State v. Jeffery

unlikely to particularly threat and would rights improperly if their

seek redress

chilled. factors,

Considering as well as the I think that problem,

systemic nature that a compelling reasons believe

there are chilling danger of a effect does realistic exist. I would therefore conclude

fact the initiative in its

unless the court strikes

entirety, and decide the re- it must review

maining claims now. overbreadth

III. CONCLUSION carefully crafted the initiative was

Because entirety impermissibly prohibit I hold right speech, to free would

chill the invalid in its entire-

that it must be declared ruling

ty. Although agree I with the court's unconstitutional, I dissent

that section .820 that the rest of the initiative

from its decision

can be saved. Glaiser, of Alaska and Laura

STATE

Director of the Division of

Elections, Appellants,

v. Nancy I.

Michael JEFFERY

Nolan, Appellees.

No. S-12101.

Supreme of Alaska. Court

Nov. passed. The Division of

Elections determined both superi- ineligible to stand for retention. ultimately concluded that the divi- or court making had abused its discretion sion because the had sub- determination stantially complied filing require- the divi- ments. Because we conclude supported sion's determination was law, in we facts and had reasonable basis judges to vacate their reverse and order the opinion ninety days after this seats within 507(b). per Appellate Rule takes effect easy sympathetic It and natural to be to given appellees, both the harshness outstanding appellees' the result and the ree- judges, public ord for service as but compelled by unambiguous outcome here is statutes. I. AND PROCEEDINGS FACTS Grace, Attorney M. Assistant Gen- Joanne judges wishing Alaska to retain their of eral, Mirquez, At- Anchorage, and David W. periodically fices stand for retention.1 The General, Juneau,

torney Appellants. for (the council) is the Alaska Judicial Council Katcher, Katcher, Pope An- Jonathon A. & agency charged evaluating judges with seek Jeffery. chorage, Appellee Michael I. ing providing retention and with Sanders, judges.2 information In Novem Orlansky & about Eric T. Feldman Sanders, Anchorage, Appellee No- began ber 2003 the council the evaluation Naney possible for all 2004 retention candi lan. process . by sending questionnaires to dates each MATTHEWS, EASTAUGH, Before: potentially the twelve who were re BRYNER, CARPENETI, Justices. quired to in the 2004 stand retention general questionnaires election. The re OPINION quested background certain information they judges, types such as of cases EASTAUGH, Justice. previous had handled term of office I. INTRODUCTION they any legal and whether were involved disciplinary Superior question presented here is whether or matters. Both Judge Jeffery I. sitting judges complied Alaska with AS Court Michael and District two .110, require Judge Naney Nolan promptly 15.85.070 and which Court returned seeking completed questionnaires to the council. office to file "declara- required candidacy for retention" the Two of the other ten tions they for retentionin 2004if wishedto Alaska Division of Elections "no later stand judgeships not return the August 1." The two filed their decla- retain their did questionnaires and informed the council ration of forms after the IV, ("[elach riodically] subject approval rejection"); supreme § be 1. Alaska Const. art. or shall, ("[eJach justice superior judge [peri- court court AS 15.35.100 district shall provided by subject ap- manner be rejection"). odically] subject approval be or ("[elach rejection"); proval or AS 15.35.030 su- justice [periodically] subject preme court shall be (regarding 2. AS 22.10.150 ("{elach rejection"); 15.35.053 AS approval (regarding judges); AS 22.15.195 district court [periodically] appeals of the court of shall judges). subject rejection"); approval ("[eJach superior [pe- shall 15.35.060 The letter stated that "I January form. stand for retention. would not these documents are late." He had realize began the evaluation the council retention, includ seeking August 16. On executed his declaration for the ten Jeffery Judge Judge Nolan. Nolan wrote a letter to the ing Judge enclosing her declaration of candida- division Elections the Division of June On cy "[tloday form. Her letter stated division) (the for the mail- asked the council my that I failed to came to attention candi- addresses Candidacy for file the Declaration of the 2004 them infor- could send so the division dates judicial retention election." She had execut- Pamphlet. Election about the Official mation August 19. In re- ed her declaration on day by e- replied that same The council Judge Jeffery sponse, the division informed for the ten mailing the divisionthe addresses it could not extend the deadline and informed Jeffery including Judge judges, place her Judge Nolan it name on would day, sent following the division Nolan. The ballot. judges reminding them of to the ten letters submitting 7 their August deadline judges separate then filed com- The two pamphlet. in for inclusion the voter materials declaratory seeking injunctive and re- plaints in two versions. division's letter came The sought temporary lief. Each and obtained Jeffery Judge Judge and The version sent preliminary injunction restraining order and introductory clause began Nolan put requiring the division to their names on yet "[allthough you have not filed accept ballot and to their submis- the 2004 retention," reminded them that and then pamphlet. for the election In the No- sions to file for "August 1 is the deadline 2004 election both were re- vember version, sent to retention." The other respective their electorates. tained retention, already filed for instead who had judges' consolidated and The cases were stated, "you retention." have filed for summary judgment. parties all moved for completed early July the council superior The court concluded because July 15 judges, the ten and on of evaluations substantially complied with judges had both retention and re it e-mailed division its statutory filing requirements the division in the jection for inclusion recommendations placing in not had abused its discretion July in pamphlet. This 15 e-mail election the ballot. names on recommendations re cluded the council's of Division The state and the Director Judge Jeffery Judge and No garding both appeal. of Elections council found both lan. Because the unani qualified, the council members to be

mously they both be ret III. STANDARDOF REVIEW recommended ained.3 superior court's We review filing judicial The deadline for novo, grant summary judgment of de draw for retention with declarations of, in and ing all factual inferences favor August 1.4 Neither the division was light most favorable viewing the facts candidacy with the divi filed a declaration of to, Questions non-prevailing party.5 re sion that date. interpretation application and garding the questions of law to which we Judge Jeffery wrote a letter a statute

On judgment.6 If the apply independent requesting an extension of the our to the division agency expertise, question of law involves enclosing and his declaration Judicial Council's retention 3. The scores on the P.3d State, Corr., v. 5. Lewis Dep't of consistently very high survey for both (Alaska 2006). 1268-69 judges. Judge Jeffery's average overall score Judge average overall score was 4.3 and Nolan's 1-6, Bishop v. Does N. Alaska Catholic was 4.4. 2006). (Alaska P.3d (regarding 4. AS 15.35.070 (regarding judges); AS 15.35.110 district judges). they

however, deadlines and hold apply the rational basis test we will August 1 substantially complied with the agency's interpretation and defer to filed their declaration of supported the facts and has deadline when long as "statutory mid-August. A con address law.7 forms We reasonable basis responsible arguments in turn. adopted struction administering should not be over a statute weighty in the absence of reasons."8

ruled 15 communi- June 8 cations between council interpret the Alaska Constitution We the division were "according Statutes to rea and the Alaska candidacy. declarations of sense, son, taking and common practicality, meaning purpose plain into account the superior court found that both the drafters." of the law as well as the intent of "supply the Division with a failed 9 candidacy." declaring their formal statement It concluded that nevertheless IV. DISCUSSION statutory filing obligation because met their Jeffery Judge Did A. Nolan filed with the Division documents "Itlhe Candidacy judges' performance Not File Declarations the context Statutory mandatory Deadline. constituted" substan other acts requirements tial of AS provides: Alaska 15.85.070 "[elach Statute appeal Judge and .110. Jef 15.35.070 On judge seeking in office shall file fery Judge argue that the Nolan do not candidacy of with the director a declaration communications the council sent to the two 1 August retention no than before later July merely 15 division on June 8 and sub general approval at or election which 10 stantially complied re with rejection requisite." Alaska Statute is quirements; they argue instead that provides: 15.35.110 district "[elach strictly complied communications seeking retention office shall file with the statutory requirements. candidacy reten director a declaration of August gener 1 before the tion no later than They argue that because the Election rejection approval al election at which is Code, Statutes, Title 15 of the Alaska does 11 requisite." The "director" means the "di candidacy," of we not define "declaration 12 The of Elec rector of elections." Division interpret phrase that must accordance Jeffery Judge concluded that failed to tions meaning. They argue with its commonsense comply Judge that with AS 15.35.070 and July 15 commu- further that the June 8 and comply with 15.35.110. Nolan failed the council and the division nications between question The here is whether that conclusion candidacy qualify as declarations of under is correct. this commonsense definition because arguments "clearly relayed to Divi- The raise two main communications First, strictly, appeal. they argue they that sion the fact that had told the just substantially, complied they personally and not with the Council that had declared August candidacy argu- 1 for retention." Their virtue of the June First, 15 between the ment contains two contentions. that 8 communications Alternatively, they "unambiguously council and the division. declared their candidacy" by completing the argue apply that we should the substantial to the council Second, questionnaire. that in its standard council's State, 1, Municipality 7. W. Prot. Co. v. An 9. Native Vill. Elim v. 990 P.2d 5 States Fire of of (Alaska 1999). (Alaska 2006) chorage, (citing 146 P.3d Pipe Tesoro Alaska Petroleum Co. v. Kenai Line 10. AS 15.35.070. Co., (Alaska 1987)). 746 P.2d 11. AS 15.35.110. Bd., v. State Med. Storrs (Alaska (internal omitted). 15.60.010(3). 1983) quotations 12. AS e-mails, in which will seek retenti "un- the district the council July 15 8 and June on,18 regard are silent [Judge the statutes that the Division ambiguously advised had stated their Jeffery Nolan] a must have to be substance what The for retention." intent to stand judge's "declaration of candida considered a two communications that the council's reason Cy.” candidacy" each because "declarations provided guid little legislature That in- requisite all the contained communication given as to formation. ance to division whether qualifies as a "declaration of communication Alaska Consti Judiciary Article of the candidacy" necessarily grants the division a every superior specifies that tution making degree certain of discretion subject to a retention vote judge shall be more than held general the first words, whether a In other determination. every years appointment three after statutory require given filing satisfies that a year It also states thereafter.13 sixth judge file with the director a ment that each vacant judge's office becomes superior court question is declaration for which the ninety days after an election expertise.19 the division's We will involves candidacy" to file a "declaration judge fails ques agency's interpretation an defer to The framers or herself.14 to succeed himself expertise so agency tion of law that involves "details of such left the of the constitution supported by long interpretation as the form and the time such as its declaration basis in law.20 facts and has reasonable filing" legislature.15 limits for its Here, the division did not consider the June 8 legislature established response, -July the council to 15 communications for declarations of requirements identical candidacy. declarations. judicial sys every at level judges argue judge must "file with the tem: each director this was an abuse of the concluded candidacyfor a declaration of division] [of But because its deter division's discretion. before the retention no later supported the facts and had mination was rejec approval at or general which 16 the division is a basis in reasonable legislature au requisite." tion is interpreta for both its entitled to deference place to on the ballot thorized the division applicable tion of the constitution and "properly filed a judges names of who application of the law to candidacy for retention."17 statutes and for declaration of presented this case. judges designate to the cireumstances requiring But other 15.35.100(a) IV, (regarding judges); district court § AS 15.35.110 6. AS 13. Alaska Const. art. judges). requirement imposes on district court the same provides judges, except that district court that it gener- judges in the first must stand for retention ('The eg., director shall See, AS 15.35.090 years after their held more than two al election judge superior has place of a court who the name year appointment every thereafter. fourth candidacy properly a of for re- filed declaration ("The ballot...."); AS 15.35.130 tention on the judge IV, ("The place name of a district any § director shall office of 14. Alaska Const. art. 7 judge justice superior properly of candida- supreme or court filed a declaration court who has ..."). cy on the ballot. ninety days the election at vacant after becomes voting rejected by majority a of those which he is question, his superior or for which he fails file (regarding on the court 18. AS 15.35.080 himself."); 15.35.100(b) to succeed (regarding declaration of judges); district AS 22.15.170(e) (applying conse- same see also AS judges). court quences who fail to file to district court candidacy). declarations of Judge Judge Jeffery concede that Nolan "[uJnquestionably, of Elections has the Division Proceedings authority of Alaska Constitutional exercise certain discretion in 15. 6 (December (PACC) App. administering V at 13 the election statutes." Convention 1955). Municipality Co. v. 20. W. States Fire Prot. 2006) (cit- (Alaska jus- Anchorage, 989 (regarding supreme 146 P.3d 16. AS 15.35.040 Pipe tices); appeals Co. v. Kenai (regarding Tesoro Alaska Petroleum court of AS 15.35.055 (Alaska 1987)). Co., (regarding superior 903 judges); Line AS 15.35.070 232 Judge Jeffery Judge Nolan council's recommendations

As regarding the ten (some observe, already the Election Code does not define of whom had filed their candidacy." the term "declaration of Be division), declarations "acquired peeu- these have not a July cause words sent on 15. Neither communication ex statutory meaning, lar virtue of definition pressly Jeffery Judge declared that either or construction, they con or present held a intent to stand Nolan usage." in accordance with their common strued Neither communication indi for retention. Dictionary Black's Law defines a being purpose it made for the cated that was 2 statement, procla "[al] declaration as formal conveying any pur for the such intent or mation, announcement, [especially] one pose satisfying 15.85.070 and AS in an instrument."22 embodied Webster's 15.35.110. Neither communication referred Dictionary similarly defines a declaration as all, at the declaration statutes statement; proclamation." "a formal Fur 15 e-mail referred instead to the "Council's ther, the Election Code refers to the declara pamphlet," subject contribution to the voter a something tion as that each shall governed by a and a differ different statute "file," Dictionary Law de which Black's indi ent deadline. Neither communication meaning legal a discharging any "[to fines as verb deliver cated that the council was duty imposed document to the court clerk or record custo on either to communi placement official dian for into the record." division, that the cate with the given permission the council to do so. The phrase The division contends that the purpose council's for the communications was candidacy" "declaration of refers to docu obviously satisfy most the council's own minimum, ment at a must "contain a statutory obligations; constitutional personal, affirmative declaration of the nothing implied purpose satisfying to be candidate." We defer to this defini obligations candidates' own to the division. comports usage tion because with common actually And if the council had also intended of the terms "file" and "declaration." The statutes, satisfy declaration one would superior court's conclusion both expect council's have communications to "supply failed to the Division with a formal expressly invoked the declaration statutes declaring candidacy," statement if cor operative and mimicked the lan rect, would therefore be fatal to the guage. The care the council took meticulous argument filed "declarations of can informing of their to file didacy." by August a declaration with the division 1 is court's conclusion in this re reading inconsistent with the two communi gard appears supported by to be the evi cations to be those declarations.27 judges dence. The two documents that the qualify claim as their declarations are an e The division's determination that the judges judges candidacy mailed address list of sent the failed to file declarations of interpretation council to the division on 8 and June the is reasonable of the constitu Dictionary Johnstone, 537, (8th ed.2004); 21. Div. Elections v. 669 P.2d 25. Black's Law at 660 (Alaska 1983) (citing 539 State v. Debenham Elec. (Alaska 1977). Thomas, 80, Silides v. P.2d 88 559 Co., (Alaska 1980); Supply 612 P.2d 1002 McCann, (Alaska Lynch v. IV, (stating § 26. Alaska Const. art. that 1970); (providing part: AS 01.10.040 "Words law); assigned perform council must duties phrases according shall be construed to the (requiring AS 22.10.150 the council to "conduct grammar according rules of to their com- [superior judge court] an evaluation each be- approved usage.")). mon and provide fore the retention election and shall public judge information about ... 60 Dictronary (8th ed.2004). 22. Black's Law at 436 election"); before days College Dictionary 23. Webster's New World at 375 (requiring 22.15.195 the council to "conduct an (4th ed.2004). judge court] evaluation of each before [district provide election and shall (regarding 24. AS 15.35.070 superior public judge days ... information about judges); (regarding AS 15.35.110 district court election"). before the judges). sup filing suggests deadline that statutory requirements and is neous with tional and given facts. It was therefore error the candidates had the council authori ported candidacies, superior ty they court to conclude that to declare their or that for the determining thought its discretion division abused the council's communications with the division had relieved them of their two communications did that the council's candidacy candidacy declarations of qualify as to file declarations of with the division. .27 judges To the extent compliance 2. Strict with the argue seem to that "de

dissent required. deadline is by responding clared" their candidacies evaluation in November the council's argue The also if even controlling The stat unpersuaded. we that the we hold June 8 15 commu require the declarations be filed utes satisfy nications did not re elections, not with the with the division of quirements, we should affirm the judicial council. ground judicial court on the alternative only substantially retention candidates need are also unconvinced the dis We comply with election deadlines. The contention that the council's evalua sent's judges argue only that strict is can be considered to be declarations of tions appropriate regard non-judicial candi candidacy and that "since the Council is obli they supply dates because have to much gated by law to act on and inform the Divi judicial more than their information counter declaration, judge's sion of the who parts, presumably because information about an official declaration of submits already available in is ree- making meets the burden of an They point compli ords. also out that strict effectively affirmative declaration no less justified in political ance is arena because directly by submitting it to the Division." prevents potential it "gamesmanship," First, fruitlessly it confuses the in 28 which a candidate could otherwise wait until say quiry, terminology, and the relevant run after last minute to decide to first that a submitted a "declaration" to the seeing who This concern does not else filed. questionnaire response council. A carry over to retention elections be meaning no "declaration" within the unopposed. candidates are cause controlling Nothing requires or statutes. permits to submit a "declaration" of substantially complied council, any sort to the much less a declara deadline, they argue, when satisfying the two declaration statutes at filed their declaration of forms Moreover, here. we hold in issue because mid-August. with the division in Part IV.A2 that AS 15.35.070 and AS argue filings substantially com- require compliance, strict if 15.35.110 even plied with the deadline because the division satisfy we assume that the council could preparations hampered "was not statutes, certainly declaration could do so previously council the election" since the satisfy if it indeed filed a "declaration" necessary provided the information. Fur- division, presumably after ther, they although contend that their mid- authority judges gave to do so. The deadline, August filings were after the council, by performing specified its own "comfortably were filed before the Division's duties, explicit implicit has no or incidental printing deadlines for ballots and election authority responsibility convey or declara pamphlets." And, candidacy tions of to the division. as discussion, the election statutes fix part we will see in the next of our "[Where contempora filing petitions in or certificates of there is no evidence this case a date for candidacy with the division 27. Because we hold that the division did not file declaration of judge's determining behalf. abuse its discretion in that candidacy, judges failed to file declarations of we at do not need to decide whether the council could 28. Dissent 245. 2394 however, judge. of his status as a

candidacy, such documents must be filed be because fixed, effectively expiration given fore the of the time the same treatment He was any may Silides, not exercise election officials non-judge. [the] In Falke v. discretion in the matter."29 Johnstone, In both Silides and we did established, that it is "well State we stated compliance. But in both require strict cases jurisdictions, in both in Alaska and other statutory or ambi we held constitutional strictly filing deadlines are to be election law guity, oversight, justi not a candidate's rule, compliance is the enforced. Strict compliance departure fied from the strict 30 compliance exception." the rare substantial August 1 standard.37 Because the declara mandatory, Because dates are "sub reasonably be tion deadlines cannot consid sufficient, compliance is not absent stantial 3 1 ambiguous impossible comply ered 'impossibility.' substantial confusionor with, justification departing no there is permitted far we have substantial Thus compliance from the strict standard here. compliance with an deadline Thomas, only one case. In Silides v. may The dissent reason strictly comply candidate did not confusing was or that filing his financial disclosure deadline for ambiguous.38 statutes were somehow There statement.32 held that the election stat 'We language ambiguity is no the clear of AS simultaneously required utes that Silides to any 15.85.070 or AS 15.85.110 or in file his financial disclosure statement in An procedures. importing There is no basis for chorage and his declaration compliance a substantial factor into their inherently impossi Juneau were unclear and text. comply ble to with.33 Because of the "lack of proposition, As confirmation of that it is clarity in" the "the im inherent statute and clear that no one was confused June or possibility compliance," departed we 19, 2004, July, August any or before "normally salutary doctrine that election doubt about what the declaration statutes strictly deadlines must be construed and required. 9 the On June division sent strictly enforced" and held that substantial stating "you yet two letters have not compliance was sufficient.34 In Division of filed for retention.... 1 is Johnstone, rely Elections v. we did not on a to file for retention." theory, substantial but we al comparison, the division sent different letters Judge lowed Johnstone to remain on the declaration; to those who had filed a though bench even he failed to file his decla candidacy by "you ration of the deadline.35 We those letters stated have filed for reten- 15, July day tion." On the same council Judge timely excused Johnstone's failure to division, sent 15 e-mail to the file his declaration of because we judges, council also sent a memo to the ten concluded that the Alaska Constitution was ambiguous regard explaining both the when he was re file quired to stand for retention.36 John- declaration and the consequences failing treatment, given any special stone was not file on time: State, Thomas, 369, (Alaska 80, (Alaska

29. Falke v. 717 P.2d 32. Silides v. 559 P.2d 1986) State, Sec'y (quoting Andrews v. 1977). 235 Md. 106, 650, (1964) (citation omitted)); 200 A.2d Thomas, (Alas- see also Silides v. 559 P.2d 33. Id. at 86. 1977). ka 34. Id. State, (Alaska v. Falke 717 P.2d 1986) (citations omitted). v. Johnstone, Div. Elections (Alaska 1983). 542-45 (Alaska Marshall, 227, 31. State v. 633 P.2d 36. Id. at 544. 1981) (holding candidacy that of declaration filed Silides, "timely") (citing ten minutes late was not Id.; Silides, Falke, 86); 37. 559 P.2d at 86. at see at also P.2d (substantial compliance improper standard un- ambiguous). 243, less statute 38. Dissent at 245. persons the council or reasonable judge past ing next or that as a continue In order to by thought have that communication require you to file could statutes January, state would relieve or the council with the division a declara- Elections] Director [of the with statutory the of their August than had relieved candidacy ... no later tion file declarations of you do not file this declaration 1.... If Director of Elections division. candidacy with the 1, your will August name or before

on Furthermore, declaration statutes ef the your fall and term the ballot this appear on fectively require a candidate to communicate ninety days the after judge will end to the division the candidate's current inten election. August 1 tion to stand for retention. The legislature chosen the is late conveyed the deadline message unambiguously This pro enough sequence in the election that requirements and conse- clear coun- vides an accurate declaration of each candi message from the quences. Given this intentions, anything current unlike judges, neither the council nor date's cil to the any might that be inferred from whatever thought have communica- judges could may prior judge have told the council the council and the division tion between beg November, And before the evaluation satisfy the declaration statutes. could Likewise, August 1 declaration 16, 2004, Judge Jeffery sub- August when an.39 deadline allows jurists previously interested candidacy to the declaration of mitted his silently drop publi out division, accompanying letter before he stated his any by the coun late." cation of adverse evaluation these documents are On "I realize when Nolan submit- August the Judicial cil or adverse information from might explain Commission.40 This she stated Conduct candidacy, ted her declaration adopted August 1 why legislature my "(today it came to attention in her letter declaring candidacy deadline for timely file the Declaration of that I failed to August 7 for submit in- 41 Candidacy." These communications are in the election ting information for inclusion any notion that the statutes consistent with pamphlet.42 ambiguous or confus- procedures were or the questionnaire spond and a to the November contends that it is incorrect

39. The dissent judge responded goal require- who the same: It would evalu- assume "that declaration ate both and forward the evaluation re- decision,' to elicit a 'final rather ment is fust present at in the intent." Dissent sults for both to the division for inclusion a clear declaration of pamphlet. Therefore the council itself election does not treat responses questionnaire as a dec- problematic. Whether or contention is This discharging triggering or laration critical decision," to be a "final not a declaration council's duties. decision, require implicitly a current statutes expression contemporaneous present-day with 22.30.011(h) part (providing in relevant They date it is filed. seem inconsistent "judge a declaration for that after a has filed decision, conveying a such as reflected in stale office, [Judicial for retention in responses any questionnaire in the information report pub- ... each Commission] Conduct shall nearly eight months before. sent to the council reprimand, suspension, re- censure lic may contention also assume The dissent's judge"). ceived with the division the council's communications selecting August 7 deadline it seems declaration of amounted to a "clear somehow improbable legislature that the intended present But the 15 communication intent." supplying informa- the evaluation conduct it a "clear" a "declaration" at all. Nor is is not by August pamphlet for the election a declaration intent." declaration, "present satisfying any would have role in council depend on the This contention also seems legislature obligation August 1 declaration discharge obligations in conduct- council's of its imposed on the candidates. forwarding the evaluation results. The explained director in an affi- council's executive by superi- (requiring declaration 41. AS 15.35.070 superior court that would davit filed in the "it (re- 1); by August AS 15.35.110 or court upon an affirmative statement judge by August quiring declaration district judge that he or she did not intend to stand for 1). judicial council would refrain retention that the required evaluating who was Thus, part (providing in relevant would 42. AS 15.58.050 retention." the council stand for council altogether later that ... "[nlo who failed to re- treat both 236 (b) 2004, hearing judges public held a on the

A standard is thus substantial (c) 2004, May press both the text of the control issued a release an inconsistent with way ling and with the nouncing supported judges' declaration statutes the reten that it council, division, (d) the and even the 26, the July and the as tion on listed or interpreted the declaration statutes on "many candidates on its website months be 19, 2004.43 before fore the election." part supe that a The constitution states Judges Their B. The Must Vacate judge's office "becomes vacant rior court Ninety Days. Seats Within days ... ninety after the election for which that the Having determined declaration of he fails to file his candidacy by failed to file declarations of legislature The mir succeed himself."45 deadline, ap we now consider the wording it rored this when enacted the two remedy. superior court con propriate regulate court statutes that when would be cluded that the forfeiture sanction judge's or district court office becomes va-c that because it inappropriate. It reasoned interpret ant.46 the Alaska Statutes We judges' "filing had found that snafus" reason, "according practicality, and com process, impact would not the election sense, taking plain into account mon hardship that vacation would cause on both meaning purpose of the law as well judges personally as the as well "consti plain the intent of the drafters." system tutional retention election meaning of the constitution the statutes electorate" would be too severe. mandatory is that vacation is the conse appeal Judge Jeffery Judge Nolan On judge's quence for a failure to file a declara Johnstone,44 argue under we should candidacy. tion of remedy weigh hardship of our on the Johnstone can be differentiated from this against judges and on the electorate case. Johnstone we held we were public hardship caused to the from the establishing principle a new of civil law.48 timely file their declara failure to analyzed hardship therefore We They personal candidacy. tions of note the and the electorate to determine Johnstone hardship imposed on them if would be required holding only apply pros to forfeit their offices. whether our should pectively.49 holding If our had not estab importantly, they argue, public was More law, however, principle lished a new it unharmed their actions because "overrule[d]) prior sense that it had not law ample support time to consider whether to or impression," an issue of first oppose They decide[d] their candidacies. observe (a) prospective application council: treated the as candi threshold test analysis would not have been met our surveys early dates when conducted including shall file ... a statement ... the evalu- 44. v. P.2d Johnstone, Div. Elections justice (Alaska 1983). ation of each conducted 545-45 describing council ... statement [and al IV, censure, each or sus- § public 45. Alaska Const. art. 7. reprimand, pension"). 22.10.100(b) (regarding superior 46. AS unnecessary 43. It is therefore to consider wheth- 22.15.170(e) judges); (regarding district judges substantially complied er judges). declaration statutes. We nonetheless uncon- by any vinced assertion that the substan- State, 47. Native Vill. Elim v. 990 P.2d tially complied conveyed when the council (Alaska 1999). evaluation and conduct information on 15. Not must the division receive the critical 48. P.2d at straightforward expression of the information-a filing, at intent, candidate's held the moment Id. at 545-46. requirement to stand for retention-but of a implies degree formality some "declaration" Bya beyond message Entry from the 50. Commercial Fisheries Comm'n v. be inferred coun- (Alaska 1984) yuk, in the 117-18 cil's submissions for inclusion ("[WJhether holding prior pamphlet. law or overrules

237 holding days opinion per have after this takes effect hardship of our would not Alas of the 507(b).54 Appellate ka Rule triggered. been Here, clear absent the law is FABE, Justice, participating. Chief statutory ambiguity, compliance with strict BRYNER, Justice, dissenting. filing required,51 is deadlines I. INTRODUCTION noncompliance mandatory is va penalty for no doubt that cation of office.52 We have requires judges Alaska law who seek re- Judge Jeffery Judge Nolan to requiring tention to declare their to the personal hard vacate their officewill lead Alaska Division of Elections no later a bitter ship. This must seem like reward Here, August year. 1 of the election two years extraordinary public of service sought who retention and received judges. But we are not estab both because favorable evaluations the Alaska Judicial lishing principle by holding law that a new of personal Council failed to file declarations of filing failure to meet the the Division; reason, candidacy with the for that sanction, triggered mandatory the vacation the Division refused to include them on the controlling the our decision is constrained ballot, despite receipt timely filings of legal principles. It error to rule that the was evaluations, the Council's which established hardship pre and electorate to the already the declared to the application cluded of the forfeiture sanction.53 Council their intent to stand on the ballot. Today's opinion upholds the Division's deci- v. CONCLUSION disagree. sion. I

Because the division's determination integral part As an law, Judge Jeffery Judge failed to file Nolan established Alaska the Coun- candidacy by sitting cil must contact and all declarations evaluate supported by the facts and had seek retention well in deadline was who advance of basis in we the deadline for their declarations of reasonable REVERSE superior judgment part court's and ORDER the with the Division. As of its ninety appellees process, identify to vacate their seats within evaluation must court, (a) opinion appellate of the or its decides an issue of first serves as a ] impression{ purely judg- order under Rule shall constitute its threshold test to determine whether prospective application of a new rule of law is ment, and shall contain its directions issue."). even at court, trial if No mandate shall be issued. any. (b) opinion expressly Unless order states otherwise, judgment appellate of the court e.g., Falke v. 717 P.2d See, State, 369, 373 jurisdiction takes effect and full over the case (Alaska 1986); Thomas, Silides v. 559 P.2d day specified returns to the trial court on (Alaska 1977). 512(a) in Rule for return the record. How- ever, appeal Appellate in an under Rule 207 IV, (regarding supe- § 52. See Alaska Const. art. relating prior judgment, judg- to release 22.10.100(b) judges); (regarding rior court AS Appeals ment of the Court of takes immediate 22.15.170(e) judges); (regard- jurisdiction case effect and full over the returns judges). district court day Court to the trial court on the Appeals opinion deciding issues its or order although Judge Jeffery 53. We note appeal. timely Nolan failed to file declarations of (c) stay judgment A of the motion the effect candidacy, judgments they have issued or appellate beyond day specified period will issue in the between interim when 512(a) in Rule shall be made to that court. they supposed {ninety to vacate their office 512(a) Appellate provides perti- Rule Alaska election) days after November part: nent (ninety when are now ordered to vacate court, (3) supreme decided In case days opinion per Appellate this effect after takes returned: record shall be 507(b)) Rule from collateral attack protected day [al on after time for under the de doctrine. See v. facto Gates petition rehearing expires, timely peti- if no Springs, Tenakee 1038-39 City of rehearing filed; tion for (Alaska 1998). [b] on the after court dis- day supreme rehearing, poses of the case on if a petition rehearing Appellate provides: is filed. 54. Alaska Rule 507 the initial reten actually judge's appointment.2 on the After intend to stand which ballot, and, election, the interval to the next election evaluating after intent, judgeship: years ten depends on the level of who declare their it must file its eval- justices;3 eight years for supreme for court uations with the Division so that the evalua- years supe for appeals judges; court of six appear can in the Division's Election tions years for judges;5 rior court and four dis Pamphlet. judges.6 trict court to Because the law authorizes Council conducting judicial re procedures for determine which declared their intent run, unique are to Alaska. Alas requires it to base its evaluations on tention elections to determination, separate agencies obliges requires it to file its ka law three state this Division, participate process: in the the Alaska the Council's to evaluations Council,7 on obligations before the Judicial the Alaska Commission compliance with these Conduct,8 Alaska Division of statutory require- met all Judicial and the candidacy. played by agency each Elections.9 The role ments for declarations below; because the formally evaluations establish will be outlined court's The Council's in the opinion focuses on the Division's role favorably evaluated that each who is to process passing for retention and makes reference has declared the intent to stand actions, description here qualifications to do so. the Council's possesses closely part incorporate other will focus more on the Council's The evaluations also all required by pre- process. the Division's of the overall information declaring candidacy. form for Ac- seribed A. The Council's Role in the Retention

cordingly, I would conclude that the Division Process authority accept to the evaluations as candidacy, though they declarations of even judicial process begins retention Alaska's by were filed the Council and not the Alaska Council. The Coun with Judicial judges evaluated. individual independent agency an cil is state created primary Constitution whose con Alaska II. OVERVIEW OF ALASKA'S JUDI- solicit, evaluate, charge stitutional is to RETENTION PROCESS CIAL governor applicants nominate to the pos But constitution also conclusion, my explain help To it will itions.10 requires perform other fune- begin reviewing Alaska's upon legislature.11 tions direction process. ap Under Alaska are pointed key legislature assigned to office for indefinite terms but The duties periodically appear conducting preelection the ballot include must Council justice judge seeking allow voters to determine whether evaluation of each ini should be retained.1 Each must retention, informing about its eval uation, Di tially general first the evaluation with the stand years in the Divi election held more than three after the rector of Elections for inclusion IV, 5, 6; 15.10.105(a). dealing §§ 1. See Alaska Const. art. AS 9. See AS Alaska law 15.15.030(10); AS requirements of the retention vari- AS 22.15.195. 22.10.150; ously responsibilities attaches to the Division of IV, § 2. Const. art. 6. Alaska Division, Elections, director matter, governor. practical lieutenant As IV, 6; 15.35.030; § 3. art. AS AS Alaska Const. distinctions since the Divi- inconsequential, 22.05.100. supervision sion falls under the of the lieutenant 15.35.053; governor and the director heads the Division. 4. AS AS 22.07.060. otherwise, requires this dissent Unless context IV, 6; 15.35.060; § 5. AS Alaska Const. art. simply will refer to "the Division." See id. 22.10.150. § art. IV, See Alaska Const. 15.35.100; 6. AS AS 22.15.195.

7. See AS AS 22.15.195. 22.10.150; 11. See id.

8. AS 22.30.010. end, this with the Division. Pamphlet.12 To Since sion's Election evaluations statutory charge directs the Council specifically Code the Council's is to evaluate Election justice, supreme subject to evaluate "each "will be to" those who judges eligible 16-not all judge, superior judge, to run-the appeals court of subject judge who and district court will begins sending judges eligible all election" and to file with the to a retention specifically for retention a memo addressed by August 7 a statement governor lieutenant Retention"; "Judges Standing incorporating the Council's evaluatlon of each questionnaire soliciting memo attaches a in candidate.13 formation from who consider themselves be "Candidates for Judicial statutory duty, the keeping In with this questionnaire Retention." asks re developed adopted and an inten Council has sponding judges categories for various of in perform the public process sive to evaluate formation relevant to their retention: intend to stand for retenti ance of who aspects all process encompasses on.14 This e workload; a statistical breakdown of their collects, judge's com performance; of the summary participation ea 'of their piles, analyzes spec and data from a broad committees and in other ad- court/bar judicial participants process; in the trum of activities; ministrative public of the it invites all interested members ® assessing ju- a narrative statement participate comment on the candidates and performance, including dicial satisfaction process; stages at various of the and role, judicial with their contributions to publicized ongo on an Council's activities law, judiciary or field and ing hearings, notice of the Council's basis skills; improvements knowledge and releases, regularly press up and a statewide dated, widely advertised website.15 @a non-judicial description of events and consuming, this is time activities that could conflict with their Because begin judicial responsibilities, having the Council must its evaluation such as year year preceding proceedings fall of the in which tax liens or collection filed them, against being held-almost a involved in the retention election is be non- year legal proceedings, engag- before the election and nine months court-related August before the Council's deadline for ing practice holding any in the or provides: year No 7 of the in which 12. Alaska Statute 22.05.100 later general held, the state election will be supreme justice subject ap- Each court judicial council shall file with the lieutenant (Alas- rejection provided proval or in AS 15 governor including a statement information Code). ka Election council shall supreme justice, about each court court of justice conduct an evaluation of each before appeals judge, superior judge, and court dis- provide the retention election and shall subject who will to a reten- trict be public justice may information about that and shall reflect tion election. The statement regarding provide a recommendation justice evaluation of each or conducted rejection. any or The information and recom- to law and according council at mendation shall made least 60 describing shall contain a brief statement each days judi- before the retention election. The censure, public reprimand, public suspen- provide cial council shall also the information sion received under AS any and recommendation the office of the 22.30.011(d) during the covered in the period publication governor lieutenant in time for may evaluation. A statement not exceed 600 pamphlet If under 15.58.050. words. majority voting question on the justice rejects candidacy, rejected may Council, 14. See Alaska Judicial Alaska Judicial any vacancy appointed not be to fill in the Program, Evaluation in Araska Retention court, supreme appeals, superior court of Juptciat twenty-rairp Report: Counci, 2005-2006 to court, penod or district courts of the state for (2007), anp Supreme tee LecistaturE Court F app. years of four thereafter. http://www .aje.state.ak.us/reports/23 at available 22.07.060, 22.10.150, and Alaska Statutes rdReport.pdf. requirements with 22.15.195 establish identical respect appeals, of the court of 15. See id. court, and the district court. 13. Alaska Statute 15.58.050 states: AS 15.58.050. local, state, federal, Commission, political and

other Public Offices the Commis- office; Conduct; sion on Judicial and information through public input actively obtained solic- names, numbers, describing case elists summarizing In ited Council. participants in the three most recent and procedures evaluation for the 2004 retention judge involving cases handled election, emphasized the Council the breadth trials, trials, jury non-jury disposi- and openness process: and requiring significant but end- tions work trial; without The Judicial Council evaluates ® names, numbers, list of case case help of thousands of Alaska citizens- '- any particularly participants other officers, police probation attorneys, ju- noteworthy cases. rors, employees, social workers Judges appear run for reten others in court before the who do intend to who judges. surveyed expected question tion are not to return the fact, and, naires do not return them. groups, asked for written and oral Those who do want to stand for retention public throughout comments from the questionnaires; by doing they return the so state, and reviewed records about provide the Council with the information and workloads, interest, conflicts of and other statutorily trigger authorization needed to its aspects performance. effect, then, judges mandated evaluation. In Upon completing investigation its and com completed questionnaires who submit to the data, piling all relevant the Council's staff Council declare their intent to stand on the prepares judicial evaluations and cireu- part, interprets ballot.17 For its Council compiled lates the materials to Council mem statutory duty obliging its as it to "evaluate for July bers review. The Council meets in elections"; judge standing each for retention to consider the information and make retention in keeping interpretation, with this it treats required by rec As ommendations.18 questionnaires the returned as declarations the evaluations are then filed with candidacy. Council not evaluate the lieu does eligible judges ques governor who decline to return tenant for inclusion in the Division's tionnaires, throughout Pamphlet. the course its Election For the 2004 retention consistently election, evaluation refers to meeting the Council held its responding judges as who will adopt the evaluations and recommendations actually for retention." "stand[ ] 12, July 15, July on 2004. On the Council judicial filed all the evaluations and recom receiving questionnaires After from mendations, two-page description as well as a retention, who intend to stand for the Coun- judicial process, the Council's evaluation cil investigation prepares undertakes its by transmitting these materials to the Divi investigation its evaluation. The Council's in sion the form of Microsoft Word e-mail relies three broad sources of information: addition, attachments. the Council sent a surveys asking groups various interested copies CD and hard of the same information judge's performance; evaluate the collection backup as a in the event the Division encoun performance-related and review of all materi- problems tered in concerning judge, including als available the documents their public agen- filings e-mailed format. materials available from other These conformed to system, regulations, cles such as the court the Alaska the Division's which allow elee-tronic Indeed, by returning questionnaires, emphasize: expect on to "I to continue and responding judges literally do the expand declare hope these efforts in the future. I themselves be "Candidates for Judicial Reten- address reform to the current District Court cal- tion," they respond specific but sometimes endaring system to better serve the questions clearly with statements confirm promote judicial well-being." serving judges. their active intent continue as example, response questionnaire's For Council, Alaska Judicial Retention Evaluation request judicial performance to comment on her Information, http://www.aje.state.ak.us/ term, during her current Nolan outlined (last 2007). visited Oct. Retention/retent.htm accomplishments areas of her current and went information, totality of this Based on the ng.19 fili public, that the vote to Councilrecommended description of its two-page The Council's judges. retain both judges cov- process identified evaluation issued a On who were evaluation ered press announcing release "af- statewide election, stating in standing the retention comprehensive evaluation of ter part: relevant performance," it had "found all ten 2004, general standing for retention the Judicial require laws [State qualified." The Council also [to be] judge standing for each Council evaluate judge. that voters retain each recommended require Other laws retention elections. press descrip- out a detailed release set publish its evalua- that the Judicial Council process, tion of the Council's retention ex- Pamphlet. The evalua- in the Voters' requires that "Alaska law the Judicial plained standing in the November tions of every judge standing Council to evaluate following appear on the 2004 election pub- retention and to make the evaluations pages. included a 2004 press lic." The release also Summary disclosing Evaluation vari- Judicial Judges No- The individual evaluations survey ratings each ous received _ Jeffery districts lan and disclosed assessing performance in office. running and summarized in which evaluated. the Council had the information Role in the Pro- B. The Commission's Jeffery's Judges Nolan's and Specifically, cess evaluations revealed law, the Alaska Under Alaska Commission 2,927 ratings surveyed and received plays Conduct also a role on Judicial 1,495 probation offi- attorneys; peace judicial process, albeit a consider retention in cers; jurors appearing before ably played role than the one more limited Council, 2008; employees; and an by the Council. Like the the Com 2002 and community-based, ageney volunteer independent, independent is an state es mission the Alaska under Constitution.20 addition, tablished organization. court-observer primary constitutional The Commission's noted that the Council evaluations complaints judicial duty investigate is to imposition misconduct and to recommend the investigation in- completed background a Supreme by appropriate sanctions the Alaska check, disciplin- a cluding a court records The Alaska Constitution Cour t.21 check, a of conflict of ary records review authority to gives legislature establish to the court interest statements submitted specific powers the Commission's system a review of financial disclosure duties.22 to the Alaska Public statements submitted 22.30.011(h), duty, set out in AS One such Attorneys, peace of- Commission. Offices requires judge a files a declara when ficers, jurors employees and retention, candidacy tion of to stand for written comments about asked to submit give report a must Commission actively judges. The Council encour- discipline imposed disclosing any public comment, in public both writ- aged the discipline will against judge, so that the hearing ing public and in a statewide tele- in the Council's evaluation be included with by Pamphlet.23 evidenced As the Election conference. See, 25.1700(b). judge a declaration of eg., has filed 6 AAC section 19. office, candidacy the commis- for retention in IV, § Const. art. See Alaska judicial report council shall sion in the statement filed inclusion 21.See id. public repri- AS 15.58.050 each council under received mand, censure 22.See id. suspension, judge 22.30.011(b) 23.Alaska Statute states: (1) appointment; or since publicly reprimanded, judge If a has been suspended, publicly censured under this evaluations, ballot;29

the Council's 2004 the Commis the Division must also include the reports required judge sion information in Pamphlet, along to the the Election during the course of the Council's the Council's evaluation and recommendation on retention.30 investigation, inwell advance of the 1 deadline for to file declara Thus, perform tions with in the Division.24 III. ANALYSIS statutory duty report any public its discipline imposed on a who "has filed A. The Council's Evaluations Amount- a declaration of Timely Statutorily ed to Au- office," Commission, Council, like the Filings thorized of Declarations any judge considers under active review Candidacy Judges. Made the Council to be a who has filed a Here, applying interpretation its own declaration. minimally acceptable what a declaration must

contain, the Division contends that the Coun C. The Division's in the Role Process cil's retention evaluations-filed with the Di vision e-mail on 2004-were Under Alaska the director of the Divi minimally acceptable as declarations of can duty provide sion of Elections gener has didacy. Though acknowledging that "the supervision al administrative over state elect legislature provided guidance little ... as to general duty encompasses ions.25 This given qualifies whether communication aas supervise judicial retention elections. candidacy," today's opinion 'declaration of Each seeking pay retention must ambiguity gave reasons that this the Division filing fee and file declaration of "a degree certain in deciding discretion" by August with the Division year accept proper what to as a disclosure.31 De which the electionwill Apart be held.26 ferring expertise, today's Division's requiring judges designate opinion accepts interpretation, finding district which sought, retention is supported by it is the facts and has a Election prescribe any partic Code does not reasonable basis law.32 ular form for specify the declaration or what information it must contain.27 The Division opinion But the and the state both mistalk- adopted has a declaration enly form for retention treat the process as requires elections that provide to essentially one-ageney con a ship with the Divi- tact information and signatures to have their sion alone at the helm. As shown in the notarized. recognized today's opinion, above, As in description process in fact re- the Division quires does not demand strict participation adher cooperation and form; ence to this declaration but it separate agencies; does three legis- state require, minimum, at a initial, that the declaration assigned lature has many and in "contain a personal, respects affirmative declaration of primary, responsibility for steer- judge to be a candidate."28 Once a Council, process the course of the properly filed, declaration is the Division not the undeniably Division. While the law place must judge's requires name on the retention judges seeking retention to declare (2) See, 15.35.080; if the e.g., has been retained elec- 27. AS AS 15.35.130. tion, since the last retention election of the judge. Majority (quoting reply 28. at 232 the state's brief 8). timing 24. report The of the al Commission's is evi- because, dent when filed with the Division on 15, expressly the Council's evaluations See, 15.35.090; e.g., 29. AS AS 15.35.130. already completed declared that the Council had disciplinary "a records check" for both 30. AS 15.58.050. Judge Jeffery. Nolan and 25. See AS 15.35.070. Majority at 231. e.g.,

26. See, 15.35.070; AS 15.35.071; AS 15.35.110; Majority AS 15.35.120. at 231. files its Division, It follows when indepen- it candidacy to the their on or before the the Division evaluation with to determine the Council dently empowers declaring candidacy, for judges have declared which for itself filing actually complies with all the Coun- retention. When to run for intent filed properly a prerequisites for to judge does intend that a cil determines final candidacy. Just as a declaration .of investigate it to run, requires law further by a court stands as evi- judgment issued evalua- judge and to file its evaluate underlying facts and law nec- that the dence with the Division. and recommendation tion judgment have been essary support to whole, appar- it a seems viewed as When longer question, in so and are no determined evaluation, mandated legislatively being this upon ent that filed the Council's inde- Division, and the Division the Council's gives both establishes elicit, receive, act evaluated authority to formal determination pendent eligible the intent to stand has fact declared on declarations qualifies a candidate for the ballot and Yet no- seeking retention. judges who are no more authori- The Division has retention. agency empower either the law where does reinterpret the Council's ty disregard to restrict, a determina- ignore, or override standing a determination that formal perform- formally by the other made disregard retention than does for process. part of the ing its reinterpret the Council's evaluation above, the Council sends when As noted judge's performance. judge eligible questionnaire to retention, expressly di- Evaluations Substan- questionnaire is B. Council's Standing Retention" "Judges tially Complied the Division's with rected A Form. Retention." Prescribed Declaration for Judicial Own and "Candidates ques- returns the completes and judge who Division, say This is not in- unequivocally declares thus tionnaire in the assigned duties performing its own retention; doing, so to stand for tent authority to process, lacks overall retention with the infor- judge provides the Council judge by something else from the require investigate and evaluate Here, mation it needs by promulgating way of a declaration. completed judge's performance. form own declaration of its retention, and authorizes thus enables the Division chose questionnaire judges seeking investigation- specific of declaration require undertake form the Council to in the no the declaration embedded otherwise have differs from would which the Council by the Coun- reports filed evaluation authority to conduct. correctly in to- observes cil. As the court questionnaire, returning the retention By "the statutes are silent day's opinion, because then, administra- judge initiates a formal filing must regard to what substance a de- the as process that treats tive judge's a 'declaration to be considered have candidate; judge to be announces the clared authority has candidacy," the Division retention; investigates the running for and to declaration form adopt to its own performance; and qualifications and judge's comply to judges seeking retention require filing statutorily to the of a ultimately leads authority to it-just the Council has with as that eval- report with the Division mandated to required a should be decide what standing for candidacy as a candidate uates the to to declare submit order how the initiating and recommends its reten purposes retention for Furthermore, the evaluation But as the court process. should vote. tion evaluation broad all the informa- Division has acknowledges, to the Division communicates also that are accept in a declarations requires to be included to Division discretion tion the exactly to fail to conform candidacy judicial timely reten- filed but for declaration of declaration form.34 Division's tion. Majority at 231. 34. See Majority at 231. tently recognized long filing so aas

Moreover, is although unques- the Division tionably authority promulgate to and timely complies and with all substantive re requirement, enforce own its declaration its quirements imposed by any technical or prescribed disclosure form is not the exclu- formal deficiencies in the are insub legislature. sive form authorized As may filing.35 stantial be corrected after indicated, already fulfilling its Here, the information included retention, judges seeking evaluate the Coun- Council's evaluations covered all of the sub independent statutory authority cil had required by stantive information the Divi candidacy ask to declare their to the view, my sion's declaration form. it fol Council; sphere operation, and within its authority accept lows the Division had Council, Division, not the had the author- July filings timely properly as ity to determine what a constituted valid candidacy, subject filed declarations of candidacy. Viewing declaration of the reten- correction to ensure Di whole, process as a it seems fair to vision's own formal and technical standards.36 conclude that both the Division's form of recognized declaration and the form largely Councilmet the broad and undefined Arguments Sup- C. The State's Fail To statutory requirement declaration. Ac- port Its Position that the Council's 15, 2004, cordingly, when the Council Evaluations Could Not Be Consid-

filed retention evaluations with the Division ered To Be Declarations of Candida- that reflected the determi- Council's official cy. nation that all evaluated de- retention, clared candidates vigorously argues The state communicated to the Division a personal failure to file declarations statutorily compliant declaration of with the Division caused substantial institu- judges. light purposes tional harm in of the intended requiring judges to declare their Because the Council filed its evaluations points to the Division. The state out that the before the Division's deadline for candidate Alaska requirement Constitution's retention declarations and because the evaluations implicitly judges formally demands that de- complied statutory requirement candidacy; clare their the state further declaration, proper standard for deter points specifical- out that the Alaska Statutes mining passed whether the evaluations mus ly require judges to submit their declarations prescribed ter under the Division's disclosure state, to the According Division. ac- form substantially should be whether complied form, cepting the Couneil's evaluations as a substi- preseribed with the Division's tute for a direct declaration they strictly not whether complied. Given many the Division would frustrate the bifurcated allocation of institutional re purposes served these declaration sponsibilities re- judicial that defines Alaska's quirements. position But process, state's provi retention turns Election Code's requiring judge's sions declaration of candi on the premise mistaken Division plays only significant dacy to role in the be filed the form of a declaration process the Division-rather that the Division's view as declaration originally process. made to the of the law controls the entire Council and later for When part warded to the Division realistically of the Coun required cil's filing-amounts require totality, to a viewed in properly as we must view it, ment of form rather than specific points substance. And in none of the advanced the filings, the arena of we have up scrutiny. state stands to consis See, See, 15.35.071; e.g., Wagoner, 35. eg., Grimm v. 429- declaration. AS (Alaska 2003). 15.35.120. The state has not claimed that authority lacks to relax the fee deadline equivalent If deemed to a declaration of can- proper when an otherwise declaration didacy, the Council's evaluations also would have proper is submitted without the fee. comply separate statutory pro- failed to requiring paid vision fee to be for a statutory defini adopts a broad process that Construing evalua- Council's the multiple agencies that of declarations properly filed declara- tion to be tions correctly in Director apply. violate Had the not must does tions of statutory governing law the terpreted applied dec- the purposes of the the whole, would there requirement. process as retention laration that the Divi to conclude been no basis have considerable at already described As the authority to act on Council's lacked sion judges to requires although Alaska length, confusion usual solution for The evaluations. Division, the law the with file declarations requirements lies legal created uncertain authority re- the gives the Council also inter through law clarifying in the formally judges eligible for quire to avoid legislative amendment pretation or intent to stand their to the Council declare disqualifying in problems-not future systematically The Council retention. the from ballot.37 judges declare just that. After does by returning reten- to seek retention intent argu- nearly identical raises a state an conducts the Council questionnaires, the evaluations contending that ment and, evaluation, an investigation, prepares purpose of the satisfy a second failed to basic requirements express the compliance with the Divi- requirement: to assist declaration Division of its evalua- notifies orderly conducting elections. sion view, who, in the Council's all tions of Director's that is not the insists state "ilt to stand for reten- their intent declared have whether" puzzle out responsibility argues that the The state nevertheless tion. But amounted to declarations. evaluations judge, the burden on places law existed, it from the puzzle if again, arose Council, declara- an affirmative to make language sur- clarity in the lack of tion; suggests that reliance further the state cou- process, rounding the current retention improperly shifts evaluations on the Council's had ever prior that no case pled the fact judge. But since away from the burden here. More- problem raised presented the by law to act on obligated is the Council over, hardly supports the state's record judge's declara- the Division inform Jeffery Judges the status of suggestion tion, an official declara- who submits puzzle. To an actual and Nolan created meets candidacy to the Council tion of the Divi- correspondence between contrary, declaration making an affirmative burden shows unequivocally sion and submitting it di- effectively than no less the retention eval- that both understood rectly to the Division. judges whom the uations covered argues that the e-mailed The state also "the stand- to be considered satisfy failed to question here evaluations ing for retention." statutory filing require purposes of Mul- Suzanne example, the For Division's According reasons. for various other ment in her this that she understood len showed state, to meet failed the evaluations Council, which e-mail to June authorizing the purpose of the fundamental for the 10 mailing addresses for "the asked eligible judge on place an Director twelve 2004"-not candidates essentially cir argument But this ballot. eligible for reten- originally judges who were had no the Director it assumes that cular: con- McKelvie Susan tion. The Council's Director declined authority because 10 e- understanding in her June firmed this establishing the Council's evaluation view Mullen, stating, "I am in the mail to above, point this As indicated a declaration. them will send creating pages governing the the law misperceives of view in mid- meets immediately after the Council Although the process as a whole. standing for reten- on the to vote signifi uncertainty legal about Division's tion." may evaluations of the Council's cance imagine Indeed, how difficult to it seems understandable, uncertainty springs this have misunderstood could the Division in a retention inherent legal confusion 1983). (Alaska Johnstone, P.2d 537 e.g., State v. generally, Div. Elections 37. See independently eligible had Council asked The state further maintains that the Coun judges to declare their intent to run for filing cil's of retention evaluations fails to acknowledges in retention. As the state its purpose by depriv serve the of a declaration briefing, legislature assigned has public right of its to know who the "providing Council the evaluations actually retention candidates will be. The judges who have declared points filing state out that of a declara qualified appear and are therefore on the ten-day triggers peri tion with the Division begin ballot." Given that the Council must allowing challenge od voters to the declared process its evaluation months advance of eligibility candidate's to stand for retention.39 filing the Division's deadline for declarations argues public It if does not know routinely files its evaluations with the declared, ability challenge who has its expires, Division before the deadline it seems judges argument yet will But be lost. this evident that the Council can fulfill its statuto- again presupposes correctly that the Division ry duty only by independently asking all disregard compli chose to the evaluations' judges eligible for retention to declare to the statutory requirement ance with the for a they actually Council whether intend to stand declaration; thus, proper the asserted lack of for retention. clarity largely impor self-created. More state, According yet pur- tantly, to the position ignores reality another the state's pose of a declaration that the process Council's eval- that the Council's evaluation is itself clarity formal, uations fail to address is the need for statutorily authorized administra precise judge's as to the date when the dec- process judges tive treats the who are instance, laration is filed. For the state undergoing officially evaluation as declared points filing out of a declaration extensively candidates and advertises them triggers registering the deadline for judges standing as for retention. Alaska Public Offices Commission. But this Here, widespread publicity because of the argument overlooks judges the fact that all gave process to the retention eligible supposed for retention are to have open public invitation it extended for the already disclosures; filed APOC and as ex- participate evaluating judges who pressly established on the face of the Coun- actually running, by were the time Au- evaluations, cil's retention the Council checks gust 1 deadline for formal declarations requirement part this as arrived, with the Division the Council had background investigation its of the already fully informed the electorate that the who declare their intent to run. evaluating officially it was were de- points The state likewise out that the Likewise, clared candidates for retention. triggers of a declaration the Commission's already actively encouraged had all interest- duty to inform disciplinary the Council of ed members of the to comment on the against judges up actions who are for retent judges' qualifications for continued service in above, already emphasized ion.38 Yet as Any office. public wishing member of the provides Commission reports challenge eligibility of one or more during course the Council's ample would have opportunity investigation judges standing of the for re challenge by communicating raise it to tention; thus, when the Commission carries Council, having worry without about out report disciplin mandate to imposed the time constraints under the Divi- ary Council, sanctions to the it views all regulations. sion's undergoing who are the evaluation already having then, standpoint public, their can From the declared didacy-regardless officially of whether recognized have for candi- mally submitted a declaration to the Division. dates retention well before the 22.30.011(h) 25.260(a). (requiring 38. See AS the Commis- 39. See 6 AAC any public sion to inform the Council of disci- plinary pending against actions taken or when "the filed has a declaration of candi- retention"). dacy for

247 official recognition became election-filing requirements: governs other Their deadline. timely, proper in all required filing is when a the Council's because of precisely only deficient in by creating respects, and process: substantive in retention role impair Council, gave ways or formal that do not legislature technical this role for purposes goals, requirement's basic ensuring that primary compliance should not the absence of strict an notice of and adequate public received appearing candidates. on the ball challenge to a candidate from opportunity bar identify- this role both performed ot.40 an evaluating all who declared ing and by establish- retention and to stand for

intent remaining arguments 2. The state's process open evaluation ing an unpersuasive. opportunity the electorate's that maximized challenge on and to comment evalua arguing that the Council's Besides purposes the basic In the context of choosing tions failed to serve retention. to seek whole, the Divi- process as a the retention requirement, state contends declaration ten-day allowing opportu- regulation sion's to the made that declarations an challenge simply duplicates nity raise a to in 2008-when the Council November by the Council. already offered opportunity questionnaires, their submitted acceptable in unreliable to be would be too if Divi suggests that The state further deadline August 2004-when the Division's to re evaluation allowed the Council's sion argument expired. This for declarations directly by filed place a declaration theory, this makes little sense: under retention, seeking its action would with the Divi judge's early declaration filed requirement's pur frustrate the declaration equally would be unreliable and sion itself equally; in the treating all candidates pose of subject question to as the would become view, held to the same judges must be state's Moreover, asserting in approached. all other candi compliance standard early declaration to the Council that an argument is unassaila But while this dates. run," "a final might not reflect decision abstract, reality in the it overlooks ble goal of a incorrectly assumes that state reten Alaska's law establishes that "final requirement is to elicit a declaration judges differ openly that treats decision," just a clear declaration rather than category of candidate- ently any other No need ever present declaration unopposed run providing in both intent. made-to "final" at the time it who requiring and in that those on the ballot judicial re contrary, candidates for undergo declared must an inten do run for retention from the remain free to requires qualifi tention public process that sive withdraw removed may have their names race and performance to be evaluated cations and they act so late unless public in the from the ballot reported to the the Council and longer no feasible.41 process that removal is unique Pamphlet. These Division's Election suspect judi offers no reason The state pertaining in the law provisions formally after decides to withdraw for the differ who process account cial retention would be declaring candidacy to the Council result from the re compliance ences bottom, early than a likely to withdraw more process. But at quirements of the directly Division. applies that who declared general principle here the same 430; every Grimm, reasonable ob- ensured that filed affidavit at see also v. 77 P.3d 40. See Ruiz 351, 199, Cal.Rptr.2d es- Cal.App.4th jective met and therefore Sylva, of the statute was (2002) ("[slubstantial compliance ... means compliance). tablished substantial respect the substance actual objective every reasonable essential 2007, introduced Bill May 41. House (citation original) (emphasis omit- statute" ted)); by provid- the law the current void in would fill County Attorney, v. Clark Dist. Williams 473, cf. may that candidates (2002) (timely 540-41 118 Nev. ballot from the election their names remove residency challenging ruled petition of candidate the Division by filing withdrawal with a notice of . attesting despite supporting affidavit lack of valid days the election. before at least knowledge personal later- petitioner's because point, suggests quired by form, As a final the state in its the Division's declaration reply substantially brief that the Council's evaluation is Council's evaluation also com- plies legally unacceptable required a with the Division's Fi- as declaration because form. nally, accepting the Council's a authority the Council lacked evaluation as act on behalf properly filed declaration not judges. does under- Relying of the on the Restatement (Second) any purpose mine goal or that, Agency, the state insists requirement; declaration nor does it treat judges because the failed to manifest consent judges differently than other candidates ex- for the Council to act on their behalf in cept insofar governing as the law Division, declaring their to the and process provides for different treat- because the Council never consented to un view, my ment. In under these ciream- responsibility, dertake this agency no viable stances, judges' strictly comply failure to relationship ever arose.42 But the state mis required with the Division's declaration form takenly agency by focuses on the notion of disqualification did not warrant their from topic by consent-the addressed the Restate the ballot. expressly ment. The Restatement disclaims any attempt agency-like to cover relation Accordingly, disagree I with the court's ships arising by by statute rather cons removing judges decision from the bench. Here, ent.43 the Council's to evaluate view, my In unnecessary removal a as report candidates and its evaluations to the matter, practical matter of a unsound as specific provision Division arises under a and justice disserves the interests of and law; always interpreted the Council has Despite voters alike. widespread publicity requiring mandate as evaluate concerning judges' despite violations and judges actually "standing for reten heavily publicized legal controversy gen- tion"-not all eligible to be on conduct, erated their the electorate voted ballot; judges effectively give their "con to retain by margins both fell sent" to have their declarations of solidly within the norm received other filed with the Division when submit on the same Removing ballot. questionnaires to the Council- from nullify the bench will the clear thereby authorizing fully to treat intent of a informed electorate. At the them deprive as declared candidates same time it people and to inform will of Alaska easily the Division of its of a resource replaced: judges' evaluation of them as standing knowledge, experience, training, candidates for retention. judg-

ment. Removalwill needlessly also force the system IV. SUMMARY and the state to absorb cost disruption recruiting, appointing, Summary A. of Position on Removal training judges-all new in the name of strict from Office compliance. Yet strict is not a short, by goal choosing itself. And it can purpose to submit the Coun- serve no as remedy questionnaire, cil's judge ultimately inattentive conduct causes systemic design, to be filed with had no the Division an substantive conse- evaluation officially the Councilthat quences-and confirms the apparently never caused a shred of actual doubt judges' about the inten- declared retention candidate and run tions to for retention. judge's qualifications evaluates the as a can- timely didate. When filed before the B. Violations Judicial Conduct deadline, the Council's evaluation meets the Code/Attorney's Fee Award statutory requirement for a declara- filed By the Division. no I suggest judges' means do that the inattention to the And require supplies Division's formal because it all information re- Acency (SEconp) 1, 7, (Seconp) AcEncy], §§ 42. See Restatement with [in the Restatement (1958). provides where a statute that service of may upon designated public be made official as ("Likewise, Scope Id. Note at 2 various cases 'agent' ..."). for a non-resident motorist. representation of non-consensual are not dealt bar justice must the interests of equity and contrary, To condoned. should be ment recovering prevailing-party personal file failure to though their even fees, though their non-com attorney's even merely techni out to be turned declarations violations, inattention removing them not warrant pliance cal does com failed to require the Today's opinionwill nevertheless filing requirement from office. duty to maintain ethical with their port attor its award of to vacate superior court Al judicial conduct.44 highest standards I judges. To this extent ney's fees not war does noncompliance here though the opinion. concur in the certainly war removal, I think rant Commission investigation rants CONCLUSION v. repri imposition of justifies potentially reason, I the same For a sanction. mand as today's reasons, I dissent For superior court's conclude would removed from ordering decision fees to prevailing-party award vacating concur the bench but technical viola Even as inappropriate. was of fees. court's award con raised serious tions, judges' conduct litigation. to this led predictably cerns by the raised issues the novel Given compelling nature and the conduct laws, Alaska's duty to enforce

state's hardly have state could Division judges' viola to overlook expected been view, my or not. technical tions-whether Conduct, Canon of Judicial Alaska Code

44. See

Case Details

Case Name: State v. Jeffery

Court Name: Alaska Supreme Court

Date Published: Nov 9, 2007

Citation: 170 P.3d 226

Docket Number: S-12101

Court Abbreviation: Alaska