State v. Jeffery

¶1OPINION

¶2I. INTRODUCTION

¶3The question presented here is whether two sitting Alaska judges complied with AS 15.85.070 and .110, which require judges seeking retention in office to file "declarations of candidacy for retention" with the Alaska Division of Elections "no later than August 1." The two judges filed their declaration of candidacy forms after the statutory filing deadline had passed. The Division of Elections determined that both judges were ineligible to stand for retention. The superi- or court ultimately concluded that the division had abused its discretion in making that determination because the judges had substantially complied with the filing requirements. Because we conclude that the division's determination was supported by the facts and had a reasonable basis in law, we reverse and order the judges to vacate their seats within ninety days after this opinion takes effect per Appellate Rule 507(b).

¶4It is easy and natural to be sympathetic to the appellees, given both the harshness of the result and the appellees' outstanding ree-ord for public service as judges, but the outcome here is compelled by unambiguous statutes.

¶5I. FACTS AND PROCEEDINGS

¶6Alaska judges wishing to retain their offices periodically stand for retention.1 The Alaska Judicial Council (the council) is the agency charged with evaluating judges seeking retention and providing the public with information about those judges.2 In November 2003 the council began the evaluation process for all possible 2004 retention candidates by sending questionnaires to each of the twelve judges who were potentially required to stand for retention in the 2004 general election. The questionnaires requested certain background information from the judges, such as the types of cases they had handled in the previous term of office and whether they were involved in any legal or disciplinary matters. Both Superior Court Judge Michael I. Jeffery and District Court Judge Naney Nolan promptly returned their completed questionnaires to the council. Two of the other ten judges required to stand for retention in 2004 if they wished to retain their judgeships did not return the questionnaires and informed the council they *229would not stand for retention. In January 2004 the council began the evaluation process for the ten judges seeking retention, including Judge Jeffery and Judge Nolan.

¶7On June 8, 2004 the Division of Elections (the division) asked the council for the mailing addresses of the judicial retention candidates so the division could send them information about the Official Election Pamphlet. The council replied that same day by emailing the division the addresses for the ten judges, including Judge Jeffery and Judge Nolan. The following day, the division sent letters to the ten judges reminding them of the August 7 deadline for submitting their materials for inclusion in the voter pamphlet. The division's letter came in two versions. The version sent to Judge Jeffery and Judge Nolan began with the introductory clause "[allthough you have not yet filed for judicial retention," and then reminded them that "August 1 is the deadline to file for judicial retention." The other version, sent to judges who had already filed for retention, instead stated, "you have filed for retention."

¶8In early July the council completed its evaluations of the ten judges, and on July 15 it e-mailed the division its retention and rejection recommendations for inclusion in the election pamphlet. This July 15 e-mail included the council's recommendations regarding both Judge Jeffery and Judge Nolan. Because the council found both judges to be qualified, the council members unanimously recommended that they both be retained.3

¶9The statutory deadline for filing judicial declarations of candidacy for retention with the division was August 1.4 Neither judge filed a declaration of candidacy with the division by that date.

¶10On August 16 Judge Jeffery wrote a letter to the division requesting an extension of the filing deadline and enclosing his declaration of candidacy form. The letter stated that "I realize these documents are late." He had executed his declaration on August 16. On August 19 Judge Nolan wrote a letter to the division enclosing her declaration of candidacy form. Her letter stated that "[tloday it came to my attention that I failed to timely file the Declaration of Candidacy for the 2004 judicial retention election." She had executed her declaration on August 19. In response, the division informed Judge Jeffery it could not extend the deadline and informed Judge Nolan it would not place her name on the ballot.

¶11The two judges then filed separate complaints seeking injunctive and declaratory relief. Each sought and obtained a temporary restraining order and preliminary injunction requiring the division to put their names on the 2004 ballot and to accept their submissions for the election pamphlet. In the November 2004 election both judges were retained by their respective electorates.

¶12The judges' cases were consolidated and all parties moved for summary judgment. The superior court concluded that because both judges had substantially complied with the statutory filing requirements the division had abused its discretion in not placing their names on the ballot.

¶13The state and the Director of the Division of Elections appeal.

¶14III. STANDARD OF REVIEW

¶15We review the superior court's grant of summary judgment de novo, drawing all factual inferences in favor of, and viewing the facts in the light most favorable to, the non-prevailing party.5 Questions regarding the interpretation and application of a statute are questions of law to which we apply our independent judgment.6 If the question of law involves agency expertise, *230however, we will apply the rational basis test and defer to the agency's interpretation as long as it is supported by the facts and has a reasonable basis in law.7 A "statutory construction adopted by those responsible for administering a statute should not be overruled in the absence of weighty reasons."8

¶16We interpret the Alaska Constitution and the Alaska Statutes "according to reason, practicality, and common sense, taking into account the plain meaning and purpose of the law as well as the intent of the drafters." 9

¶17IV. DISCUSSION

¶18A. Judge Jeffery and Judge Nolan Did Not File Declarations of Candidacy by the Statutory Deadline.

¶19Alaska Statute 15.85.070 provides: "[elach judge seeking retention in office shall file with the director a declaration of candidacy for retention no later than August 1 before the general election at which approval or rejection is requisite." 10 Alaska Statute 15.35.110 provides: "[elach district judge seeking retention in office shall file with the director a declaration of candidacy for retention no later than August 1 before the general election at which approval or rejection is requisite." 11 The "director" means the "director of elections." 12 The Division of Elections concluded that Judge Jeffery failed to comply with AS 15.35.070 and that Judge Nolan failed to comply with AS 15.35.110. The question here is whether that conclusion is correct.

¶20The judges raise two main arguments on appeal. First, they argue that they strictly, and not just substantially, complied with the August 1 filing deadline by virtue of the June 8 and July 15 communications between the council and the division. Alternatively, they argue that we should apply the substantial compliance standard to judicial retention election filing deadlines and hold that they substantially complied with the August 1 deadline when they filed their declaration of candidacy forms in mid-August. We address these arguments in turn.

¶211. The June 8 and July 15 communications between the council and the division were not the judges' declarations of candidacy.

¶22The superior court found that both judges failed to "supply the Division with a formal statement declaring their candidacy." It nevertheless concluded that the judges met their statutory filing obligation because "Itlhe documents filed with the Division in the context of the judges' performance of other mandatory acts constituted" substantial compliance with the requirements of AS 15.35.070 and .110. On appeal Judge Jeffery and Judge Nolan do not argue that the two communications the council sent to the division on June 8 and July 15 merely substantially complied with the statutory requirements; they instead argue that those communications strictly complied with the statutory requirements.

¶23They argue that because the Election Code, Title 15 of the Alaska Statutes, does not define "declaration of candidacy," we must interpret that phrase in accordance with its commonsense meaning. They argue further that the June 8 and July 15 communications between the council and the division qualify as declarations of candidacy under this commonsense definition because the communications "clearly relayed to the Division the fact that these judges had told the Council that they personally had declared their candidacy for retention." Their argument contains two contentions. First, that the judges "unambiguously declared their candidacy" to the council by completing the council's questionnaire. Second, that in its *231June 8 and July 15 e-mails, the council "unambiguously advised the Division that [Judge Jeffery and Judge Nolan] had stated their intent to stand for retention." The judges reason that the council's two communications are "declarations of candidacy" because each communication contained all the requisite information.

¶24The Judiciary Article of the Alaska Constitution specifies that every superior court judge shall be subject to a retention vote in the first general election held more than three years after appointment and every sixth year thereafter.13 It also states that a superior court judge's office becomes vacant ninety days after an election for which the judge fails to file a "declaration of candidacy" to succeed himself or herself.14 The framers of the constitution left the "details of such declaration such as its form and the time limits for its filing" to the legislature.15

¶25In response, the legislature established identical requirements for declarations of candidacy at every level of the judicial system: each judge must "file with the director [of the division] a declaration of candidacy for retention no later than August 1 before the general election at which approval or rejection is requisite." 16 The legislature only authorized the division to place on the ballot the names of judges who "properly filed a declaration of candidacy for retention."17 But other than requiring judges to designate the district in which they will seek retention,18 the statutes are silent with regard to what substance a filing must have to be considered a judge's "declaration of candidaCy.”

¶26That the legislature provided little guidance to the division as to whether a given communication qualifies as a "declaration of candidacy" necessarily grants the division a certain degree of discretion in making that determination. In other words, whether a given filing satisfies the statutory requirement that each judge file with the director a declaration of candidacy is a question that involves the division's expertise.19 We will defer to an agency's interpretation of a question of law that involves agency expertise so long as the interpretation is supported by the facts and has a reasonable basis in law.20 Here, the division did not consider the June 8 or -July 15 communications by the council to be the judges' declarations. of candidacy. The judges argue and the superior court concluded that this was an abuse of the division's discretion. But because its determination was supported by the facts and had a reasonable basis in law, the division is entitled to deference for both its interpretation of the constitution and the applicable statutes and for its application of the law to the cireumstances presented in this case.

¶27*232As Judge Jeffery and Judge Nolan observe, the Election Code does not define the term "declaration of candidacy." Because these words have not "acquired a peeu-lar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage." 21 Black's Law Dictionary defines a declaration as "[al] formal statement, proclamation, or announcement, [especially] one embodied in an instrument."22 Webster's Dictionary similarly defines a declaration as "a formal statement; proclamation." 23 Further, the Election Code refers to the declaration as something that each judge shall "file," 24 which Black's Law Dictionary defines as a verb meaning "[to deliver a legal document to the court clerk or record custodian for placement into the official record." 25

¶28The division contends that the phrase "declaration of candidacy" refers to a document that, at a minimum, must "contain a personal, affirmative declaration of the judge to be a candidate." We defer to this definition because it comports with common usage of the terms "file" and "declaration." The superior court's conclusion that both judges failed to "supply the Division with a formal statement declaring their candidacy," if correct, would therefore be fatal to the judges' argument that they filed "declarations of candidacy."

¶29The superior court's conclusion in this regard appears to be supported by the evidence. The two documents that the judges claim qualify as their declarations are an emailed address list of judges sent by the council to the division on June 8 and the council's recommendations regarding the ten judges (some of whom had already filed their declarations of candidacy with the division), sent on July 15. Neither communication expressly declared that either Judge Jeffery or Judge Nolan held a present intent to stand for retention. Neither communication indicated that it was being made for the purpose of conveying any such intent or for the purpose of satisfying AS 15.85.070 and AS 15.35.110. Neither communication referred to the declaration statutes at all, and the July 15 e-mail referred instead to the "Council's contribution to the voter pamphlet," a subject governed by a different statute and a different deadline. Neither communication indicated that the council was discharging any duty imposed on either judge to communicate with the division, or that the judges had given the council permission to do so. The council's purpose for the communications was most obviously to satisfy the council's own constitutional and statutory obligations; 26 nothing implied a purpose of satisfying the candidates' own obligations to the division. And if the council had actually also intended to satisfy the declaration statutes, one would expect the council's communications to have expressly invoked the declaration statutes and mimicked the operative statutory language. The meticulous care the council took in informing these judges of their duty to file a declaration with the division by August 1 is inconsistent with reading the two communications to be those declarations.27

¶30The division's determination that the judges failed to file declarations of candidacy is a reasonable interpretation of the constitu*233tional and statutory requirements and is supported by the facts. It was therefore error for the superior court to conclude that the division abused its discretion in determining that the council's two communications did not qualify as the judges' declarations of candidacy.27

¶31To the extent the judges and the dissent seem to argue that the judges "declared" their candidacies by responding to the council's evaluation in November 2003, we are unpersuaded. The controlling statutes require that the declarations be filed with the division of elections, not with the judicial council.

¶32We are also unconvinced by the dissent's contention that the council's evaluations can be considered to be declarations of candidacy and that "since the Council is obligated by law to act on and inform the Division of the judge's declaration, a judge who submits an official declaration of candidacy to the Council meets the burden of making an affirmative declaration no less effectively than by submitting it directly to the Division." 28 First, it fruitlessly confuses the inquiry, and the relevant terminology, to say that a judge submitted a "declaration" to the council. A response to the questionnaire is no "declaration" within the meaning of the controlling statutes. Nothing requires or permits a judge to submit a "declaration" of any sort to the council, much less a declaration satisfying the two declaration statutes at issue here. Moreover, because we hold in Part IV.A2 that AS 15.35.070 and AS 15.35.110 require strict compliance, even if we assume that the council could satisfy the declaration statutes, it certainly could do so only if it indeed filed a "declaration" satisfying the division, and presumably only after the judges gave it authority to do so. The council, by performing its own specified duties, has no implicit or explicit incidental authority or responsibility to convey declarations of candidacy to the division. And, as we will see in the next part of our discussion, there is no evidence in this case contemporaneous with the filing deadline that suggests the candidates had given the council authority to declare their candidacies, or that they thought the council's communications with the division had relieved them of their duty to file declarations of candidacy with the division.

¶332. Strict compliance with the filing deadline is required.

¶34The judges also argue that, even if we hold that the June 8 and July 15 communications did not satisfy the statutory requirements, we should affirm the superior court on the alternative ground that judicial retention candidates need only substantially comply with election filing deadlines. The judges argue that strict compliance is only appropriate with regard to non-judicial candidates because they have to supply much more information than their judicial counterparts, presumably because information about judges is already available in the public ree-ords. They also point out that strict compliance is justified in the political arena because it prevents potential "gamesmanship," by which a candidate could otherwise wait until the last minute to decide to run after first seeing who else filed. This concern does not carry over to judicial retention elections because judicial candidates are unopposed.

¶35The judges substantially complied with the August 1 deadline, they argue, when they filed their declaration of candidacy forms with the division in mid-August. The judges argue that those filings substantially complied with the deadline because the division "was not hampered in its preparations for the election" since the council had previously provided the necessary information. Further, they contend that although their mid-August filings were after the deadline, they were filed "comfortably before the Division's deadlines for printing ballots and election pamphlets."

¶36 "[Where the election statutes fix a date for filing petitions or certificates of *234candidacy, such documents must be filed before the expiration of the time fixed, and [the] election officials may not exercise any discretion in the matter."29 In Falke v. State we stated that it is "well established, both in Alaska and in other jurisdictions, that election law filing deadlines are to be strictly enforced. Strict compliance is the rule, and substantial compliance the rare exception." 30 Because filing dates are mandatory, "substantial compliance is not sufficient, absent substantial confusion or 'impossibility.' 31

¶37Thus far we have permitted substantial compliance with an election filing deadline in only one case. In Silides v. Thomas, the candidate did not strictly comply with the deadline for filing his financial disclosure statement.32 'We held that the election statutes that required Silides to simultaneously file his financial disclosure statement in Anchorage and his declaration of candidacy in Juneau were inherently unclear and impossible to comply with.33 Because of the "lack of clarity inherent in" the statute and "the impossibility of compliance," we departed from the "normally salutary doctrine that election deadlines must be strictly construed and strictly enforced" and held that substantial compliance was sufficient.34 In Division of Elections v. Johnstone, we did not rely on a substantial compliance theory, but we allowed Judge Johnstone to remain on the bench even though he failed to file his declaration of candidacy by the deadline.35 We excused Judge Johnstone's failure to timely file his declaration of candidacy because we concluded that the Alaska Constitution was ambiguous with regard to when he was required to stand for retention.36 Judge John-stone was not given any special treatment, however, because of his status as a judge. He was effectively given the same treatment as Silides, a non-judge.

¶38In both Silides and Johnstone, we did not require strict compliance. But in both cases we held that statutory or constitutional ambiguity, and not a candidate's oversight, justified departure from the strict compliance standard.37 Because the August 1 declaration deadlines cannot reasonably be considered ambiguous or impossible to comply with, there is no justification for departing from the strict compliance standard here.

¶39The dissent may reason that the statutory retention process was confusing or that the statutes were somehow ambiguous.38 There is no ambiguity in the clear language of AS 15.85.070 or AS 15.85.110 or in any of the procedures. There is no basis for importing a substantial compliance factor into their text.

¶40As confirmation of that proposition, it is clear that no one was confused in June or July, or before August 19, 2004, or had any doubt about what the declaration statutes required. On June 9 the division sent the two judges letters stating "you have not yet filed for judicial retention.... August 1 is the deadline to file for judicial retention." In comparison, the division sent different letters to those judges who had filed a declaration; those letters stated "you have filed for retention." On July 15, the same day the council sent its July 15 e-mail to the division, the council also sent a memo to the ten judges, explaining both the duty to file a timely declaration and the consequences of failing to file on time:

*235In order to continue as a judge past next January, state statutes require you to file with the Director [of Elections] a declaration of candidacy ... no later than August 1.... If you do not file this declaration of candidacy with the Director of Elections on or before August 1, your name will not appear on the ballot this fall and your term as judge will end ninety days after the election.

¶41This message unambiguously conveyed the clear statutory requirements and consequences. Given this message from the council to the judges, neither the council nor the judges could have thought any communication between the council and the division could satisfy the declaration statutes. And on August 16, 2004, when Judge Jeffery submitted his declaration of candidacy to the division, he stated in his accompanying letter "I realize these documents are late." On August 19, 2004, when Judge Nolan submitted her declaration of candidacy, she stated in her letter "(today it came to my attention that I failed to timely file the Declaration of Candidacy." These communications are inconsistent with any notion that the statutes or the procedures were ambiguous or confusing or that the council or reasonable persons could have thought that communication by the council with the division would relieve or had relieved the judges of their statutory duty to file declarations of candidacy with the division.

¶42Furthermore, the declaration statutes effectively require a candidate to communicate to the division the candidate's current intention to stand for retention. The August 1 deadline chosen by the legislature is late enough in the election sequence that it provides an accurate declaration of each candidate's current intentions, unlike anything that might be inferred from whatever the judge may have told the council the prior November, before the evaluation process began.39 Likewise, the August 1 declaration deadline allows jurists previously interested in retention to silently drop out before publication of any adverse evaluation by the council or adverse information from the Judicial Conduct Commission.40 This might explain why the legislature adopted the August 1 deadline for declaring candidacy for retention 41 and the August 7 deadline for submitting information for inclusion in the election pamphlet.42

¶43*236A substantial compliance standard is thus inconsistent with both the text of the controlling declaration statutes and with the way the division, the council, and even the judges interpreted the declaration statutes on or before August 19, 2004.43

¶44B. The Judges Must Vacate Their Seats Within Ninety Days.

¶45Having determined that the judges failed to file declarations of candidacy by the statutory deadline, we now consider the appropriate remedy. The superior court concluded that the forfeiture sanction would be inappropriate. It reasoned that because it had found that the judges' "filing snafus" would not impact the election process, the hardship that vacation would cause on both the judges personally as well as the "constitutional retention election system and the electorate" would be too severe.

¶46On appeal Judge Jeffery and Judge Nolan argue that, under Johnstone,44 we should weigh the hardship of our remedy on the judges and on the electorate against the hardship caused to the public from the judges' failure to timely file their declarations of candidacy. They note the personal hardship that would be imposed on them if they were required to forfeit their offices. More importantly, they argue, the public was unharmed by their actions because it had ample time to consider whether to support or oppose their candidacies. They observe that the council: (a) treated the judges as candidates when it conducted surveys in early 2004, (b) held a public hearing on the judges in May 2004, (c) issued a press release announcing that it supported the judges' retention on July 26, and (d) listed the judges as candidates on its website "many months before the election."

¶47The constitution states in part that a superior court judge's office "becomes vacant ninety days after the election ... for which he fails to file his declaration of candidacy to succeed himself."45 The legislature mirrored this wording when it enacted the two statutes that regulate when a superior court or district court judge's office becomes va-cant.46 We interpret the Alaska Statutes "according to reason, practicality, and common sense, taking into account the plain meaning and purpose of the law as well as the intent of the drafters." 47 The plain meaning of the constitution and the statutes is that vacation is the mandatory consequence for a judge's failure to file a declaration of candidacy.

¶48Johnstone can be differentiated from this case. In Johnstone we held that we were establishing a new principle of civil law.48 We therefore analyzed the hardship to Judge Johnstone and the electorate to determine whether our holding should only apply prospectively.49 If our holding had not established a new principle of law, however, in the sense that it had not "overrule[d]) prior law or decide[d] an issue of first impression," the threshold test for prospective application would not have been met 50 and our analysis *237of the hardship of our holding would not have been triggered.

¶49Here, the law is clear that, absent statutory ambiguity, strict compliance with election filing deadlines is required,51 and the penalty for noncompliance is mandatory vacation of office.52 We have no doubt that requiring Judge Jeffery and Judge Nolan to vacate their office will lead to personal hardship. This must seem like a bitter reward for years of extraordinary public service by both judges. But because we are not establishing a new principle of law by holding that the judges' failure to meet the filing deadline triggered the mandatory vacation sanction, our decision is constrained by the controlling legal principles. It was error to rule that the hardship to the judges and electorate precluded application of the forfeiture sanction.53

¶50v. CONCLUSION

¶51Because the division's determination that Judge Jeffery and Judge Nolan failed to file declarations of candidacy by the August 1 deadline was supported by the facts and had a reasonable basis in law, we REVERSE the superior court's judgment and ORDER the appellees to vacate their seats within ninety days after this opinion takes effect per Alaska Appellate Rule 507(b).54