Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
ALASKA JUDICIAL COUNCIL, )
LARRY COHN, Executive Director ) Supreme Court Nos. S-14874/14893
of the Alaska Judicial Council, )
GAIL FENUMIAI, Director of the ) Superior Court No. 3AN-10-11796 CI
Division of Elections, and STATE OF
)
ALASKA, Division of Elections, ) OPINION
)
Appellants and ) No. 6938 – August 8, 2014
Cross-Appellees, )
)
v. )
)
SUSAN KRUSE, DENNY WELLS, )
JAY HANSON, ALIYSHA MARTIN, )
VICKI THOMPSON, VICTORIA )
SHAMP, LISA WELLS, ALLISON )
L. BISS, DANIEL J. ALPERT, and )
NANCY D. LEE, )
)
Appellees and )
Cross-Appellants. )
________________________________ )
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Michael Spaan, Judge.
Appearances: Ruth Botstein, Assistant Attorney General,
Anchorage, and Michael C. Geraghty, Attorney General,
Juneau, for Appellants/Cross-Appellees. Stephanie D. Patel,
Law Office of Stephanie Patel, Anchorage, for
Appellees/Cross-Appellants.
Before: Winfree, Stowers, Maassen, and Bolger, Justices.
[Fabe, Chief Justice, not participating.]
STOWERS, Justice.
I. INTRODUCTION
In 2010 the Alaska Judicial Council recommended that the electorate not
retain a sitting district court judge. Susan Kruse and a handful of other voters1
challenged the constitutionality of AS 22.15.195, which grants the Council power to
make such recommendations. The superior court concluded that the statute is
constitutional but enjoined the Council from releasing new information about the judge
in the 60 days prior to an election. On appeal, we hold that AS 22.15.195 is
constitutional and does not limit the Council’s dissemination of new information. We
thus affirm the superior court’s ruling in part but reverse and vacate the superior court’s
injunction prohibiting the Council’s public dissemination of new information in the 60
days preceding an election.
II. FACTS AND PROCEEDINGS
The Alaska Constitution provides that each “judge shall . . . be subject to
approval or rejection on a nonpartisan ballot.”2 The frequency of these retention
elections varies for supreme court justices and judges of the court of appeals, superior
court, and district court.3 Relevant to this appeal, a district court judge “shall be subject
to approval or rejection at the first general election held more than two years after the
1
For simplicity we refer to the appellants collectively as Kruse.
2
Alaska Const. art. IV, § 6; see Alaska Const. art IV, § 4 (“Judges of other
courts shall be selected in a manner, for terms, and with qualifications prescribed by
law.”); AS 15.35.100 (“Each district judge shall be subject to approval or rejection at the
first general election held more than two years after the judge’s appointment . . . . If
approved, the judge shall thereafter be subject to approval or rejection in a like manner
every fourth year.”). Although AS 15.35.100 controls the retention of district court
judges, we cite to the Alaska Constitution because the Constitution first adopted the
retention system.
3
See Alaska Const. art. IV, § 6; Alaska Const. art. IV, § 4; AS 15.35.100.
-2- 6938
judge’s appointment” and “every fourth year” thereafter.4 The Alaska Judicial
Council — which consists of three members of the public, three attorneys, and the Chief
Justice of the Alaska Supreme Court — is tasked with implementing the retention
election system. The legislature has delineated these duties in AS 22.15.195, which
provides that the Council will “conduct an evaluation of each judge before the retention
election and . . . provide to the public information about the judge and may provide a
recommendation regarding retention or rejection.” Since 1976 the Council has
recommended non-retention of a judge only twelve times, and seven of those times the
voters have nonetheless voted to retain the judge.5
In July 2010 the Council recommended that a sitting district court judge not
be retained in the November 2, 2010 election. The Council cited “mental health
difficulties” and “constant friction between [the judge] and other judges, court
administrators, and court staff.” The Council also released the numerical scores of the
evaluation of the judge;6 the judge was rated as acceptable to good. After the
recommendation was released there was extensive media coverage, including a post by
4
AS 15.35.100(a).
5
After we heard oral argument in this appeal, the Judicial Council issued its
recommendations for retention of judges standing for retention election in the
November 2014 general election. The Council recommended non-retention of one
judge, bringing the number since 1976 to twelve judges. 2014 Retention Information,
ALASKA JUDICIAL COUNCIL, http://www.ajc.state.ak.us/retention/retent2014/ret2014.html
(last visited July 21, 2014). It remains to be seen whether the electorate retains this
judge.
6
As part of its evaluation process, the Council obtains ratings from members
of the Alaska Bar Association, jurors, police officers, court employees, and others, who
rate judges standing for retention election on a number of subjects, including legal
ability, diligence, temperament, and impartiality. The Council reports the results of the
ratings as part of its evaluation provided to the public.
-3- 6938
a local blogger questioning the recommendation, an opinion piece in the Anchorage
Daily News by the Council’s executive director, and radio interviews with both the judge
and the Council’s executive director. The Council also hired a well-known local figure
to be its spokesperson for purposes of explaining its recommendation not to retain the
judge.
Kruse filed her first complaint on October 29, 2010, a few days prior to the
election. The retention election took place on November 2, and the judge was not
retained. Kruse filed an amended complaint on November 18, alleging five causes of
action, mainly relating to the extent of the Council’s advertising in the judge’s retention
election,7 but also attacking the constitutionality of AS 22.15.195, which allows the
Council to make recommendations.8 The election was certified on December 1, 2010,
over Kruse’s objections. And on December 15, 2010, the judge stipulated, as part of an
agreement with the Alaska Commission on Judicial Conduct, that he would “at no time
in the future seek or hold a position as a judicial officer in the State of Alaska.”9
7
The amended complaint alleged that: (1) the Council failed to meet its duty
to provide information; (2) the Council “violated the public trust” by selectively
releasing material; (3) the Council exceeded its statutory authority by taking an
adversarial role; and (4) the Council’s actions were a “corrupt practice” under
AS 15.20.540. The superior court found these claims moot because the election had
already occurred by the time the case was ripe for decision. On appeal Kruse has
“waive[d] specific consideration of the issue of mootness as to those issues that are not
specifically related to the constitutionality of the . . . statute.”
8
AS 22.15.195 provides: “The judicial council shall conduct an evaluation
of each judge before the retention election and shall provide to the public information
about the judge and may provide a recommendation regarding retention or rejection.”
9
The Alaska Commission on Judicial Conduct, which investigates
allegations of judicial misconduct, filed a complaint against the judge on April 30, 2010.
The judge answered on June 1 denying the allegations and arguing that he was being
(continued...)
-4- 6938
Kruse moved for summary judgment on her fourth cause of action — the
constitutionality of AS 22.15.195 — arguing that it conflicts with various sections of the
Alaska Constitution. In the alternative, she contended that the Council exceeded its
statutory authority by engaging in “executive patronage” and by releasing information
about the judge in the 60 days before the election. The Council filed a cross-motion for
summary judgment, arguing that the constitutional challenge was moot and, if not, the
Alaska Constitution gives the legislature a broad grant of power to delineate the duties
of the Council.
The superior court concluded that although “[Kruse] would not be entitled”
to the majority of the relief she requested, the constitutional claims were “subject to
limited review for declaratory relief.” The court concluded that AS 22.15.195 is
constitutional because article IV, section 9 of the Alaska Constitution gives a broad grant
of power to the legislature to decide the duties and powers of the Council. But the court
determined that the statute does not allow the Council to publish new information within
60 days of an election. It concluded that the legislature wanted to give judges time to
withdraw from the retention election if they received an unfavorable evaluation, and
allowing the Council to publish new information would conflict with this purpose.
Finally, the court denied both parties’ motions for attorney’s fees because it concluded
that it was “inappropriate to award attorney’s fees on Plaintiff’s constitutional claim,
and . . . neither [the Council] nor [Kruse] can be considered the ‘prevailing party’ for
purposes of awarding attorney’s fees.”
9
(...continued)
retaliated against for reporting workplace discrimination. The judge moved to dismiss
the charges on September 24. After he was not retained, the judge entered into a
stipulation with the Commission whereby he agreed to be publicly censured and never
again hold judicial office in Alaska.
-5- 6938
The Council moved for a stay of the ruling prohibiting dissemination of
new information pending appeal, arguing that the injunction barring it from releasing
new information would have drastic, unintended policy consequences in the coming
retention elections. The superior court granted the stay, noting that “[g]iven the factual
context of this case, the question of whether the [Council] may publish new information
in support of a judge within the 60 days preceding a retention election was not properly
before the Court.” (Emphasis in original.) The court concluded that it was “unclear as
to whether this was the intent of the legislature” and explained that “certain policy
concerns may lead to a different result.”
Both the Council and Kruse appeal. The Council appeals the superior
court’s order that it cannot release new information in the 60 days preceding an election;
Kruse appeals the superior court’s ruling upholding the constitutionality of AS 22.15.195
and the court’s decision regarding attorney’s fees under Rule 82.10
III. STANDARD OF REVIEW
“We apply our independent judgment in determining mootness because, as
a matter of judicial policy, mootness is a question of law.”11 We also “review
constitutional questions independently”12 and “adopt the rule of law that is most
persuasive in light of precedent, reason, and policy.”13 “The interpretation of a
10
It is unclear whether on appeal Kruse is arguing that she “prevailed” on the
constitutional issues as well. But, as we do not reach the merits of the attorney’s fees
appeal, we do not attempt to discern her arguments.
11
Akpik v. State, Office of Mgmt. & Budget, 115 P.3d 532, 534 (Alaska 2005)
(citing Ulmer v. Alaska Rest. & Beverage Ass’n, 33 P.3d 773, 776 (Alaska 2001)).
12
Alaskans for Efficient Gov’t, Inc. v. State, 153 P.3d 296, 298 (Alaska 2007).
13
Schweitzer v. Salamatof Air Park Subdivision Owners, Inc., 308 P.3d 1142,
1147 (Alaska 2013) (quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979))
(continued...)
-6- 6938
statute . . . is a question of law to which we apply our independent judgment,”14 “taking
into account the plain meaning and purpose of the law as well as the intent of the
drafters.”15
IV. DISCUSSION
There are three main issues on appeal: (1) whether Kruse’s constitutional
challenge is moot; (2) whether AS 22.15.195 is constitutional; and (3) whether
AS 22.15.195 prohibits the Council from releasing new information in the 60 days prior
to a retention election. Kruse also appeals the superior court’s denial of her motion for
attorney’s fees.
A. The Constitutional Claims Are Not Moot.
The Council argues that the superior court erred by reaching the merits of
AS 22.15.195’s constitutionality and scope. The Council believes these issues are moot
because they “were rooted in the [Council]’s allegedly misleading communications about
[the judge] in particular.” In response, Kruse argues that the controversy “continues to
flourish” because Kruse’s “claims . . . were much broader than the [Council] contend[s].”
We will not consider claims “where events have rendered the legal issue
moot.”16 A claim can be moot either because “it has lost its character as a present, live
13
(...continued)
(internal quotation marks omitted).
14
West v. State, Bd. of Game, 248 P.3d 689, 694 (Alaska 2010) (citing Parson
v. State, Dep’t of Revenue, Alaska Hous. Fin. Corp., 189 P.3d 1032, 1036 (Alaska
2008)).
15
Native Vill. of Elim v. State, 990 P.2d 1, 5 (Alaska 1999) (citing Alaska
Wildlife Alliance v. Rue, 948 P.2d 976, 979 (Alaska 1997)).
16
Mullins v. Local Boundary Comm’n, 226 P.3d 1012, 1017 (Alaska 2010)
(quoting Kodiak Seafood Processors Ass’n v. State, 900 P.2d 1191, 1195 (Alaska 1995))
(continued...)
-7- 6938
controversy,” or because “the party bringing the action would not be entitled to any relief
even if it prevails.”17 A court may “declare the rights and legal relations of an interested
party,” but only “[i]n [the] case of an actual controversy.”18 In order to be an “actual
controversy,” the controversy “must be a real and substantial controversy admitting of
specific relief through a decree of a conclusive character, as distinguished from an
opinion advising what the law would be upon a hypothetical state of facts.”19 We have
noted that “[m]ootness is particularly important in a case seeking a declaratory judgment
because there is an added risk that the party is seeking an advisory opinion.”20
Claims for declaratory relief are commonly moot when the statute or
regulation at issue is no longer in effect or has been amended. In Kodiak Seafood
Processors Association, the Commissioner of the Alaska Department of Fish and Game
issued a permit allowing exploratory scallop fishing in an area of Kodiak previously
closed to scallop fishing.21 The Kodiak Seafood Processors Association brought suit
requesting a declaration that the Commissioner had exceeded his authority, but, before
16
(...continued)
(internal quotation marks omitted).
17
Id. (quoting Ulmer v. Alaska Rest. & Beverage Ass’n, 33 P.3d 773, 776
(Alaska 2001)) (internal quotation marks omitted).
18
AS 22.10.020(g).
19
Jefferson v. Asplund, 458 P.2d 995, 999 (Alaska 1969).
20
Kodiak Seafood Processors Ass’n, 900 P.2d at 1195; Ahtna Tene Nene v.
State, Dep’t of Fish & Game, 288 P.3d 452, 457-58 (Alaska 2012) (“Even in a
declaratory judgment case . . . where the rights or obligations of parties are delineated
by the court, courts should avoid becoming involved in premature adjudication of
disputes that are uncertain to occur.” (quoting Ulmer, 33 P.3d at 776) (internal quotation
marks omitted)).
21
Kodiak Seafood Processors Ass’n, 900 P.2d at 1193.
-8- 6938
the court could hear the case, the permit expired.22 We held that the question whether
the Commissioner had exceeded his authority was “technically moot.”23 Similarly, in
Vanek v. State, Board of Fisheries, commercial salmon fishers challenged a Board of
Fisheries regulation as a taking.24 We held that the issue was “likely . . . moot” because
“the challenged board regulations ha[d] been amended.”25
Unlike those cases, AS 22.15.195 is still in effect and in the same form as
at the start of this litigation. Moreover, Kruse did not frame her fourth cause of
action — the constitutionality of AS 22.15.195 — in terms of the specific judge. Instead,
Kruse asked for declaratory relief that AS 22.15.195 is “unconstitutional to the extent it
directs the Alaska Judicial Council to make recommendations concerning judicial
retention.” The Council’s argument that “[a]t its core, this case was an election contest”
is incorrect; the controversy is broader than the specific judge’s election. The parties are
adverse, and we are able to grant relief in the form of a declaration on the
constitutionality of AS 22.15.195. Thus, Kruse’s constitutional claims are not moot.
B. The Superior Court Did Not Err By Concluding That AS 22.15.195 Is
Constitutional.
Alaska Statute 22.15.195 provides that “[t]he judicial council . . . may
provide a recommendation regarding retention or rejection.” Kruse argues that allowing
a state agency to take a “biased position on any ballot measure” “stifles the very
22
Id. at 1193-95.
23
Id. at 1196; see also Alaska Cmty. Action on Toxics v. Hartig, 321 P.3d 360,
366 (Alaska 2014); Ahtna Tene Nene, 288 P.3d at 458 (holding that a request for
declaratory relief was moot because the challenged regulation was amended and no
longer operative).
24
Vanek v. State, Bd. of Fisheries, 193 P.3d 283, 286 (Alaska 2008).
25
Id. at 287.
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foundation of democracy.” As the party challenging the constitutionality of this statute,
Kruse bears the burden of “demonstrating the constitutional violation.”26 In addition to
overcoming “a presumption of constitutionality,” the challenging party must counter
“every conceivable basis which might support [the statute].”27
Kruse argues that AS 22.15.195 is unconstitutional, but in her 37-page brief
she fails to cite what provisions of the Alaska Constitution conflict with the statute.
Kruse cites no Alaska cases, and the cases from other states that she does cite only
establish that a public agency’s election recommendation is improper in the absence of
an explicit legislative directive.28 As the Council has an explicit grant of authority from
the Alaska Legislature to make recommendations, these cases are inapplicable. Kruse
advances no other legal authority demonstrating why AS 22.15.195 might be
unconstitutional; thus she has failed to meet her heavy burden. While reasonable people
may disagree whether it is good public policy to authorize a state agency to make
recommendations to the public on how the public should vote, we defer to the legislature
to make this policy decision because the Alaska Constitution vests broad power in the
26
State, Dep’t of Revenue v. Andrade, 23 P.3d 58, 71 (Alaska 2001) (quoting
Baxley v. State, 958 P.2d 422, 428 (Alaska 1998)).
27
Id. (quoting Katmailand, Inc. v. Lake & Peninsula Borough, 904 P.2d 397,
401 (Alaska 1995)) (internal quotation marks omitted).
28
See, e.g., Stanson v. Mott, 551 P.2d 1, 3 (Cal. 1976) (en banc) (“[A]t least
in the absence of clear and explicit legislative authorization, a public agency may not
expend public funds to promote a partisan position in an election campaign.”); Citizens
to Protect Pub. Funds v. Bd. of Educ. of Parsippany-Troy Hills Twp., 98 A.2d 673, 677
(N.J. 1953) (holding that the power to issue a pamphlet advocating one position was “not
within the implied power [of the board of education] and is not lawful in the absence of
express authority from the Legislature”); Stern v. Kramarsky, 375 N.Y.S.2d 235, 236-37
(N.Y. 1975) (“Neither the language of the statutory authority . . . nor the statutory
scheme . . . contemplates administrative agencies engaging in promotional activities.”).
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legislature with regard to the Council.29 We hold that AS 22.15.195 does not violate the
Alaska Constitution.
C. The Council Did Not Exceed Its Statutory Authority By Advertising
Or Disseminating New Information In The 60 Days Prior To An
Election.
Kruse also argues that the Council engaged in unauthorized activity when
it advertised its recommendations and released new information to the public in the 60
days prior to the retention election. The Council counters that the plain language of the
statute and its legislative history do not support reading in a restriction on either the
means or the time frame in which the Council’s information and recommendations are
transmitted to the voters. The superior court determined that under AS 22.15.195 the
Council could disseminate information in any way it saw fit but it could not release any
new information in the 60 days prior to the election.
We begin by interpreting AS 22.15.195. This requires that we examine the
language of the statute “construed in light of its purpose.”30 We aim to give effect to the
legislature’s intent while taking into consideration “the meaning the statutory language
conveys to others” — the plain meaning of the statute.31 We use a sliding scale on
matters of statutory interpretation: “the plainer the language of the statute, the more
convincing contrary legislative history must be.”32 We give weight to an agency’s
29
See Alaska Const. art. IV, § 9.
30
Beck v. State, Dep’t. of Transp. & Pub. Facilities, 837 P.2d 105, 116-17
(Alaska 1992) (citing Vail v. Coffman Eng’rs, Inc., 778 P.2d 211, 213 (Alaska 1989)).
31
Alyeska Pipeline Serv. Co. v. DeShong, 77 P.3d 1227, 1234 (Alaska 2003)
(quoting Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787 (Alaska 1996))
(internal quotation marks omitted).
32
Marathon Oil Co. v. State, Dep’t of Natural Res., 254 P.3d 1078, 1082
(continued...)
-11- 6938
longstanding and continuous interpretation of a statute.33 A longstanding agency
interpretation may also be viewed as legislative acquiescence to that interpretation.34
1. The Council’s chosen means of disseminating information did
not exceed its statutory authority.
Alaska Statute 22.15.195 mandates that “[t]he information and the
recommendation shall be made public at least 60 days before the election. The judicial
council shall also provide the information and any recommendation to the office of the
lieutenant governor in time for publication in the election pamphlet.” The purpose of
AS 22.15.195 is to “allow the [Council] to inform the public of relevant information”
concerning the judges standing for retention election.
Kruse argues that the Council’s “virile partisan activity” exceeds the
authority granted by AS 22.15.195, directing her arguments towards the Council’s
32
(...continued)
(Alaska 2011) (quoting Alaskans For Efficient Gov’t, Inc. v. Knowles, 91 P.3d 273, 275
(Alaska 2004)) (internal quotation marks omitted).
33
See, e.g., Bartley v. State, Dep’t of Admin., Teacher’s Ret. Bd., 110 P.3d
1254, 1261 (Alaska 2005) (finding the agency interpretation guiding when
longstanding); Storrs v. State Med. Bd., 664 P.2d 547, 552 (Alaska 1983) (holding that
a “statutory construction adopted by those responsible for administering a statute should
not be overruled in the absence of ‘weighty reasons’ ” (quoting Kelly v. Zamarello, 486
P.2d 906, 911 (Alaska 1971))); Nat’l Bank of Alaska v. State, Dep’t of Revenue, 642 P.2d
811, 815-16 (Alaska 1982) (court should give weight under independent judgment
standard to longstanding agency interpretation); 2B N ORMAN J. SINGER , SUTHERLAND
ON S TATUTES AND S TATUTORY C ONSTRUCTION § 49:04, at 77-78 (7th ed. 2012) (courts
should give weight to longstanding statutory construction).
34
See Twenty-Eight (28) Members of Oil, Chem. & Atomic Workers Union,
Local No. 1-1978 v. Emp’t Sec. Div. of Alaska Dep’t of Labor, 659 P.2d 583, 589
(Alaska 1983) (“[T]he legislature’s acquiescence in [the] formerly consistent
interpretation . . . indicates that the legislature intended [the statute] to be interpreted
under the majority rule.”).
-12- 6938
opinion piece, radio segment, and use of a well-known spokesperson. But Kruse fails
to engage in any statutory interpretation or present any legislative history in support of
her arguments. The superior court concluded that AS 22.15.195 requires the Council to
independently advertise the information it gathers and evaluates because the Council is
required to publish the information 60 days before an election, but the election
pamphlet35 circulated to the voters is published only 22 days before an election.
Alaska Statute 22.15.195 neither prescribes nor proscribes how the
“information and recommendation” must be released. But because the “information and
recommendation” must be released before the election pamphlet is distributed, the
legislature must have envisioned it would be disseminated in some way other than in the
election pamphlet. We find persuasive the superior court’s reasoning on this point.
Moreover, in order for the Council to be effective in its public information purpose, the
information from the Council’s evaluations must be disseminated as widely as possible.36
35
The election pamphlet is circulated to each registered voter’s household and
is also available online. It includes information on the candidates and the ballot
measures presented. Official Election Pamphlets, STATE OF A LASKA , D IVISION OF
ELECTIONS , http://www.elections.alaska.gov/pub_oep.php (last visited July 21, 2014).
36
See, e.g., Seth S. Andersen, Judicial Retention Evaluation Programs, 34
LOY . L.A. L. REV . 1375, 1386 (2001) (“Colorado’s experience should serve as a
cautionary tale to other states — sufficient funds for dissemination of results must be a
precondition for establishing a retention evaluation program.”); see also Transparent
Courthouse: A Blueprint for Judicial Performance Evaluation, INSTITUTE FOR THE
A DVANCEMENT OF THE A MERICAN LEGAL SYSTEM , 8, 10 (2006), available at
http://iaals.du.edu/images/wygwam/documents/publications/TCQ_Blueprint_JPE200
6.pdf (“To serve the purpose of educating and informing the electorate, the commission’s
conclusions must be widely disseminated. A commitment to public judicial performance
evaluation involves a concomitant commitment to assuring that the results are
widely known: by the use of websites, press coverage[,] and even
advertisements.”); Guidelines for the Evaluation of Judicial Performance with
Commentary, app. 1, A MERICAN BAR A SSOCIATION , 4 (Feb. 2005), available at
(continued...)
-13- 6938
Because the purpose of AS 22.15.195 is to “allow the [Council] to inform the public of
relevant information,” the Council must be allowed to do so in the most effective way,
within any limits established by the legislature. Here, AS 22.15.195 contains no such
limits.
The fact that Kruse does not agree with the method the Council has chosen
to disseminate the information does not make its choice unconstitutional or violative of
the Council’s authorizing statutes. Under the plain statutory language before us, and in
the absence of any contrary legislative history,37 we cannot say that the Council’s method
of advertisement exceeded the authority granted by the statute.
2. The Council did not exceed its statutory authority by
disseminating new information within 60 days of an election.
The Council argues that the superior court erred by construing
AS 22.15.195 to disallow publication of new information within 60 days of an election.
It contends that no limitations exist in the plain language of the statute, and the
legislature’s primary objective was to “increase the flow of information to ensure that
voters could make informed decisions at the ballot box.” Kruse again argues that the
Council’s “virile partisan activity” is improper, but again she provides no statutory
analysis to support her argument.
36
(...continued)
http://www.americanbar.org/content/dam/aba/publications/judicial_division/aba_blac
kletterguidelines_jpe_wcom.authcheckdam.pdf (“In states where judges must be
reelected or retained by the voters, performance evaluation results should be
disseminated as widely as possible, including by mail, on the Internet, in state and local
newspapers, and/or in public facilities such as libraries and courthouses.”).
37
See infra notes 40-43 and accompanying text.
-14- 6938
Under AS 22.15.195, “[t]he information and the recommendation shall be
made public at least 60 days before the election.”38 The plain meaning of the statute
mandates that the Council release its recommendation and its evaluation of the judge at
least 60 days prior to the election. The statute does not impose further requirements or
restrictions. The statute does not distinguish between old and new information, or
discuss the time frame in which each type must be published; it simply states that the
Council must publish its information and recommendation at least 60 days prior to the
election. Kruse has failed to provide any statutory analysis that would support a
prohibition from disseminating new information in the 60 days preceding an election.
Moreover, the Council’s interpretation is longstanding and continuous. The
Council has frequently requested funds from the legislature to advertise in the 60 days
before an election, and the record shows that the majority of the time this has included
advertising new information. From this we conclude that the legislature itself interprets
AS 22.15.195 as permitting the Council to provide the public with additional information
within the 60 days prior to an election.
Because the plain meaning of the statute does not support a distinction
between old and new information, legislative history must be convincing to reach a
contrary result.39 But the legislative history is extremely scant. In April 1975 Judicial
Council staff testified before the House Judiciary Committee, asking for “specific
statutory authority to evaluate judges’ qualifications and convey this information and
recommendation to the public.”40 House Bill 384 was drafted to give the Council the
38
AS 22.15.195.
39
Marathon Oil Co. v. State, Dep’t of Natural Res., 254 P.3d 1078, 1082
(Alaska 2011).
40
H. Judiciary Comm., Statement for H.B. 384, 9th Leg., 1st Sess., available
(continued...)
-15- 6938
specific authorization it asked for. The Bill was read for the first time on April 7, 1975,41
and, after further legislative consideration without any recorded discussion, was signed
into law eight weeks later, on May 21, 1975.42 In 1980 the legislature amended
AS 22.15.195 to require that the Council’s information and recommendations be made
public 60 days before the election, instead of 30 days before.43
The superior court concluded that the change from 30 to 60 days was meant
to “give judges more time to contemplate resignation [instead of standing for] retention
election or to mount an opposition to the council’s recommendation.” The court’s
conclusion was based on a legislative staffer’s memorandum asking that the Bill be
amended to read “90 days instead of 60.”44 But the staffer’s suggestion was not
adopted,45 indicating that the legislature did not share this view. The staffer’s unadopted
recommendation does not rise to the level of “convincing contrary legislative history.”46
For these reasons it was error for the court to construe AS 22.15.195 to prohibit the
40
(...continued)
at Alaska Leg. Microfiche Collection No. 227; ch. 87, § 3, SLA 1975.
41
1975 House Journal 675, 680.
42
Ch. 87, SLA 1975.
43
Ch. 12, § 13, SLA 1980.
44
Memo from Peggy Berck, Staffer, to Representative Charlie Parr,
Chairman, 11th Leg., 2d Sess., available at Alaska Leg. Microfiche Collection No. 962.
45
AS 22.15.195 (requiring dissemination 60 days prior to election instead of
90).
46
Marathon Oil Co. v. State, Dep’t of Natural Res., 254 P.3d 1078, 1082
(Alaska 2011) (quoting Alaskans For Efficient Gov’t, Inc. v. Knowles, 91 P.3d 273, 275
(Alaska 2004)) (internal quotation marks omitted).
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Council from disseminating new information within 60 days of an election. Therefore,
the court’s injunction must be vacated.
D. The Attorney’s Fee Decision Must Be Remanded.
The superior court did not award attorney’s fees because it concluded: “[I]t
is inappropriate to award attorney’s fees on Plaintiff’s constitutional claim,
and . . . neither the [Council] nor [Kruse] can be considered the ‘prevailing party’ for
purposes of awarding attorney’s fees [under Rule 82].” Kruse argues that this ruling was
error. Because we reverse the superior court’s order on the construction of
AS 22.15.195, we remand the attorney’s fees issue to the superior court for its
reconsideration.
V. CONCLUSION
We AFFIRM the superior court’s decision regarding the constitutionality
of AS 22.15.195 and the Council’s statutory authority to make and disseminate its
recommendation to the electorate. We REVERSE the superior court’s statutory
construction limiting the Council’s dissemination of new information within 60 days of
the election. We VACATE the superior court’s injunction and REMAND for
reconsideration of the attorney’s fees issue.
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