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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Municipality of Anchorage v. Mjos (03/27/2008) sp-6245

Municipality of Anchorage v. Mjos (03/27/2008) sp-6245, 179 P3d 941

     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

MUNICIPALITY OF ANCHORAGE, )
and BARBARA GRUENSTEIN, ) Supreme Court No. S- 13039
Municipal Clerk, )
) Superior Court No. 3AN- 08-05309 CI
Appellants,)
) O P I N I O N
v. )
) No. 6245 - March 27, 2008
PETER O. MJOS, M.D.,)
)
Appellee.)
)
          Appeal  from the Superior Court of the  State
          of    Alaska,    Third   Judicial   District,
          Anchorage, William F. Morse, Judge.

          Appearances:   Robert  P.  Owens,   Assistant
          Municipal  Attorney, Pamela Weiss,  Assistant
          Municipal  Attorney,  and  James  N.  Reeves,
          Municipal     Attorney,    Anchorage,     for
          Appellants.   Bruce  A.  Bookman,  Bookman  &
          Helm, LLP, Anchorage, for Appellee.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Carpeneti, and Winfree, Justices.

          PER CURIAM.

          Dick  Traini,  a  member  of  the  Anchorage  Assembly,
declared  his candidacy for reelection on January 25, 2008.   Dr.
Peter  Mjos filed an action against the Municipality of Anchorage
and  the  Municipal Clerk for injunctive relief  and  declaratory
judgment  that Traini was ineligible to run for reelection  under
the   three-consecutive-term  limitation   found   in   Anchorage
Municipal  Charter 4.02(e).  The superior court held that  Traini
was  ineligible  to  run for reelection under subsection  4.02(e)
based  on  its finding that a partial term counted as a term  for
the  purposes of the sections three-term limit.  The Municipality
appealed.   This court granted expedited consideration and  heard
oral  argument  on March 27, 2008.  We reverse for the  following
reasons.
FACTS AND PROCEEDINGS
          On  April  16,  2001, Dick Traini was  elected  to  the
Anchorage Assembly in a special mid-term election.  He served for
a  full year before being reelected for his first full three-year
term  on April 2, 2002.  Traini was then reelected again on April
18, 2005 for another three-year term.
          Because  Traini  was  considering running  for  another
term,   Barbara   Gruenstein,  the  Anchorage  Municipal   Clerk,
requested  that  an  attorney  give  an  opinion  on  the  proper
interpretation of the assembly term limits described in Anchorage
Municipal  Charter 4.02(e).  This term limit provision was  added
to  the  Municipal  Charter by popular vote in  1990.   Municipal
Charter 4.02 provides in part that:
          Section    4.02.    Term,   membership    and
          qualifications.
          
          (a)  If  all  assemblymen  are  elected  from
          single  member  districts,  the  term  of  an
          assemblyman  is two years.  If  some  or  all
          assemblymen  are  elected  from  multi-member
          districts,  the  term of  an  assemblyman  is
          three years.
          
          . . . .
          
          (e)  A  person who has served on the assembly
          for  three  consecutive  terms  may  not   be
          reelected to the assembly until one full term
          has intervened.
          
By  letter  dated January 7, 2008, the attorney gave his  opinion
that  serving on the Assembly for less than three years  did  not
count as a term toward the three-term limit.
          On  January 25, 2008, Traini declared his candidacy for
reelection   to   the   Assembly.   After  Trainis   declaration,
Gruenstein  informed  Traini  that  he  was  qualified  to   seek
reelection  to the Anchorage Assembly for an additional  term  of
three  years and that his name would appear on the ballot at  the
municipal election to be held on April 1, 2008.
          On  February 28, 2008, Dr. Peter O. Mjos filed suit  in
the  superior court and sought a preliminary injunction  pursuant
to  Alaska  Civil  Rule 65(a) to require the municipal  clerk  to
remove  Trainis  name from the April 1, 2008 ballot.   Mjos  also
moved  for declaratory judgment that Traini could not be  elected
to  the Assembly, regardless of whether his name remained on  the
ballot.   Mjos  based  his motion on the assertion  that  Trainis
initial  election to the Anchorage Assembly for one year  counted
toward the three-term limit imposed by Municipal Charter 4.02(e),
and thus Traini was not eligible to be reelected to the Anchorage
Assembly until one full term had intervened.  The Municipality of
Anchorage  and Gruenstein (collectively Municipality)   responded
by  filing a cross-motion for declaratory judgment that Municipal
Charter 4.02(e) limits assembly members to three consecutive full
terms.
            Briefing  on  the  subject  was  completed  and  oral
argument  was heard before the superior court on March 17,  2008.
The  superior court issued its final judgment from the bench  and
in  a written order that same day.  The superior court found that
the  word  terms as used in Municipal Charter 4.02(e) includes  a
partial term, and therefore held that Traini was not eligible for
reelection.
          The Municipality appeals.
DISCUSSION
          In  our  view  there  is  a  presumption  in  favor  of
candidate  eligibility.   In cases where  there  is  a  statutory
ambiguity as to whether or not a candidate is eligible to run for
office,  the statute should be construed in favor of eligibility,
so  long  as  it  may be reasonably so read.1  In light  of  this
presumption,  the  question  here is  whether  the  phrase  three
consecutive  terms, as used in subsection 4.02(e) can  reasonably
be interpreted to refer only to full terms.  We believe that this
question  is  close and that the interpretation  adopted  by  the
superior court  that terms in subsection 4.02(e) refers  to  both
full  and  partial  terms  is logical and  more  consistent  with
established principles of statutory interpretation.  Nonetheless,
we  conclude that interpreting the language in question to  refer
only to full terms is reasonably possible.
          The   argument   in   favor  of  the  superior   courts
interpretation focuses on the use of the word full in the  phrase
until  one  full term has intervened.  Use of the  modifier  full
here  implies  that the unmodified word terms as  first  used  in
subsection 4.02(e) encompasses partial as well as full terms.  If
the  drafters of the provision thought that use of the word  term
or  terms  meant  only  full terms, the modifier  full  would  be
unnecessary surplusage.
          Use of the modifier full in the second usage of term in
subsection  4.02(e) therefore suggests that because the  modifier
is  not  employed in the first usage, terms there may  be  either
full  or partial terms.  But this does not necessarily mean  that
the  unmodified  word  terms  in its first  usage  in  subsection
4.02(e)  cannot reasonably be read to refer only to  full  terms.
Subsection  4.02(a)  states that the term of  an  assemblyman  is
three  years.   Term  here clearly refers to a  full  term,  even
though  the  word  full is not included.  It is possible  that  a
drafter  focusing on subsection 4.02(a) might think that term  or
terms  wherever used later would necessarily refer to full  terms
and  that the use of the modifier full was not necessary.   Under
this  interpretation, use of the modifier full  to  describe  the
necessary  interval  that must pass before a three-term  Assembly
member  could run again might be explained as merely an  exercise
in  caution rather than an intended signal that the earlier usage
of the word terms was meant to include partial terms.
          The  principle  disfavoring  an  interpretation  of   a
statute  that  fails to give meaning to a word or  section  is  a
guideline only.  In Homer Electric Assn v. Towsley,2 we observed,
          after acknowledging this principle, that it does not apply in all
circumstances.    We  noted  that  [r]edundancy  in   legislative
drafting, as in other writing, is not uncommon.3  Here  we  think
that  it is reasonably possible in light of the plain meaning  of
the  word  term  used  in  subsection 4.02(a)  that  a  draftsman
intended  terms used in the first part of subsection  4.02(e)  to
have  the  same  meaning as in subsection 4.02(a) notwithstanding
the  contrary implication that arises from modifying term in  the
second usage in subsection 4.02(e) with the word full.
          Since we conclude that both parties interpretations  of
subsection  4.02(e)  are  reasonably  possible,  we   apply   the
presumption in favor of candidate eligibility referred to  above.
Accordingly, the judgment of the superior court is REVERSED,  and
this case is REMANDED to the superior court for entry of judgment
in favor of the appellants.
_______________________________
     1    Statutes dealing with the right of voters  to
          choose  public  officials and  the  right  of
          citizens to aspire to and hold public office,
          should  receive  a  liberal  construction  in
          favor  of  assuring  the  right  to  exercise
          freedom   of   choice  in  selecting   public
          officials and also the right to aspire to and
          hold public office.
          
63C  Am. Jur. 2d Public Officers and Employees  53 (1997) (citing
Cannon  v.  Gardner, 611 P.2d 1207, 1211 (Utah 1980)).   We  have
likewise  expressed  a  preference in favor  of  eligibility  for
elective  office.   OCallaghan v.  State,  826  P.2d  1132,  1137
(Alaska 1992); Warwick v. State ex rel. Chance, 548 P.2d 384, 389
(Alaska 1976).

     2    841 P.2d 1042, 1045 (Alaska 1992).

     3    Id.

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