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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alaska Judicial Council v. Kruse (8/8/2014) sp-6938

Alaska Judicial Council v. Kruse (8/8/2014) sp-6938

        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, email  

        corrections@appellate.courts.state.ak.us.  



                   THE SUPREME COURT OF THE STATE OF ALASKA  



ALASKA JUDICIAL COUNCIL,                          )  

LARRY COHN, Executive Director                    )       Supreme Court Nos. S-14874/14893  

of the Alaska Judicial Council,                   )  

                                                  )                                                        

GAIL FENUMIAI, Director of the                            Superior Court No. 3AN-10-11796 CI  

Division of Elections, and STATE OF               )  

ALASKA, Division of Elections,                    )       O P I N I O N  

                                                  ) 

              Appellants and                      )       No. 6938 - August 8, 2014 

              Cross-Appellees,                    )  

                                                  )  

        v.                                        )  

                                                  )  

SUSAN KRUSE, DENNY WELLS,                         )  

JAY HANSON, ALIYSHA MARTIN,                       )  

VICKI THOMPSON, VICTORIA                          )  

SHAMP, LISA WELLS, ALLISON                        )  

L. BISS, DANIEL J. ALPERT, and                    )  

NANCY D. LEE,                                     )  

                                                  ) 

            Appellees and                         ) 

            Cross-Appellants.                     )  

________________________________ )
  



                                                             

                 Appeal from the Superior Court of the State of Alaska, Third  

                 Judicial District, Anchorage, Michael Spaan, Judge.  



                 Appearances:       Ruth  Botstein,  Assistant  Attorney  General,  

                 Anchorage,  and  Michael  C.  Geraghty,  Attorney  General,  

                 Juneau, for Appellants/Cross-Appellees.  Stephanie D. Patel,  

                 Law      Office     of    Stephanie       Patel,     Anchorage,        for  

                 Appellees/Cross-Appellants.  



                 Before:    Winfree,  Stowers,  Maassen,  and  Bolger,  Justices.  

                 [Fabe, Chief Justice, not participating.]  



                 STOWERS, Justice.  


----------------------- Page 2-----------------------

I.        INTRODUCTION  



                                                                                                               

                    In 2010 the Alaska Judicial Council recommended that the electorate not  



                                                                                                                                 1  

                                                                                 

retain  a  sitting  district  court  judge.    Susan  Kruse  and  a  handful  of  other  voters 



challenged the constitutionality of AS 22.15.195, which grants the Council power to  

                   



make  such  recommendations.    The  superior  court  concluded  that  the  statute  is  



constitutional but enjoined the Council from releasing new information about the judge  



                                                                                        

in  the  60  days  prior  to  an  election.    On  appeal,  we  hold  that  AS  22.15.195  is  



constitutional and does not limit the Council's dissemination of new information.  We  



thus affirm the superior court's ruling in part but reverse and vacate the superior court's  



                                                        

injunction prohibiting the Council's public dissemination of new information in the 60  



days preceding an election.  



II.       FACTS AND PROCEEDINGS  



                                                                                                  

                    The Alaska Constitution provides that each "judge shall . . . be subject to  



                                                                          2  

                                                                               The  frequency  of  these  retention  

approval  or  rejection  on  a  nonpartisan  ballot." 



elections varies for supreme court justices and judges of the court of appeals, superior  

                                                                                                     



                                    3  

court, and district court.   Relevant to this appeal, a district court judge "shall be subject  

                                                                                         



to approval or rejection at the first general election held more than two years after the  



          1         For simplicity we refer to the appellants collectively as Kruse.  



          2         Alaska Const. art. IV,  6; see  Alaska Const. art IV,  4 ("Judges of other                       



courts shall be selected in a manner, for terms, and with qualifications prescribed by  

law."); AS 15.35.100 ("Each district judge shall be subject to approval or rejection at the  

                                                                                                          

first general election held more than two years after the judge's appointment . . . .  If  

approved, the judge shall thereafter be subject to approval or rejection in a like manner  

                                                                       

every fourth year.").  Although AS 15.35.100 controls the retention of district court  

judges, we cite to the Alaska Constitution because the Constitution first adopted the  

                                   

retention system.  



          3         See Alaska Const. art. IV,  6; Alaska Const. art. IV,  4; AS 15.35.100.  



                                                               -2-                                                         6938
  


----------------------- Page 3-----------------------

                                                                                             4  

judge's  appointment"  and  "every  fourth  year"  thereafter.      The  Alaska  Judicial  



                                                                                                                

Council - which consists of three members of the public, three attorneys, and the Chief  



                                                                                         

Justice  of  the  Alaska  Supreme  Court  -  is  tasked  with  implementing  the  retention  



election system.  The legislature has delineated these duties in AS 22.15.195, which  



               

provides that the Council will "conduct an evaluation of each judge before the retention  



                                                                                                              

election and . . . provide to the public information about the judge and may provide a  



recommendation  regarding  retention  or  rejection."    Since  1976  the  Council  has  



                                                                                          

recommended non-retention of a judge only twelve times, and seven of those times the  

voters have nonetheless voted to retain the judge.5  



                                                                                                              

                    In July 2010 the Council recommended that a sitting district court judge not  



be  retained  in  the  November  2,  2010  election.    The  Council  cited  "mental  health  



difficulties"  and  "constant  friction  between  [the  judge]  and  other  judges,  court  



                                                                                                                 

administrators, and court staff."  The Council also released the numerical scores of the  



                                       6  

evaluation  of  the  judge;   the  judge  was  rated  as  acceptable  to  good.    After  the  



                                                                                                       

recommendation was released there was extensive media coverage, including a post by  



          4         AS 15.35.100(a).  



          5         After we heard oral argument in this appeal, the Judicial Council issued its  



recommendations  for  retention  of  judges  standing  for  retention  election  in  the  

November  2014  general  election.    The  Council  recommended  non-retention  of  one  

                                                               

judge, bringing the number since 1976 to twelve judges.   2014 Retention Information,  

                          

ALASKA  JUDICIAL COUNCIL, http://www.ajc.state.ak.us/retention/retent2014/ret2014.html  

(last visited July 21, 2014).   It remains to be seen whether the electorate retains this  

                                                                                                   

judge.  



          6         As part of its evaluation process, the Council obtains ratings from members  

                                                                                        

of the Alaska Bar Association, jurors, police officers, court employees, and others, who  

                                                                                                            

rate  judges  standing  for  retention  election  on  a  number  of  subjects,  including  legal  

ability, diligence, temperament, and impartiality.  The Council reports the results of the  

                                                                             

ratings as part of its evaluation provided to the public.  



                                                                -3-                                                        6938
  


----------------------- Page 4-----------------------

a local blogger questioning the recommendation, an opinion piece in the Anchorage  



                                                                         

Daily News by the Council's executive director, and radio interviews with both the judge  



                                                         

and the Council's executive director.  The Council also hired a well-known local figure  



to be its spokesperson for purposes of explaining its recommendation not to retain the  



judge.  



                    Kruse filed her first complaint on October 29, 2010, a few days prior to the  



election.    The  retention  election  took  place  on  November  2,  and  the  judge  was  not  



retained.  Kruse filed an amended complaint on November 18, alleging five causes of  



action, mainly relating to the extent of the Council's advertising in the judge's retention  



             7 

                              

election,  but also  attacking the constitutionality of AS 22.15.195, which allows the  



                                                      8  

                                                                                    

Council to make recommendations.                         The election was certified on December 1, 2010,  



                                                                                                                     

over Kruse's objections.  And on December 15, 2010, the judge stipulated, as part of an  



agreement with the Alaska Commission on Judicial Conduct, that he would "at no time  

in the future seek or hold a position as a judicial officer in the State of Alaska."9  



          7         The amended complaint alleged that:  (1) the Council failed to meet its duty                 



to  provide  information;  (2)  the  Council  "violated  the  public  trust"   by  selectively  

releasing  material;  (3)  the  Council  exceeded  its  statutory  authority  by  taking  an  

adversarial  role;  and  (4)  the  Council's  actions  were  a  "corrupt  practice"  under  

AS 15.20.540.  The superior court found these claims moot because the election had  

already  occurred  by  the  time  the  case  was  ripe  for  decision.    On  appeal  Kruse  has  

              

"waive[d] specific consideration of the issue of mootness as to those issues that are not  

                                                                     

specifically related to the constitutionality of the . . . statute."  



          8  

                                                                                                               

                    AS 22.15.195 provides:  "The judicial council shall conduct an evaluation  

             

of each judge before the retention election and shall provide to the public information  

about the judge and may provide a recommendation regarding retention or rejection."  



          9         The   Alaska   Commission   on   Judicial   Conduct,   which   investigates  



                                                                                                                     

allegations of judicial misconduct, filed a complaint against the judge on April 30, 2010.  

                                                                                           

The judge answered on June 1 denying the allegations and arguing that he was being  

                                                                                                              (continued...)  



                                                               -4-                                                         6938
  


----------------------- Page 5-----------------------

                                                                                                            

                    Kruse moved for summary judgment on her fourth cause of action - the  



                                                                                                               

constitutionality of AS 22.15.195 - arguing that it conflicts with various sections of the  



                                   

Alaska Constitution.   In the alternative, she contended that the Council exceeded its  



                                                                                        

statutory authority by engaging in "executive patronage" and by releasing information  



                                                                                                 

about the judge in the 60 days before the election.  The Council filed a cross-motion for  



                                                                                                     

summary judgment, arguing that the constitutional challenge was moot and, if not, the  



                                                                                                   

Alaska Constitution gives the legislature a broad grant of power to delineate the duties  



of the Council.  



                                                                                                                   

                    The superior court concluded that although "[Kruse] would not be entitled"  



                                                                                                          

to the majority of the relief she requested, the constitutional claims were "subject to  



                                                                                                                

limited  review  for  declaratory  relief."    The  court  concluded  that  AS  22.15.195  is  



                                                 

constitutional because article I, section 9 of the Alaska Constitution gives a broad grant  



of power to the legislature to decide the duties and powers of the Council.  But the court  



                                         

determined that the statute does not allow the Council to publish new information within  



                                                                                                       

60 days of an election.  It concluded that the legislature wanted to give judges time to  



withdraw from the retention election if they received an unfavorable evaluation, and  



allowing  the  Council  to  publish  new  information  would  conflict  with  this  purpose.  



                            

Finally, the court denied both parties' motions for attorney's fees because it concluded  



that it was "inappropriate to award attorney's fees on Plaintiff's constitutional claim,  



             

and . . . neither [the Council] nor [Kruse] can be considered the 'prevailing party' for  



purposes of awarding attorney's fees."  



          9(...continued)  



retaliated against for reporting workplace discrimination.  The judge moved to dismiss  

                                                                                                                     

the  charges  on  September  24.                  After  he  was  not  retained,  the  judge  entered  into  a  

                                                                                                                          

stipulation with the Commission whereby he agreed to be publicly censured and never  

                                                                 

again hold judicial office in Alaska.  



                                                               -5-                                                         6938
  


----------------------- Page 6-----------------------

                     The Council moved for a stay of the ruling prohibiting dissemination of  



                                                                                  

new information pending appeal, arguing that the injunction barring it from releasing  



                                                               

new information would have drastic, unintended policy consequences in the coming  



                                                                                           

retention elections.  The superior court granted the stay, noting that "[g]iven the factual  



              

context of this case, the question of whether the [Council] may publish new information  



                                                                                  

in support of a judge within the 60 days preceding a retention election was not properly  



                                                                                                                   

before the Court."  (Emphasis in original.)  The court concluded that it was "unclear as  



                                                                                                                   

to  whether  this  was  the  intent  of  the  legislature"  and  explained  that  "certain  policy  



concerns may lead to a different result."  



                                                                                     

                     Both the Council and Kruse appeal.   The Council appeals the superior  



                                                                                                         

court's order that it cannot release new information in the 60 days preceding an election;  



Kruse appeals the superior court's ruling upholding the constitutionality of AS 22.15.195  

and the court's decision regarding attorney's fees under Rule 82.10  



III.       STANDARD OF REVIEW  



                                                                                                                          

                     "We apply our independent judgment in determining mootness because, as  



                                                                                                        11  

a  matter  of  judicial  policy,  mootness  is  a  question  of  law."                                        We  also  "review  



                                                                  12  

                                                                                                                              

constitutional  questions  independently"                             and  "adopt  the  rule  of  law  that  is  most  



                                                                                            13  

                                                                                                            

persuasive  in  light  of  precedent,  reason,  and  policy."                                     "The  interpretation  of  a  



           10        It is unclear whether on appeal Kruse is arguing that she "prevailed" on the       



constitutional issues as well.  But, as we do not reach the merits of the attorney's fees       

appeal, we do not attempt to discern her arguments.  



           11        Akpik v. State, Office of Mgmt. & Budget , 115 P.3d 532, 534 (Alaska 2005)  



(citing Ulmer v. Alaska Rest. & Beverage Ass'n, 33 P.3d 773, 776 (Alaska 2001)).  



           12  

                                                                                        

                     Alaskans for Efficient Gov't, Inc. v. State , 153 P.3d 296, 298 (Alaska 2007).  



           13  

                                                                           

                     Schweitzer v. Salamatof Air Park Subdivision Owners, Inc., 308 P.3d 1142,  

                                                                                        

1147  (Alaska  2013)  (quoting Guin  v.  Ha,  591  P.2d  1281,  1284  n.6  (Alaska  1979))  

                                                                                                                     (continued...)  



                                                                   -6-                                                             6938
  


----------------------- Page 7-----------------------

                                                                                                                  14 

                                                                                                   

statute . . . is a question of law to which we apply our independent judgment,"                                      "taking  



into  account  the  plain  meaning  and  purpose  of  the  law  as  well  as  the  intent  of  the  

drafters."15  



IV.       DISCUSSION  



                                                                              

                    There are three main issues on appeal:  (1) whether Kruse's constitutional  



challenge  is  moot;  (2)  whether  AS  22.15.195  is  constitutional;  and  (3)  whether  



                                                                                                              

AS 22.15.195 prohibits the Council from releasing new information in the 60 days prior  



to a retention election.  Kruse also appeals the superior court's denial of her motion for  



attorney's fees.  



          A.        The Constitutional Claims Are Not Moot.  



                                                                                                                    

                    The Council argues that the superior court erred by reaching the merits of  



                                                                                      

AS 22.15.195's constitutionality and scope. The Council believes these issues are moot  



because they "were rooted in the [Council]'s allegedly misleading communications about  



                                                                                                             

[the judge] in particular."  In response, Kruse argues that the controversy "continues to  



                                                   

flourish" because Kruse's "claims . . . were much broader than the [Council] contend[s]."  



                    We will not consider claims "where events have rendered the legal issue  



          16  

                                                                         

moot."        A claim can be moot either because "it has lost its character as a present, live  



          13(...continued)  



(internal quotation marks omitted).  



          14        West v. State, Bd. of Game, 248 P.3d 689, 694 (Alaska 2010) (citing                               Parson  



v.  State,  Dep't  of  Revenue,  Alaska  Hous.  Fin.  Corp.,  189  P.3d   1032,  1036  (Alaska  

2008)).  



          15        Native Vill. of Elim v. State , 990 P.2d 1, 5 (Alaska 1999) (citing Alaska  



Wildlife Alliance v. Rue, 948 P.2d 976, 979 (Alaska 1997)).  



          16  

                                                                                                   

                    Mullins v. Local Boundary Comm'n , 226 P.3d 1012, 1017 (Alaska 2010)
  

                                                                                                   

(quoting Kodiak Seafood Processors Ass'n v. State , 900 P.2d 1191, 1195 (Alaska 1995))
  

                                                                                                            (continued...)
  



                                                              -7-                                                        6938
  


----------------------- Page 8-----------------------

                                                                                              

controversy," or because "the party bringing the action would not be entitled to any relief  



                           17  

                                                                                                            

even if it prevails."          A court may "declare the rights and legal relations of an interested  



                                                                                     18  

party," but only "[i]n [the] case of an actual controversy."                             In order to be an "actual  



controversy," the controversy "must be a real and substantial controversy admitting of  



specific  relief  through  a  decree  of  a  conclusive  character,  as  distinguished  from  an  



                                                                                                             19  

opinion advising what the law would be upon a hypothetical state of facts."                                      We have  



noted that "[m]ootness is particularly important in a case seeking a declaratory judgment  

                                     

because there is an added risk that the party is seeking an advisory opinion."20  



                   Claims  for  declaratory  relief  are  commonly  moot  when  the  statute  or  



regulation  at  issue  is  no  longer  in  effect  or  has  been  amended.    In  Kodiak  Seafood  



                                          

Processors Association , the Commissioner of the Alaska Department of Fish and Game  



                                                                                              

issued a permit allowing exploratory scallop fishing in an area of Kodiak previously  



                                     21  

closed to scallop fishing.               The Kodiak Seafood Processors Association brought suit  



requesting a declaration that the Commissioner had exceeded his authority, but, before  



          16(...continued)  



(internal quotation marks omitted).  



          17       Id. (quoting  Ulmer v. Alaska Rest. & Beverage Ass'n, 33 P.3d 773, 776                        



(Alaska 2001)) (internal quotation marks omitted).  



          18       AS 22.10.020(g).  



          19       Jefferson v. Asplund , 458 P.2d 995, 999 (Alaska 1969).  



          20       Kodiak Seafood Processors Ass'n , 900 P.2d at 1195; Ahtna Tene Nene v.  

                                                                                     

State,  Dep't  of  Fish  &  Game,  288  P.3d  452,  457-58  (Alaska  2012)  ("Even  in  a  

declaratory judgment case . . . where the rights or obligations of parties are delineated  

                  

by  the  court,  courts  should  avoid  becoming  involved  in  premature  adjudication  of  

      

disputes that are uncertain to occur." (quoting Ulmer, 33 P.3d at 776) (internal quotation  

marks omitted)).  



          21       Kodiak Seafood Processors Ass'n , 900 P.2d at 1193.  



                                                             -8-                                                      6938
  


----------------------- Page 9-----------------------

                                                                            22  

the court could hear the case, the permit expired.                               We held that the question whether  



                                                                                                              23  

the Commissioner had exceeded his authority was "technically moot."      Similarly, in  



Vanek v. State, Board of Fisheries, commercial salmon fishers challenged a Board of  



                                                 24  

                                                                          

Fisheries regulation as a taking.                    We held that the issue was "likely . . . moot" because  

"the challenged board regulations ha[d] been amended."25  



                                                                                                  

                     Unlike those cases, AS 22.15.195 is still in effect and in the same form as  



at  the  start  of  this  litigation.    Moreover,  Kruse  did  not  frame  her  fourth  cause  of  



                                                                                          

action - the constitutionality of AS 22.15.195 - in terms of the specific judge.  Instead,  



                                                                                                                           

Kruse asked for declaratory relief that AS 22.15.195 is "unconstitutional to the extent it  



directs  the  Alaska  Judicial  Council  to  make  recommendations  concerning  judicial  



retention."  The Council's argument that "[a]t its core, this case was an election contest"  



                                                                                                  

is incorrect; the controversy is broader than the specific judge's election.  The parties are  



                                                                                                   

adverse,  and  we  are  able  to  grant  relief  in  the  form  of  a  declaration  on  the  



constitutionality of AS 22.15.195.  Thus, Kruse's constitutional claims are not moot.  



                                                                                                                    

          B.	        The Superior Court Did Not Err By Concluding That AS 22.15.195 Is  

                     Constitutional.  



                     Alaska Statute 22.15.195 provides that  "[t]he judicial council . . . may  



                                                                                                                   

provide a recommendation regarding retention or rejection." Kruse argues that allowing  



a  state  agency  to  take  a  "biased  position  on  any  ballot  measure"  "stifles  the  very  



          22	       Id. at 1193-95.  



          23        Id. at 1196; see also Alaska Cmty. Action on Toxics v. Hartig                               , 321 P.3d 360,   



366   (Alaska  2014); Ahtna   Tene  Nene,  288  P.3d  at  458  (holding  that  a  request  for  

declaratory relief was moot because the challenged regulation   was amended and no  

longer operative).  



          24         Vanek v. State, Bd. of Fisheries, 193 P.3d 283, 286 (Alaska 2008).  



          25        Id . at 287.  



                                                                 -9-	                                                         6938
  


----------------------- Page 10-----------------------

foundation of democracy."  As the party challenging the constitutionality of this statute,  



                                                                                                                     26  

                                                                                                                          In addition to  

Kruse bears the burden of "demonstrating the constitutional violation." 



overcoming "a presumption of constitutionality," the challenging party must counter  

"every conceivable basis which might support [the statute]."27  



                      Kruse argues that AS 22.15.195 is unconstitutional, but in her 37-page brief  



                                                                                                       

she fails to cite what provisions of the Alaska Constitution conflict with the statute.  



                                                                                                                 

Kruse cites no Alaska cases, and the cases from other states that she does cite only  



                                                                                                                               

establish that a public agency's election recommendation is improper in the absence of  



                                                    28  

                                                                                                                         

an explicit legislative directive.                      As the Council has an explicit grant of authority from  



the Alaska Legislature to make recommendations, these cases are inapplicable.  Kruse  



advances   no   other   legal   authority   demonstrating   why   AS   22.15.195   might   be  



                                                                 

unconstitutional; thus she has failed to meet her heavy burden.  While reasonable people  



                                                                                                                                  

may  disagree  whether  it  is  good  public  policy  to  authorize  a  state  agency  to  make  



                                                                                                       

recommendations to the public on how the public should vote, we defer to the legislature  



to make this policy decision because the Alaska Constitution vests broad power in the  



           26         State, Dep't of Revenue v. Andrade                        , 23 P.3d 58, 71 (Alaska 2001) (quoting   



Baxley v. State , 958 P.2d 422, 428 (Alaska 1998)).  



           27         Id . (quoting Katmailand, Inc. v. Lake & Peninsula Borough , 904 P.2d 397,  



401 (Alaska 1995)) (internal quotation marks omitted).  



           28         See, e.g., Stanson v. Mott, 551 P.2d 1, 3 (Cal. 1976) (en banc) ("[A]t least  

                                                                                                                    

in the absence of clear and explicit legislative authorization, a public agency may not  

expend public funds to promote a partisan position in an election campaign."); Citizens  

                                                                                               

to Protect Pub. Funds v. Bd. of Educ. of Parsippany-Troy Hills Twp., 98 A.2d 673, 677  

                                       

(N.J. 1953) (holding that the power to issue a pamphlet advocating one position was "not  

                                                                                           

within the implied power [of the board of education] and is not lawful in the absence of  

                                                       

express authority from the Legislature"); Stern v. Kramarsky, 375 N.Y.S.2d 235, 236-37  

                                                                                                      

(N.Y.  1975)  ("Neither  the  language  of  the  statutory  authority  .  .  .  nor  the  statutory  

scheme . . . contemplates administrative agencies engaging in promotional activities.").  

                                                                                                   



                                                                     -10-                                                               6938
  


----------------------- Page 11-----------------------

                                                        29  

                                                                                                             

legislature with regard to the Council.                    We hold that AS 22.15.195 does not violate the  



Alaska Constitution.  



          C.	       The Council Did Not Exceed Its Statutory Authority By Advertising  

                    Or  Disseminating  New  Information  In  The  60  Days  Prior  To  An  

                    Election.  



                                                                         

                    Kruse also argues that the Council engaged in unauthorized activity when  



                                                                               

it advertised its recommendations and released new information to the public in the 60  



                                                                                                                          

days prior to the retention election.  The Council counters that the plain language of the  



statute and its legislative history do not support reading in a restriction on either the  



means or the time frame in which the Council's information and recommendations are  



transmitted to the voters.  The superior court determined that under AS 22.15.195 the  



                                                                                

Council could disseminate information in any way it saw fit but it could not release any  



new information in the 60 days prior to the election.  



                                                                                         

                    We begin by interpreting AS 22.15.195. This requires that we examine the  



                                                                                     30  

                                                                                                                          

language of the statute "construed in light of its purpose."                            We aim to give effect to the  



                    

legislature's intent while taking into consideration "the meaning the statutory language  



                                                                                     31  

                                                                                         We use a sliding scale on  

conveys to others" - the plain meaning of the statute. 



matters of statutory interpretation:  "the plainer the language of the statute, the more  



                                                                           32  

convincing  contrary  legislative  history  must  be."                            We  give  weight  to  an  agency's  



          29	       See Alaska Const. art. IV,  9.  



          30        Beck v. State, Dep't. of Transp. & Pub. Facilities , 837 P.2d 105, 116-17  



(Alaska 1992) (citing  Vail v. Coffman Eng'rs, Inc., 778 P.2d 211, 213 (Alaska 1989)).  

              



          31  

                                                                                                     

                    Alyeska Pipeline Serv. Co. v. DeShong , 77 P.3d 1227, 1234 (Alaska 2003)  

                          

(quoting Muller v. BP Exploration (Alaska) Inc. , 923 P.2d 783, 787 (Alaska 1996))  

(internal quotation marks omitted).  



          32  

                                                                                                  

                    Marathon Oil Co. v. State, Dep't of Natural Res. , 254 P.3d 1078, 1082  

                                                                                                             (continued...)  



                                                             -11-	                                                           6938  


----------------------- Page 12-----------------------

                                                                                 33  

longstanding  and  continuous  interpretation  of  a  statute.                         A  longstanding  agency  

interpretation may also be viewed as legislative acquiescence to that interpretation.34  



                   1.	      The Council's chosen means of disseminating information did  

                            not exceed its statutory authority.  



                   Alaska  Statute  22.15.195  mandates  that  "[t]he  information  and  the  



                                                                     

recommendation shall be made public at least 60 days before the 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."  The purpose of  



                                                              

AS 22.15.195 is to "allow the [Council] to inform the public of relevant information"  



concerning the judges standing for retention election.  



                   Kruse  argues  that  the  Council's  "virile  partisan  activity"  exceeds  the  



authority  granted  by  AS  22.15.195,  directing  her  arguments  towards  the  Council's  



         32(...continued)  



(Alaska 2011) (quoting Alaskans For Efficient Gov't, Inc. v. Knowles , 91 P.3d 273, 275  

                                                                                                  

(Alaska 2004)) (internal quotation marks omitted).  



         33        See, e.g., Bartley v. State, Dep't of Admin., Teacher's Ret. Bd. , 110 P.3d  



1254,      1261      (Alaska      2005)      (finding      the    agency      interpretation        guiding      when  

longstanding); Storrs v. State Med. Bd., 664 P.2d 547, 552 (Alaska 1983) (holding that  

                                          

a "statutory construction adopted by those responsible for administering a statute should  

                                                    

not be overruled in the absence of 'weighty reasons' " (quoting Kelly v. Zamarello , 486  

                                                 

P.2d 906, 911 (Alaska 1971))); Nat'l Bank of Alaska v. State, Dep't of Revenue , 642 P.2d  

                                                                                             

811,  815-16  (Alaska  1982)  (court  should  give  weight  under  independent  judgment  

standard to longstanding agency interpretation); 2B NORMAN J.   SINGER ,   SUTHERLAND  



ON                                                                 

     STATUTES AND STATUTORY CONSTRUCTION  49:04, at 77-78 (7th ed. 2012) (courts  

should give weight to longstanding statutory construction).  



         34        See Twenty-Eight (28) Members of Oil, Chem. & Atomic Workers Union,             



Local  No.  1-1978   v.  Emp't  Sec.  Div.  of  Alaska  Dep't  of  Labor ,  659  P.2d  583,  589  

(Alaska       1983)     ("[T]he      legislature's       acquiescence        in    [the]    formerly      consistent  

interpretation . . . indicates that the legislature intended [the statute] to be interpreted  

under the majority rule.").  



                                                         -12-	                                                   6938
  


----------------------- Page 13-----------------------

opinion piece, radio segment, and use of a well-known spokesperson.  But Kruse fails  



                 

to engage in any statutory interpretation or present any legislative history in support of  



                                              

her arguments.  The superior court concluded that AS 22.15.195 requires the Council to  



                                             

independently advertise the information it gathers and evaluates because the Council is  



required  to  publish  the  information  60  days  before  an  election,  but  the  election  

pamphlet35 circulated to the voters is published only 22 days before an election.  



                     Alaska  Statute  22.15.195  neither  prescribes  nor  proscribes  how  the  



"information and recommendation" must be released. But because the "information and  

                                                                                                        



recommendation"  must  be  released  before  the  election  pamphlet  is  distributed,  the  

                                                                                                              



legislature must have envisioned it would be disseminated in some way other than in the  

                          



election pamphlet.  We find persuasive  the superior court's reasoning on this point.  

                                                                 



Moreover, in order for the Council to be effective in its public information purpose, the  

                                                                              

information from the Council's evaluations must be disseminated as widely as possible.36  

                                                                            



          35         The election pamphlet is circulated to each registered voter's household and  



is  also  available  online.    It  includes  information  on  the  candidates  and  the  ballot  

                                                                                 

measures  presented.  Official  Election  Pamphlets,  STATE  OF  ALASKA ,   DIVISION  OF  



                    

ELECTIONS , http://www.elections.alaska.gov/pub_oep.php (last visited July 21, 2014).  



          36         See, e.g., Seth S. Andersen, Judicial Retention Evaluation Programs , 34  



L 

                       

  OY . L.A.  L.  REV .  1375,  1386  (2001)  ("Colorado's   experience  should  serve  as  a  

cautionary tale to other states - sufficient funds for dissemination of results must be a     

precondition for establishing a retention evaluation program."); see also   Transparent  

Courthouse:  A  Blueprint  for  Judicial  Performance  Evaluation,  INSTITUTE   FOR  THE  



                                                            

ADVANCEMENT                OF    THE   AMERICAN             LEGAL        SYSTEM ,    8,   10   (2006),  available   at  

http://iaals.du.edu/images/wygwam/documents/publications/TCQ_Blueprint_JPE200  

6.pdf ("To serve the purpose of educating and informing the electorate, the commission's  

                                                                

conclusions must be widely disseminated. A commitment to public judicial performance  

                                                                                          

evaluation  involves  a  concomitant  commitment  to  assuring  that  the  results  are  

widely         known:          by      the      use      of     websites,          press       coverage[,]           and      even  

                                                                                             

advertisements.");   Guidelines   for   the   Evaluation   of   Judicial   Performance   with  

Commentary,  app.  1,  AMERICAN    BAR   ASSOCIATION,  4  (Feb.  2005),  available  at  

                                                                                                                 (continued...)  



                                                                -13-                                                          6938
  


----------------------- Page 14-----------------------

Because the purpose of AS 22.15.195 is to "allow the [Council] to inform the public of  

                               



relevant information," the Council must be allowed to do so in the most effective way,  

                                                              



within any limits established by the legislature.  Here, AS 22.15.195 contains no such  



limits.  



                                                           

                   The fact that Kruse does not agree with the method the Council has chosen  



                                                                                                       

to disseminate the information does not make its choice unconstitutional or violative of  



                                                                                                   

the Council's authorizing statutes.  Under the plain statutory language before us, and in  

                                                               37 we cannot say that the Council's method  

                                                                                                  

the absence of any contrary legislative history, 



of advertisement exceeded the authority granted by the statute.  



                   2.	      The      Council       did    not     exceed      its   statutory        authority        by  

                            disseminating new information within 60 days of an election.  



                   The   Council   argues           that    the    superior      court     erred   by   construing  



AS 22.15.195 to disallow publication of new information within 60 days of an election.  

                                                                                                          



It  contends  that  no  limitations  exist  in  the  plain  language  of  the  statute,  and  the  



legislature's primary objective was to "increase the flow of information to ensure that  



voters could make informed decisions at the ballot box."  Kruse again argues that the  



Council's  "virile  partisan  activity"  is  improper,  but  again  she  provides  no  statutory  



analysis to support her argument.  



         36(...continued)  



http://www.americanbar.org/content/dam/aba/publications/judicial_division/aba_blac  

kletterguidelines_jpe_wcom.authcheckdam.pdf   ("In   states   where   judges   must   be  

reelected   or   retained   by   the   voters,   performance   evaluation   results   should   be  

disseminated as widely as possible, including by mail, on the Internet, in state and local  

                                                                             

newspapers, and/or in public facilities such as libraries and courthouses.").  



         37        See infra notes 40-43 and accompanying text.  



                                                          -14-	                                                   6938
  


----------------------- Page 15-----------------------

                                                                                              

                    Under AS 22.15.195, "[t]he information and the recommendation shall be  



                                                                            38  

                                                                                The plain meaning of the statute  

made public at least 60 days before the election." 



mandates that the Council release its recommendation and its evaluation of the judge at  



                                                                                                           

least 60 days prior to the election.  The statute does not impose further requirements or  



restrictions.    The  statute  does  not  distinguish  between  old  and  new  information,  or  



discuss the time frame in which each type must be published; it simply states that the  



                                                                                                      

Council must publish its information and recommendation at least 60 days prior to the  



                                                                    

election.  Kruse  has  failed  to  provide  any  statutory  analysis  that  would  support  a  



prohibition from disseminating new information in the 60 days preceding an election.  



                    Moreover, the Council's interpretation is longstanding and continuous.  The  



                                                                           

Council has frequently requested funds from the legislature to advertise in the 60 days  



before an election, and the record shows that the majority of the time this has included  



                                                                  

advertising new information.  From this we conclude that the legislature itself interprets  



                                                                            

AS 22.15.195 as permitting the Council to provide the public with additional information  



within the 60 days prior to an election.  



                    Because the plain meaning of the statute does not support a distinction  



                                                                                                                       

between old and new information, legislative history must be convincing to reach a  



                       39  

                                  

contrary result.           But the legislative history is extremely scant.  In April 1975 Judicial  



                                                                                                               

Council  staff  testified  before  the  House  Judiciary  Committee,  asking  for  "specific  



statutory authority to evaluate judges' qualifications and convey this information and  



                                                40  

                                                                       

recommendation to the public."                      House Bill 384 was drafted to give the Council the  



          38        AS 22.15.195.  



          39        Marathon Oil Co. v. State, Dep't of Natural Res.                            ,   254 P.3d 1078, 1082  



(Alaska 2011).  



          40        H. Judiciary Comm., Statement for H.B. 384, 9th Leg., 1st Sess., available  



                                                                                                              (continued...)  



                                                              -15-                                                         6938
  


----------------------- Page 16-----------------------

specific authorization it asked for. The Bill was read for the first time on April 7, 1975,41  

                                                          



and, after further legislative consideration without any recorded discussion, was signed  

                                                                           



                                                                        42  

into  law  eight  weeks  later,  on  May  21,  1975.                          In  1980  the  legislature  amended  

                                                         



AS 22.15.195 to require that the Council's information and recommendations be made  

                                                                

public 60 days before the election, instead of 30 days before.43  



                    The superior court concluded that the change from 30 to 60 days was meant  

                                                                                      



to "give judges more time to contemplate resignation [instead of standing for] retention  

                                



election  or  to  mount  an  opposition  to  the  council's  recommendation."    The  court's  



conclusion was based on a legislative staffer's memorandum asking that the Bill be  



                                                                  44  

amended  to  read  "90  days  instead  of  60."                         But  the  staffer's  suggestion  was  not  



             45  

adopted,        indicating that the legislature did not share this view.  The staffer's unadopted  

                                      

recommendation does not rise to the level of "convincing contrary legislative history."46  

                                                 



For these reasons it was error for the court to construe AS 22.15.195 to prohibit the  

                                                                                          



          40(...continued)  



at Alaska Leg. Microfiche Collection No. 227; ch. 87,  3, SLA 1975.  



          41        1975 House Journal 675, 680.  



          42        Ch. 87, SLA 1975.  



          43        Ch. 12,  13, SLA 1980.  



          44        Memo   from   Peggy   Berck,   Staffer,   to   Representative    Charlie   Parr,  



Chairman, 11th Leg., 2d Sess., available at Alaska Leg. Microfiche Collection No. 962.  



          45        AS 22.15.195 (requiring dissemination 60 days prior to election instead of  

                                                                                                  

90).  



          46       Marathon Oil Co. v. State, Dep't of Natural Res. , 254 P.3d 1078, 1082  



(Alaska 2011) (quoting Alaskans For Efficient Gov't, Inc. v. Knowles , 91 P.3d 273, 275  

(Alaska 2004)) (internal quotation marks omitted).  



                                                             -16-                                                       6938
  


----------------------- Page 17-----------------------

Council from disseminating new information within 60 days of an election.  Therefore,     



the court's injunction must be vacated.  



          D.         The Attorney's Fee Decision Must Be Remanded.  



                     The superior court did not award attorney's fees because it concluded:  "[I]t   



is    inappropriate          to    award       attorney's         fees     on    Plaintiff's        constitutional          claim,  



                                               

and . . . neither the [Council] nor [Kruse] can be considered the 'prevailing party' for  



purposes of awarding attorney's fees [under Rule 82]."  Kruse argues that this ruling was  



error.      Because   we   reverse   the   superior   court's   order   on   the   construction   of  



                                                                                                                 

AS  22.15.195,  we  remand  the  attorney's  fees  issue  to  the  superior  court  for  its  



reconsideration.  



 V.       CONCLUSION  



                                                                                        

                     We AFFIRM the superior court's decision regarding the constitutionality  



                                                                                                              

of  AS  22.15.195  and  the  Council's  statutory  authority  to  make  and  disseminate  its  



recommendation  to  the  electorate.    We  REVERSE  the  superior  court's  statutory  



                                                                                         

construction limiting the Council's dissemination of new information within 60 days of  



the  election.    We  VACATE  the  superior  court's  injunction  and  REMAND  for  



reconsideration of the attorney's fees issue.  



                                                               -17-                                                          6938
  

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