of clarity is largely self-
created. More importantly, the states position ignores the
reality that the Councils evaluation process is itself a formal,
statutorily authorized administrative process that treats the
judges who are undergoing evaluation as officially declared
candidates and extensively advertises them as judges standing for
retention.
Here, because of the widespread publicity the Council
gave to the retention process and the open invitation it extended
for the public to participate in evaluating the judges who were
actually running, by the time the August 1 deadline for filing
formal declarations with the Division arrived, the Council had
already fully informed the electorate that the judges it was
evaluating were officially declared candidates for retention.
Likewise, it had already actively encouraged all interested
members of the public to comment on the judges qualifications for
continued service in office. Any member of the public wishing to
challenge the eligibility of one or more judges would have had
ample opportunity to raise the challenge by communicating it to
the Council, without having to worry about the time constraints
imposed under the Divisions regulations.
From the standpoint of the public, then, the judges
were officially recognized candidates for retention well before
the August 1 deadline. Their recognition became official
precisely because of the Councils statutory role in the retention
process: by creating this role for the Council, the legislature
gave it the primary duty of ensuring that the public received
adequate notice of and an opportunity to challenge candidates.
The Council performed this role both by identifying and
evaluating all judges who declared an intent to stand for
retention and by establishing an open and public evaluation
process that maximized the electorates opportunity to comment on
and challenge the judges choosing to seek retention. In the
context of the retention process as a whole, the Divisions
regulation allowing a ten-day opportunity to raise a challenge
simply duplicates an opportunity already offered by the Council.
The state further suggests that if the Division allowed
the Councils evaluation to replace a timely declaration filed
directly by the judge seeking retention, its action would
frustrate the declaration requirements purpose of treating all
candidates equally; in the states view, judges must be held to
the same standard of compliance as all other candidates. But
while this argument is unassailable in the abstract, it overlooks
the reality that Alaskas law establishes a judicial retention
process that openly treats judges differently than any other
category of candidate both in providing that judges run
unopposed on the ballot and in requiring that those who do run
for retention must undergo an intensive public process that
requires their qualifications and performance to be evaluated by
the Council and reported to the public in the Divisions Election
Pamphlet. These unique provisions in the law pertaining to the
judicial retention process account for the differences in
compliance that result from the requirements of the process. But
at bottom, the same general principle applies here that governs
other election-filing requirements: when a required filing is
timely, proper in all substantive respects, and deficient only in
technical or formal ways that do not impair the requirements
basic purposes and goals, the absence of strict compliance should
not bar a candidate from appearing on the ballot.40
2. The states remaining arguments are unpersuasive.
Besides arguing that the Councils evaluations failed to
serve the basic purposes of the declaration requirement, the
state contends that declarations of candidacy made to the Council
in November 2003 when the judges submitted their retention
questionnaires would be too unreliable to be acceptable in
August 2004 when the Divisions deadline for declarations
expired. This argument makes little sense: under this theory, a
judges early declaration filed with the Division itself would be
equally unreliable and would become subject to question as the
deadline approached. Moreover, in asserting that an early
declaration to the Council might not reflect a final decision to
run, the state incorrectly assumes that the goal of a declaration
requirement is to elicit a final decision, rather than just a
clear declaration of present intent. No declaration need ever be
final at the time it is made to the contrary, declared
candidates for judicial retention remain free to withdraw from
the race and may have their names removed from the ballot unless
they act so late in the process that removal is no longer
feasible.41 The state offers no reason to suspect that a judge
who decides to withdraw after formally declaring candidacy to the
Council would be more likely to withdraw early than a judge who
declared directly to the Division.
As a final point, the state suggests in its reply brief
that the Councils evaluation is legally unacceptable as a
declaration because the Council lacked authority to act on behalf
of the judges. Relying on the Restatement (Second) of Agency,
the state insists that, because the judges failed to manifest
consent for the Council to act on their behalf in declaring their
candidacy to the Division, and because the Council never
consented to undertake this responsibility, no viable agency
relationship ever arose.42 But the state mistakenly focuses on
the notion of agency by consent the topic addressed by the
Restatement. The Restatement expressly disclaims any attempt to
cover agency-like relationships arising by statute rather than by
consent.43 Here, the Councils duty to evaluate candidates and
report its evaluations to the Division arises under a specific
provision of law; the Council has always interpreted its mandate
as requiring it to evaluate only those judges actually standing
for retention not all judges eligible to be on the ballot; and
judges effectively give their consent to have their declarations
of candidacy filed with the Division when they submit their
retention questionnaires to the Council thereby authorizing the
Council to treat them as declared candidates and to inform the
Division of its evaluation of them as candidates standing for
retention.
IV. SUMMARY
A. Summary of Position on Removal from Office
In short, by choosing to submit the Councils
questionnaire, a judge ultimately causes to be filed with the
Division an evaluation by the Council that officially confirms
the judge to be a declared retention candidate and evaluates the
judges qualifications as a candidate. When timely filed before
the August 1 deadline, the Councils evaluation meets the
statutory requirement for a timely declaration filed by the judge
with the Division. And because it supplies all information
required by the Divisions declaration form, the Councils
evaluation also substantially complies with the Divisions
required form. Finally, accepting the Councils evaluation as a
properly filed declaration does not undermine any purpose or goal
of the statutory declaration requirement; nor does it treat
judges differently than other candidates except insofar as the
law governing the judicial retention process provides for
different treatment. In my view, under these circumstances, the
judges failure to strictly comply with the Divisions required
declaration form did not warrant their disqualification from the
ballot.
Accordingly, I disagree with the courts decision
removing the judges from the bench. In my view, removal is
unnecessary as a matter of law, unsound as a practical matter,
and disserves the interests of justice and voters alike. Despite
widespread publicity concerning the judges violations and despite
the heavily publicized legal controversy generated by their
conduct, the electorate voted to retain both judges by margins
that fell solidly within the norm received by other judges on the
same ballot. Removing these judges from the bench will nullify
the clear intent of a fully informed electorate. At the same
time it will deprive the people of Alaska of a resource not
easily replaced: the judges knowledge, experience, training, and
judgment. Removal will also needlessly force the court system
and the state to absorb the cost and disruption of recruiting,
appointing, and training new judges all in the name of strict
compliance. Yet strict compliance is not a goal in itself. And
it can serve no purpose as a remedy for inattentive conduct that,
by systemic design, had no substantive consequences and
apparently never caused a shred of actual doubt about the judges
intentions to run for retention.
B. Violations of Judicial Conduct Code/Attorneys Fee Award
By no means do I suggest that the judges inattention to
the Divisions formal requirement should be condoned. To the
contrary, even though their failure to file personal declarations
turned out to be merely technical violations, the judges
inattention to the filing requirement nevertheless failed to
comport with their ethical duty to maintain the highest standards
of judicial conduct.44 Although the noncompliance here does not
warrant removal, I think that it certainly warrants investigation
by the Commission and potentially justifies imposition of public
reprimand as a sanction. For the same reason, I would conclude
that the superior courts award of prevailing-party fees to the
judges was inappropriate. Even as technical violations, the
judges conduct raised serious concerns and predictably led to
this litigation. Given the novel issues raised by the judges
conduct and the compelling nature of the states duty to enforce
Alaskas election laws, the Division and the state could hardly
have been expected to overlook the judges violations whether
technical or not. In my view, equity and the interests of
justice must bar the judges from recovering prevailing-party
attorneys fees, even though their non-compliance does not warrant
removing them from office. Todays opinion will require the
superior court to vacate its award of attorneys fees to the
judges. To this extent I concur in the opinion.
V. CONCLUSION
For these reasons, I dissent from todays decision
ordering the judges removed from the bench but concur in vacating
the superior courts award of fees.
_______________________________
1 Alaska Const. art. IV, 6 ([e]ach supreme court justice
and superior court judge shall, in the manner provided by law, be
subject to approval or rejection); AS 15.35.030 ([e]ach supreme
court justice shall [periodically] be subject to approval or
rejection); AS 15.35.053 ([e]ach judge of the court of appeals
shall [periodically] be subject to approval or rejection); AS
15.35.060 ([e]ach superior court judge shall [periodically] be
subject to approval or rejection); AS 15.35.100 ([e]ach district
judge shall [periodically] be subject to approval or rejection).
2 AS 22.10.150 (regarding superior court judges); AS
22.15.195 (regarding district court judges).
3 The scores on the Judicial Councils retention survey
were consistently very high for both judges. Judge Jefferys
overall average score was 4.3 and Judge Nolans overall average
score was 4.4.
4 AS 15.35.070 (regarding superior court judges); AS
15.35.110 (regarding district court judges).
5 Lewis v. State, Dept of Corr., 139 P.3d 1266, 1268-69
(Alaska 2006).
6 Catholic Bishop of N. Alaska v. Does 1-6, 141 P.3d 719,
722 (Alaska 2006).
7 W. States Fire Prot. Co. v. Municipality of Anchorage,
146 P.3d 986, 989 (Alaska 2006) (citing Tesoro Alaska Petroleum
Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987)).
8 Storrs v. State Med. Bd., 664 P.2d 547, 552 (Alaska
1983) (internal quotations omitted).
9 Native Vill. of Elim v. State, 990 P.2d 1, 5 (Alaska
1999).
10 AS 15.35.070.
11 AS 15.35.110.
12 AS 15.60.010(3).
13 Alaska Const. art. IV, 6. AS 15.35.100(a) imposes the
same requirement on district court judges, except that it
provides that district court judges must stand for retention in
the first general election held more than two years after their
appointment and every fourth year thereafter.
14 Alaska Const. art. IV, 7 (The office of any supreme
court justice or superior court judge becomes vacant ninety days
after the election at which he is rejected by a majority of those
voting on the question, or for which he fails to file his
declaration of candidacy to succeed himself.); see also AS
22.15.170(e) (applying same consequences to district court judges
who fail to file declarations of candidacy).
15 6 Proceedings of the Alaska Constitutional Convention
(PACC) App. V at 13 (December 5, 1955).
16 AS 15.35.040 (regarding supreme court justices); AS
15.35.055 (regarding court of appeals judges); AS 15.35.070
(regarding superior court judges); AS 15.35.110 (regarding
district court judges).
17 See, e.g., AS 15.35.090 (The director shall place the
name of a superior court judge who has properly filed a
declaration of candidacy for retention on the ballot . . . .); AS
15.35.130 (The director shall place the name of a district judge
who has properly filed a declaration of candidacy for retention
on the ballot . . . .).
18 AS 15.35.080 (regarding superior court judges); AS
15.35.100(b) (regarding district court judges).
19 Judge Jeffery and Judge Nolan concede that
[u]nquestionably, the Division of Elections has the authority to
exercise certain discretion in administering the election
statutes.
20 W. States Fire Prot. Co. v. Municipality of Anchorage,
146 P.3d 986, 989 (Alaska 2006) (citing Tesoro Alaska Petroleum
Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987)).
21 Div. of Elections v. Johnstone, 669 P.2d 537, 539
(Alaska 1983) (citing State v. Debenham Elec. Supply Co., 612
P.2d 1001, 1002 (Alaska 1980); Lynch v. McCann, 478 P.2d 835, 837
(Alaska 1970); AS 01.10.040 (providing in part: Words and phrases
shall be construed according to the rules of grammar and
according to their common and approved usage.)).
22 Blacks Law Dictionary at 436 (8th ed. 2004).
23 Websters New World College Dictionary at 375 (4th ed.
2004).
24 AS 15.35.070 (regarding superior court judges); AS
15.35.110 (regarding district court judges).
25 Blacks Law Dictionary at 660 (8th ed. 2004); Silides v.
Thomas, 559 P.2d 80, 88 (Alaska 1977).
26 Alaska Const. art. IV, 9 (stating that the council
must perform duties assigned by law); AS 22.10.150 (requiring the
council to conduct an evaluation of each [superior court] judge
before the retention election and shall provide to the public
information about the judge . . . 60 days before the retention
election); AS 22.15.195 (requiring the council to conduct an
evaluation of each [district court] judge before the retention
election and shall provide to the public information about the
judge . . . 60 days before the election).
27 Because we hold that the division did not abuse its
discretion in determining that the judges failed to file
declarations of candidacy, we do not need to decide whether the
council could file a declaration of candidacy with the division
on a judges behalf.
28 Dissent at 41.
29 Falke v. State, 717 P.2d 369, 374 (Alaska 1986)
(quoting Andrews v. Secy of State, 200 A.2d 650, 651 (Md. 1964)
(citation omitted)); see also Silides v. Thomas, 559 P.2d 80, 87
(Alaska 1977).
30 Falke v. State, 717 P.2d 369, 373 (Alaska 1986)
(citations omitted).
31 State v. Marshall, 633 P.2d 227, 235 (Alaska 1981)
(holding that declaration of candidacy filed ten minutes late was
not timely) (citing Silides, 559 P.2d at 86); see also Falke, 717
P.2d at 373 (substantial compliance standard improper unless
statute ambiguous).
32 Silides v. Thomas, 559 P.2d 80, 82 (Alaska 1977).
33 Id. at 86.
34 Id.
35 Div. of Elections v. Johnstone, 669 P.2d 537, 542-45
(Alaska 1983).
36 Id. at 544.
37 Id.; Silides, 559 P.2d at 86.
38 Dissent at 38, 41-42.
39 The dissent contends that it is incorrect to assume
that the goal of a declaration requirement is to elicit a final
decision, rather than just a clear declaration of present intent.
Dissent at 46.
This contention is problematic. Whether or not a
declaration is to be a final decision, the statutes implicitly
require a current decision, a present-day expression
contemporaneous with the date it is filed. They seem
inconsistent with conveying a stale decision, such as reflected
in any information in the questionnaire responses sent to the
council nearly eight months before. The dissents contention may
also assume that the councils communications with the division
somehow amounted to a clear declaration of present intent. But
the July 15 communication is not a declaration at all. Nor is it
a clear declaration, or a declaration of present intent.
This contention also seems to depend on the councils
discharge of its obligations in conducting and forwarding the
evaluation results. The councils executive director explained in
an affidavit filed in the superior court that [i]t would only be
upon an affirmative statement by the judge that he or she did not
intend to stand for retention that the judicial council would
refrain from evaluating a judge who was required to stand for
retention. Thus, the council would treat both a judge who
altogether failed to respond to the November questionnaire and a
judge who responded the same: It would evaluate both judges and
forward the evaluation results for both to the division for
inclusion in the election pamphlet. Therefore the council itself
does not treat questionnaire responses as a declaration critical
to triggering or discharging the councils duties.
40 AS 22.30.011(h) (providing in relevant part that after
a judge has filed a declaration for candidacy for retention in
office, the [Judicial Conduct Commission] shall report . . . each
public reprimand, suspension, or public censure received by the
judge).
In selecting the August 7 deadline it seems improbable
that the legislature intended that by supplying the evaluation
and conduct information for the election pamphlet by August 7,
the council would have any role in satisfying the August 1
declaration obligation the legislature imposed on the
candidates.
41 AS 15.35.070 (requiring declaration by superior court
judge by August 1); AS 15.35.110 (requiring declaration by
district judge by August 1).
42 AS 15.58.050 (providing in relevant part that [n]o
later that August 7 . . . the judicial council shall file . . . a
statement including . . . the evaluation of each justice or judge
conducted by the judicial council . . . [and a] statement
describing each public reprimand, public censure, or suspension).
43 It is therefore unnecessary to consider whether the
judges substantially complied with the declaration statutes. We
nonetheless are unconvinced by any assertion that the judges
substantially complied when the council conveyed the evaluation
and conduct information on July 15. Not only must the division
receive the critical information a straightforward expression of
the candidates intent, held at the moment of filing, to stand for
retention but the requirement of a declaration implies some
degree of formality beyond a message to be inferred from the
councils submissions for inclusion in the election pamphlet.
44 Div. of Elections v. Johnstone, 669 P.2d 537, 545-45
(Alaska 1983).
45 Alaska Const. art. IV, 7.
46 AS 22.10.100(b) (regarding superior court judges); AS
22.15.170(e) (regarding district court judges).
47 Native Vill. of Elim v. State, 990 P.2d 1, 5 (Alaska
1999).
48 669 P.2d at 544.
49 Id. at 545-46.
50 Commercial Fisheries Entry Commn v. Byayuk, 684 P.2d
114, 117-18 (Alaska 1984) ([W]hether the holding overrules prior
law or decides an issue of first impression[] serves as a
threshold test to determine whether a purely prospective
application of a new rule of law is even at issue.).
51 See, e.g., Falke v. State, 717 P.2d 369, 373 (Alaska
1986); Silides v. Thomas, 559 P.2d 80, 86 (Alaska 1977).
52 See Alaska Const. art. IV, 7 (regarding superior court
judges); AS 22.10.100(b) (regarding superior court judges); AS
22.15.170(e) (regarding district court judges).
53 We note that although Judge Jeffery and Judge Nolan
failed to timely file declarations of candidacy, the judgments
they have issued or will issue in the interim period between when
they were supposed to vacate their office (ninety days after the
November 2004 election) and when they are now ordered to vacate
(ninety days after this opinion takes effect per Appellate Rule
507(b)) are protected from collateral attack under the de facto
judge doctrine. See Gates v. City of Tenakee Springs, 954 P.2d
1035, 1038-39 (Alaska 1998).
54 Alaska Appellate Rule 507 provides:
(a) The opinion of the appellate court, or
its order under Rule 214, shall constitute
its judgment, and shall contain its
directions to the trial court, if any. No
mandate shall be issued.
(b) Unless the opinion or order expressly
states otherwise, the judgment of the
appellate court takes effect and full
jurisdiction over the case returns to the
trial court on the day specified in Rule
512(a) for return of the record. However, in
an appeal under Appellate Rule 207 relating
to release prior to judgment, the judgment of
the Court of Appeals takes immediate effect
and full jurisdiction over the case returns
to the trial court on the day the Court of
Appeals issues its opinion or order deciding
the appeal.
(c) A motion to stay the effect of the
judgment of the appellate court beyond the
day specified in Rule 512(a) shall be made to
that court.
Alaska Appellate Rule 512(a) provides in pertinent part:
(3) In a case decided by the supreme court,
the record shall be returned:
[a] on the day after the time for
filing a petition for rehearing expires, if
no timely petition for rehearing is filed;
or
[b] on the day after the supreme court
disposes of the case on rehearing, if a
timely petition for rehearing is filed.
1 See Alaska Const. art. IV, 5, 6; AS 15.15.030(10); AS
22.10.150; AS 22.15.195.
2 Alaska Const. art. IV, 6.
3 Alaska Const. art. IV, 6; AS 15.35.030; AS 22.05.100.
4 AS 15.35.053; AS 22.07.060.
5 Alaska Const. art. IV, 6; AS 15.35.060; AS 22.10.150.
6 AS 15.35.100; AS 22.15.195.
7 See AS 22.10.150; AS 22.15.195.
8 AS 22.30.010.
9 See AS 15.10.105(a). Alaska law dealing with the
requirements of the retention process variously attaches
responsibilities to the Division of Elections, the director of
the Division, and the lieutenant governor. As a practical
matter, these distinctions are inconsequential, since the
Division falls under the supervision of the lieutenant governor
and the director heads the Division. Unless context requires
otherwise, this dissent will simply refer to the Division. See
id.
10 See Alaska Const. art. IV, 9.
11 See id.
12 Alaska Statute 22.05.100 provides:
Each supreme court justice is subject to
approval or rejection as provided in AS 15
(Alaska Election Code). The judicial council
shall conduct an evaluation of each justice
before the retention election and shall
provide to the public information about that
justice and may provide a recommendation
regarding retention or rejection. The
information and any recommendation shall be
made public at least 60 days before the
retention election. The judicial council
shall also provide the information and any
recommendation to the office of the
lieutenant governor in time for publication
in the election pamphlet under AS 15.58.050.
If a majority of those voting on the question
rejects the candidacy, the rejected justice
may not be appointed to fill any vacancy in
the supreme court, court of appeals, superior
court, or district courts of the state for a
period of four years thereafter.
Alaska Statutes 22.07.060, 22.10.150, and 22.15.195 establish
identical requirements with respect to judges of the court of
appeals, the superior court, and the district court.
13 Alaska Statute 15.58.050 states:
No later than August 7 of the year in
which the state general election will be
held, the judicial council shall file with
the lieutenant governor a statement including
information about each supreme court justice,
court of appeals judge, superior court judge,
and district court judge who will be subject
to a retention election. The statement shall
reflect the evaluation of each justice or
judge conducted by the judicial council
according to law and shall contain a brief
statement describing each public reprimand,
public censure, or suspension received by the
judge under AS 22.30.011(d) during the period
covered in the evaluation. A statement may
not exceed 600 words.
14 See Alaska Judicial Council, Alaska Judicial Council
Retention Evaluation Program, in Alaska Judicial Council, twenty-
third Report: 2005-2006 to the Legislature and Supreme Court app.
F (2007), available at
http://www.ajc.state.ak.us/reports/23rdReport.pdf.
15 See id.
16 AS 15.58.050.
17 Indeed, by returning the questionnaires, not only do
the responding judges literally declare themselves to be
Candidates for Judicial Retention, but they sometimes respond to
specific questions with statements that clearly confirm their
active intent to continue serving as judges. For example, in
response to the questionnaires request to comment on her judicial
performance during her current term, Judge Nolan outlined areas
of her current accomplishments and went on to emphasize: I expect
to continue and expand these efforts in the future. I hope to
address reform to the current District Court calendaring system
to better serve the public and promote judicial well-being.
18 Alaska Judicial Council, Retention Evaluation
Information, http://www.ajc.state.ak.us/Retention/retent.htm
(last visited Oct. 26, 2007).
19 See, e.g., 6 AAC 25.700(b).
20 See Alaska Const. art. IV, 10.
21 See id.
22 See id.
23 Alaska Statute 22.30.011(h) states:
If a judge has been publicly
reprimanded, suspended, or publicly censured
under this section and the judge has filed a
declaration of candidacy for retention in
office, the commission shall report to the
judicial council for inclusion in the
statement filed by the judicial council under
AS 15.58.050 each public reprimand,
suspension, or public censure received by the
judge
(1) since appointment; or
(2) if the judge has been retained by
election, since the last retention election
of the judge.
24 The timing of the Commissions report is evident
because, when filed with the Division on July 15, 2004, the
Councils evaluations expressly declared that the Council had
already completed a disciplinary records check for both Judge
Nolan and Judge Jeffery.
25 See AS 15.35.070.
26 See, e.g., AS 15.35.070; AS 15.35.071; AS 15.35.110; AS
15.35.120.
27 See, e.g., AS 15.35.080; AS 15.35.130.
28 Slip Op. at 11 (quoting the states reply brief at 8).
29 See, e.g., AS 15.35.090; AS 15.35.130.
30 AS 15.58.050.
31 Slip Op. at 9.
32 Slip Op. at 9-10.
33 Slip Op. at 9.
34 See Slip Op. at 9-10.
35 See, e.g., Grimm v. Wagoner, 77 P.3d 423, 429-31
(Alaska 2003).
36 If deemed equivalent to a declaration of candidacy, the
Councils evaluations also would have failed to comply with the
separate statutory provision requiring a filing fee to be paid
for a declaration. See, e.g., AS 15.35.071; AS 15.35.120. The
state has not claimed that it lacks authority to relax the filing
fee deadline when an otherwise timely and proper declaration of
candidacy is submitted without the proper fee.
37 See generally, e.g., Div. of Elections of State v.
Johnstone, 669 P.2d 537 (Alaska 1983).
38 See AS 22.30.011(h) (requiring the Commission to inform
the Council of any public disciplinary actions taken or pending
against a judge when the judge has filed a declaration of
candidacy for retention).
39 See 6 AAC 25.260(a).
40 See Grimm, 77 P.3d at 430; see also Ruiz v. Sylva, 125
Cal. Rptr. 2d 351, 361 (Cal. App. 2002) ([s]ubstantial compliance
. . . means actual compliance in respect to the substance
essential to every reasonable objective of the statute (emphasis
in original) (citation omitted)); cf. Williams v. Clark County
Dist. Attorney, 50 P.3d 536, 540-41 (Nev. 2002) (timely petition
challenging residency of candidate ruled valid despite lack of
supporting affidavit attesting to petitioners personal knowledge
because later-filed affidavit ensured that every reasonable
objective of the statute was met and therefore established
substantial compliance).
41 House Bill 253, introduced May 3, 2007, would fill the
current void in the law by providing that candidates for judicial
retention may remove their names from the election ballot only by
filing a notice of withdrawal with the Division at least 48 days
before the election.
42 See Restatement (Second) of Agency 1, 7, 15 (1958).
43 Id. Scope Note at 2 (Likewise, various cases of non-
consensual representation are not dealt with [in the Restatement
(Second) of Agency], as where a statute provides that service of
process may be made upon a designated public official as agent
for a non-resident motorist . . . .).
44 See Alaska Code of Judicial Conduct, Canon 1.
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