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Peloza v. Freas (3/25/94), 871 P 2d 687
NOTICE: This opinion is subject to formal 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,
THE SUPREME COURT OF THE STATE OF ALASKA
STEVEN J. PELOZA, ) Supreme Court No. S-4772/4796
Appellant/Cross-Appellee,) Superior Court No.
) 3KN-91-695 CI
) O P I N I O N
CAROL L. FREAS, City Clerk, )
) [No. 4067 - March 25, 1994]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Charles K. Cranston, Judge.
Appearances: Steven J. Peloza, pro se,
Anchorage. Cary R. Graves, City Attorney,
Kenai, for Appellee/Cross-Appellant.
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices.
This appeal concerns a challenge to the
constitutionality of Kenai City Charter Section 2-1(b), which
imposes a three-year durational residency requirement for
candidacy for the office of city council. Section 2-1(b) of the
Kenai City Charter provides:
Only qualified voters of the city who,
at the time of their election or choice to
fill a vacancy, are at least twenty-one years
old, and have resided within the City for
three years, one year of which must have been
immediately prior thereto, shall be qualified
for the offices of Mayor and other
councilmen. If a councilman ceases to be a
resident of this City, he shall thereupon
cease to hold office.
I. FACTS AND PROCEEDINGS
In August of 1991, appellant Steven Peloza, a two-year
resident of the City of Kenai, attempted to file a nominating
petition for a seat on the Kenai City Council. Carol Freas, the
Kenai City Clerk, examined the nominating petition and
ascertained that a portion of the petition had been marked out.
Peloza had deleted from the petition the portion that would have
stated that he met the three-year residency requirement imposed
by the Kenai City Charter. Freas informed Peloza that his
petition was "facially incomplete"and refused to accept it.
Peloza then filed a complaint and "Ex Parte Request for
Writ of Mandate"in the superior court. He sought a declaration
that Section 2-1(b) is unconstitutional and an order directing
Freas to place his name on the official ballot. The superior
court upheld the constitutionality of the charter provision and
dismissed Peloza's complaint. Peloza now brings this appeal.
The primary issue in this appeal is whether the three-
year durational residency requirement for city council candidates
imposed by section 2-1(b) is constitutional. Before addressing
the merits of this question we discuss two preliminary issues.
We generally refrain from deciding legal questions that
the facts of a case have rendered moot. Falke v. State, 717 P.2d
369, 371 (Alaska 1986). Because the 1991 City of Kenai election
for council seats is over and Peloza no longer resides in Kenai,
Freas urges this court to consider the question of the
constitutionality of Section 2-1(b) under the public interest
exception to the mootness doctrine. The criteria we look to in
determining whether to apply that exception are
1) whether the disputed issues are
capable of repetition, 2) whether the
mootness doctrine, if applied, may repeatedly
circumvent review of the issues and, 3)
whether the issues presented are so important
to the public interest as to justify
overriding the mootness doctrine.
Falke, 717 P.2d at 371 (quoting Hayes v. Charney, 693 P.2d 831,
834 (Alaska 1985)) (citations omitted).
We agree with Freas that this case falls within the
public interest exception to the mootness doctrine. First, the
issue is capable of repetition, although it is unlikely to recur
between the parties. Second, there is a strong likelihood that
application of the mootness doctrine may repeatedly frustrate
review. Third, we view the question of the constitutionality of
the three-year residency requirement for local elections as one
of such public importance that it justifies overriding the
B. Failure to Join an Indispensable Party Under
Civil Rule 19
Before the superior court, Freas moved pursuant to
Civil Rule 12(b)(7) to dismiss Peloza's complaint on the ground
that he failed to join the City of Kenai, an indispensable party
under Civil Rule 19.1 In State, Dep't of Highways v. Crosby, 410
P.2d 724, 725-26 (Alaska 1966), we discussed the test for
determining when a party is indispensable:
An indispensable party is one whose
interest in the controversy before the court
is such that the court cannot render an
equitable judgment without having
jurisdiction over such party. The
determination of indispensability or lack of
it involves a discretionary balancing of
interests. On the one hand, consideration
must be given to the possibility of rendering
a judgment that will have an adverse factual
effect on the interests of persons not before
the court, and to the danger of inconsistent
decisions, the desire to avoid a multiplicity
of actions, and a reluctance to enter a
judgment that will not end the litigation.
On the other hand, consideration must be
given to the desirability of having some
adjudication if at all possible rather than
none, leaving the parties before the court
without a remedy because of an "ideal desire
to have all interested persons before the
court." Courts exist for the determination
of disputes, and they have an obligation in
particular litigation to make meaningful
determinations if at all possible.
We are not persuaded that the City of Kenai is an
indispensable party under the Crosby test. It cannot be fairly
said that the interests of the City of Kenai were not adequately
represented before the superior court. The Kenai city attorney
represented Freas, the city clerk, at all stages of the case at
bar. Thus, it appears that the City of Kenai perceived its
interests to be identical to those of Carol Freas in this
litigation. Even if we were to conclude that the City of Kenai
is an indispensable party and should have been joined, Peloza's
failure to do so does not warrant dismissal of his complaint and
consequent failure to make a meaningful determination of the
merits of this dispute. The appropriate remedy would be to order
that the City of Kenai be joined as a party.2
C. Constitutionality of Section 2-1(b) of the Kenai
In his pro se complaint and ex parte request for a
"Writ of Mandate," Peloza challenges the three-year residency
requirement imposed by Section 2-1(b) on the grounds that it
denied him equal protection of law by impermissibly burdening his
right to seek and hold public office, it unconstitutionally
burdened his right of travel,3 and it unconstitutionally limited
the ability of voters to participate in the electoral process.
Freas advanced two interests in support of the City of Kenai's
three-year residency requirement:
1) to allow the candidate sufficient
exposure to the constituents to allow them to
judge the candidate's character, knowledge
and reputation; and 2) to ensure that council
members are sufficiently familiar with the
community which they are to govern.
Although Peloza's pleadings and briefs emphasize
violations of the United States Constitution,4 we believe it
appropriate to analyze Section 2-1(b) of the Kenai City Charter
under the more demanding state equal rights provision, Article I,
section 1 of the Alaska Constitution.5 The federal equal
protection clause requires only rational-basis scrutiny of a law
like this one. See MacDonald v. City of Henderson, 818 F. Supp.
303, 305-06 (D. Nev. 1993) (surveying federal cases). Alaska's
equal rights clause, in contrast, requires much greater scrutiny.
See Alaska Pac. Assurance Co. v. Brown, 687 P.2d 264 (Alaska
Alaska law analyzes alleged violations of the equal
rights clause using a "sliding scale."When fundamental rights or
constitutionally suspect classifications are involved, we employ
heightened scrutiny. The rigor of the scrutiny determines what
the government must show:
As the level of scrutiny selected is
higher on the [sliding] scale, we require
that the asserted governmental interests be
relatively more compelling and that the
legislation's means-to-ends fit be
correspondingly closer. On the other hand,
if relaxed scrutiny is indicated, less
important governmental objectives will
suffice and a greater degree of over/or
underinclusiveness in the means-to-ends fit
will be tolerated.
State v. Ostrosky, 667 P.2d 1184, 1193 (Alaska 1983).6
Peloza's appeal raises a question of first impression:
whether a three-year residency requirement for local office is
constitutional under the equal protection clause of Alaska's
Constitution. Neither Gilbert v. State, 526 P.2d 1131 (Alaska
1974), nor Castner v. City of Homer, 598 P.2d 953 (Alaska 1979),
directly answers that question.
In Gilbert, we addressed a challenge to the
constitutionality of Article II, section 2 of the Alaska
Constitution and AS 15.25.030, which together conditioned
eligibility for candidacy to statewide legislative office upon
three years of residency in the state and one year in the
election district. After analysis of federal cases and our own
authority, we concluded that "the residency requirements of
Article II, Section 2 of the Alaska Constitution should be viewed
with strict judicial scrutiny." Gilbert, 526 P.2d at 1134. We
further concluded that the state had shown two compelling
First, the requirements are necessary to
permit exposure of the candidate to his
prospective constituents so they may judge
his character, knowledge and reputation.
Second, they are needed to ensure that
legislators are familiar with the diverse
character of the state where they will
participate in the lawmaking process.
Id. at 1134 (emphasis added).
Castner presented us with a challenge to the
constitutionality of Homer City Code Section 3-200.2, which
imposed a one-year durational residency requirement for candidacy
for city office. We assumed, without deciding, "that the right
to seek elective public office should be treated as fundamental
and subject to strict scrutiny." Castner, 598 P.2d at 955. In
affirming the superior court's decision upholding the
constitutionality of the one-year durational residency
requirement for candidacy for city office in Homer, we said,
There is sufficient authority from other
jurisdictions either to uphold or to strike
down the one year durational residency
requirement in the case at bar. In general,
the weight of authority is against longer
durational residency requirements for local
offices, but the authorities are fairly
evenly divided on the constitutionality of a
one year residency requirement. The courts
validating a one year durational residency
requirement have found compelling the
interests of affording greater voter
knowledge of candidates and greater candidate
knowledge of the needs of the constituency,
as we did in Gilbert v. State.
Id. at 955-56 (emphasis added) (footnotes omitted).
In the present case, given the importance of the right
to seek elective public office, the right to both interstate and
intrastate travel, and the right of qualified voters to cast
their votes effectively, we conclude that the three-year
durational residency requirement for candidacy for city office in
Kenai should be subjected to rigorous scrutiny under the sliding
scale we employ under the equal rights clause of the state
constitution.7 As noted above, when it is determined that a high
level of scrutiny is considered appropriate "we require that the
asserted governmental interests be relatively more compelling and
that the legislation's means-to-ends fit be correspondingly
closer." State v. Ostrosky, 667 P.2d 1184, 1193 (Alaska 1983).
Application of this test to the three-year durational residency
requirement for candidacy for local office leads us to the
conclusion that the Kenai Charter provision violates the equal
rights clause of the Alaska Constitution.
We are not persuaded that ensuring familiarity between
the electorate and candidates in a local election is sufficiently
compelling to outweigh the significant burden the charter
provision places on the fundamental rights at stake. And the
longer the candidate has been in the community, the weaker the
means-ends fit becomes. Three years is an unacceptably long time
to burden the right of local voters to make their own decisions.8
Section 2-1(b) of the Kenai City Charter is
incompatible with the equal rights clause of the state
constitution. The superior court's judgment upholding Section 2-
1(b)'s constitutionality is REVERSED.
1 Civil Rule 12(b)(7) provides that the defense of a
failure to join a party under Rule 19 may at the option of the
pleader be made by motion. Civil Rule 19(a) provides:
Persons to Be Joined if Feasible. A
person who is subject to service of process
and whose joinder will not deprive the court
of jurisdiction over the subject matter of
the action shall be joined as a party in the
action if (1) in his absence complete relief
cannot be accorded among those already
parties, or (2) he claims an interest
relating to the subject of the action and is
so situated that the disposition of the
action in his absence may (i) as a practical
matter impair or impede his ability to
protect that interest or (ii) leave any of
the persons already parties subject to a
substantial risk of incurring double,
multiple, or otherwise inconsistent
obligations by reason of his claimed
interest. If he has not been joined, the
court shall order that he be made a party.
If he should join as a plaintiff but refuses
to do so, he may be made a defendant, or, in
a proper case, an involuntary plaintiff. If
the joined party objects to venue and his
joinder would render the venue of the action
improper, he shall be dismissed from the
2 See B.B.P. Corp. v. Carroll, 760 P.2d 519, 526 (Alaska
1988). Freas asks that if we reverse the superior court's
holding that Section 2-1(b) is constitutional, we order dismissal
of the action pursuant to Civil Rule 19(b).
3 See generally Andrew C. Porter, Comment, Toward a
Constitutional Analysis of the Right to Interstate Travel, 86
N.W. L. Rev. 820 (1992) (tracing the development of the right in
the federal courts).
4 The Fourteenth Amendment to the United States
Constitution provides, "No state shall . . . deny to any person
within its jurisdiction the equal protection of the laws." U.S.
Const. amend XIV, 1, cl. 4.
5 SECTION 1. This constitution is
dedicated to the principles that all persons
have a natural right to life, liberty, the
pursuit of happiness, and the enjoyment of
the rewards of their own industry; that all
persons are equal and entitled to equal
rights, opportunities, and protection under
the law; and that all persons have
corresponding obligations to the people and
to the State.
6 In State v. Cosio, 858 P.2d 621, 626 (Alaska 1993), we
noted that analysis under the federal equal protection clause is
divided into three parts.
First, the United States Supreme Court
has reserved its most searching review--
strict scrutiny--for legal classifications
that burden suspect classes of individuals or
that burden a fundamental right. Only
classifications based on race, alienage, and
national origin merit strict scrutiny.
Strict scrutiny requires that the government
show that its law is narrowly tailored to the
achievement of a compelling government
interest. . . .
Second, the Supreme Court applies a
less searching form of review--intermediate
scrutiny--to legal classifications that
burden quasi-suspect classes. Thus far, the
Supreme Court has applied intermediate
scrutiny to classifications based on gender
and illegitimacy. . . . Under intermediate
scrutiny, the government must show that its
law bears a substantial relationship to an
important government interest. . . .
Third, the Supreme Court reviews
all other legal classifications under its
most deferential standard of review--rational
basis. Under rational basis review, the
government only need show that the challenged
law is rationally related to the attainment
of a legitimate state interest. . . .
7 Freas has asked us to re-examine the position we
adopted regarding the right to vote in Vogler v. Miller, 651 P.2d
1 (Alaska 1982). In Vogler we held that "It is well accepted
that in ballot access cases, the state must show a compelling
interest in order to justify infringements of these rights." Id.
at 3. We noted that "Both the right to vote and the right to
associate freely in pursuit of political beliefs are
fundamental." Id. We are not persuaded that Vogler should be
modified in any respect.
In regard to the right to seek public office, we need
not decide whether this right is "fundamental"; it is sufficient
for purposes of our analysis under Ostrosky that we deem this
right to be of extreme importance, one that approaches a
fundamental right classification.
Concerning the rights of both interstate and intrastate
travel, our decisions reflect the high degree of significance we
have accorded these rights and the concomitant degree of scrutiny
with which we have examined durational residency requirements
that burden these rights. Alaska Pac. Assurance Co. v. Brown,
687 P.2d 264 (Alaska 1984); Thomas v. Bailey, 595 P.2d 1, 16
(Alaska 1979) (Rabinowitz, J., concurring); Hicklin v. Orbeck,
565 P.2d 159, 162 (Alaska 1977), rev'd on other grounds, 437 U.S.
518 (1978); State v. Wylie, 516 P.2d 142, 146-47 (Alaska 1973);
State v. Van Dort, 502 P.2d 453, 454 (Alaska 1972).
8 We are inclined to consider problematic any period
longer than one year. Other jurisdictions have generally viewed
with skepticism durational residency requirements of longer than
one year for local elections. See Alexander v. Kammer, 363 F.
Supp. 324 (E.D. Mich. 1973) (five year city residency and two
year district residency for city commissioner); Wellford v.
Battaglia, 343 F. Supp. 143 (D. Del. 1972), aff'd, 485 F.2d 1151
(3rd Cir. 1973) (five years for mayor); McKinney v. Kaminsky, 340
F. Supp. 289 (M.D. Ala. 1972) (five years for county
commissioner); Bolanowski v. Raich, 330 F. Supp. 724 (E.D. Mich.
1971) (three years for mayor); Thompson v. Mellon, 507 P.2d 628
(Cal. 1973) (two years for city council); Zeilenga v. Nelson, 484
P.2d 578 (Cal. 1971) (five years for county supervisor); Camara
v. Mellon, 484 P.2d 577 (Cal. 1971) (three years for city
council); Bay Area Women's Coalition v. City & County of San
Francisco, 144 Cal. Rptr. 591 (Cal App. 1978) (five years for
city board or commission); Cowan v. City of Aspen, 509 P.2d 1269
(Colo. 1973) (three years for municipal offices); Bird v. City of
Colorado Springs, 507 P.2d 1099 (Colo. 1973) (five years for city
councilman and mayor); Board of Comm'ns of Sarasota County v.
Gustafson, 616 So.2d 1165 (Fla. App. 1993) (county sheriff). But
see Langmeyer v. State, 656 P.2d 114 (Idaho 1982) (five-year
requirement for county planning & zoning commission had rational
basis); State ex rel. Brown v. Summit County Bd. of Elections,
545 N.E.2d 1256 (Ohio 1989) (two-year requirement for city
council had rational basis).
One year requirements have generally survived constitu
tional scrutiny. See City of Akron v. Bell, 660 F.2d 166 (6th
Cir. 1981) (city council); MacDonald v. City of Henderson, 818 F.
Supp. 303 (D. Nev. 1993) (city council); Joseph v. City of
Birmingham, 510 F. Supp. 1319 (E.D. Mich 1981) (city
commissioner); Civil Serv. Merit Bd. of Knoxville v. Burson, 816
S.W.2d 725 (Tenn. 1991) (municipal civil service board
candidates); White v. Manchin, 318 S.E.2d 470 (W. Va. 1984)
(state senator). But see Bruno v. Civil Serv. Comm'n of
Bridgeport, 472 A.2d 328 (Conn. 1984) (one-year requirement for
recreational supervisor candidates failed strict scrutiny).