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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

State v. Jeffery (11/09/2007) sp-6199, 171 P3d 226

     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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