HomeMy WebLinkAbout1986-08-28 Council Packet - Special MeetingKenai City Council
Special Council Meeting
August 28, 1986
Candidates of the October 7, 1986
Election
CITY OF KENAI
Z:0 RDAL00 KENAI, ALASKA Mii
- - - TELEPHONE RS - MS
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NOTICE OF SPECIAL MEETING
There will be a special meeting of the Kenai City Council on
Thursday, August 28, 1986 at 6:00 PM in the Council chambers.
To be discussed:
Candidates for the October 79 1986 election
The public is invited to attend and participate.
Janet Whelan, CMC
City Clerk
DATED: August 25, 1986
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COUNCIL MEETING OF
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CITY OF KENAI
210 FIDAL00 KENAI, ALASKA GNII
TELEPHONE 283. MB
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August 28, 1986
TO: Council
FROM: Janet Whelan wrtL
Clerk
REs Candidates for Oct. 70 1986 Election
BACKGROUND:
For many years prior to this election, I have given out APOC
forms to candidates for City office when their petitions were
submitted to me, with instructions to return the COI form as soon
as possible. At one of the Clerks' seminars that I have
attended, I discussed this with the APOC representative during
the APOC training session. At that time I was told municipal
clerks are responsible for the COI form and the State did not
have the manpower or funds to enforce compliance. I explained
the City's 20 signature requirement and the difficulties involved
in fulfilling the requirements in a timely manner. They said
they would not object if the candidates brought their forms in
the next day, as long as I was on top of the situation. There
was sufficient time between filing period and printing of the
ballots to establish if there was non-conformance. In addition I
discussed this with.the Staff Attorney. The letter to candidates
says it is due "at the time you become a municipal candidate."
This was not interpreted to mean the exact time of filing. When
s APOC forms are distributed to candidates, I have emphasized to
them that if they had any questions they were to contact the APOC
office. This has worked successfully for the seven years I have
been Clerk. The prior City Clerk treated the APOC forms in the
same manner.
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KENAI CITY COUNCIL. — 2 — 8-28-86
ACTION WHILE I WAS GONEt
Before I left for my trip, I instructed the Acting Clerk to
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attach the COI forms to the back of the petitions when received.
She did attach the forma that were to be forwarded to the State,
but brought the COI forms to the Attorney for advice. My return
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date was Aug. 259 this gave the Attorney ample time to hold these
forms and question me before taking any action. I was informed
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by my traveling companion that City Hall had asked me to cell, I
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contacted them two times.
ACTIONS WHEN I RETURNED:
Since my return I have reviewed the materiel submitted by the
Attorney to Council, Administration, Clerk's Office, APOC and
candidates.
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OPINIONS:
I have enclosed a copy of pages from the APOC Policy Statement
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dated Feb. 219 1986 that atatea, "The Commission has not
developed regulations on the definition of time y filing for
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municipal candidate.' It further states, 'The Commission would
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not review or recommend removal from the mun ci a ballot except
in cases in wh ch a formal com laint was filed with our office."
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In reviewing the extensive materialsubmittedby the Attorney
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relating to this subject, I would suggest it relates primarily to
State candidacy rather that City. I also note that all
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candidates did submit their COI forms on the following Monday.
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Since I am not privy to court proceedings and decisions, I have
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based my actions on my training and experience with APOC. While I
agree that the Clarion mis-spelled Ma. Frees' name and listed the
times of phone calls in error, the fact remains I contacted City
Hall on two occasions and was not credited with the action. I
would note that the Attorney's office has spent many hours in
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preparation of this material, including trips to Anchorage. The
Clerk's office does not have the budget, manpower or expertise to
reply in kind. But I would wonder why they seem to have the time
available to give to this subject. I would sum up my opinions by
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noting that for a miniscule technicality that surfaced, the City
has subjected the Clerk's office, the Attorney's office, the
public, and - most important - the candidates to a great amount
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of grief and unnecessary work. We try to encourage candidates to
run for public office and in this case, go out of our way to
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KENAI CITY COUNCIL - 3 - 8-28-86
fj SUGGESTIONSI
1. The use of an emergency ordinance extending the filing
deadline is a legal decision. I would defer to the Attorney.
2. Placing all the names on the ballot in hopes there would not
be legal action. This is a decision of Council.
3. Placing on the ballot only those names of candidates who
have filed COI statements by Aug. 15. This is a decision of
Council.
4. KMC 6.05.100 (b), Section pertaining to elections, states in
part "Failure to publish such a notice of an election shall not
affect the validity of the election or of the vote for any
candidate or any proposal; but, if caused by the City Clerk,
shall constitute failure to perform his official duties." I am
not by nature a martyr, but if this could in some way be used to
validate the election and we can go forward, I would submit it as
a solution.
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Attachments APOC Policy Statement dated Feb. 21, 1986
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MEMORAN_IUM TO: APO#, MEMBER'. c 103
FROM: JANE BARCOTT
DATEt FEBRUARY 21, 1986
AN ANALYSIS OF STANDARDS FOR STATE AND MUNICIPAL CONFLICT OF INTEREST
PILINGS FOR CANDIDATES
1 INTRODUCTION
IN ANTICIPATION OF THE 1986 STATE AND MUNICIPAL ELECTIONS, STAFF HAS
REVIEWED THE EXISTING LAW, REGULATIONS, TWO LEGAL OPINIONS, AND TWO
+ HEARING DECISIONS ON THE SUBJECT OF REMOVAL OF CANDIDATES FROM THE BALLOT
FOR LATE OR INCOMPLETE FILINGS. THIS PAPER IS AN ANALYSIS OF THE
PRINCIPLES DISCUSSED IN THESE DOCUMENTS, APPLYING THEM TO THE
CIRCUMSTANCES OF CANDIDATE FILINGS, AND DEVELOPING A WRITTEN POLICY FOR
THE COMMISSION IN THOSE AREAS NOT CURRENTLY COVERED BY REGULATION.
THE CONFLICT OF INTEREST LAW SPECIFICALLY REQUIRES STATE AND MUNICIPAL
f CANDIDATES FILE A CURRENT CONFLICT OF INTEREST STATEMENT AT THE TIME
CANDIDACY DOCMENTS ARE FILED. AS 39.50.020. THE FIRST PART OF THIS PAPE
DISCUSSES TIMELY FILING BY STATE AND MUNICIPAL CANDIDATES AND PRESENTS
STAFF CONCLUSIONS ON THIS REQUIREMENT.
THE COMMMISSION HAS TAKEN THE POSITION THAT THE REQUIREMENT TO FILE A
l CONFLICT OF INTEREST STATEMENT MEANS THAT THE FORM MUST CONTAIN
j INFORMATION WHICH IS IN SUBSTANTIAL COMPLIANCE WITH THE CONTENTS OF
a STATEMENT. AS 39.50.030: AS 39.50.200(A)(9). THE COMMISSION HAS FURTHER
ACKNOWLEDGED THAT SOME PROVISIONS SHOULD BE MADE FOR THE FACT THAT A
CANDIDATE MAY NOT BE FULLY AWARE OF THE EXTENT OF REQUIRED DISCLOSURE. I !.
i SUCH CASES, AN OPPORTUNITY SHOULD BE GIVEN TO AMEND THE FILING BEFORE THE I
! COMMISSION MAKES A RECOMMENDATION FOR REMOVAL FROM THE BALLOT FOR FAILURE
TO FILE A STATEMENT WHICH IS AN ACCURATE REPRESENTATION OF THE CANOIDATE'
3 OINANCIAL INTERESTS. AS 39.50.030(Al: 2 AAC 50.127; 2 AAC 50.145. THIS
OCOUIREMENT HAS BEEN WELL DEFINED FOR STATE CANDIDATES, ALTHOUGH A
OrMSTION REMAINS ON WHETHER RECOMMENDATIONS FOR REMOVAL REQUIRE AN FORMAL
j HEARINS. SUBSTANTIAL NONCOMPLIANCE FOR STATE CANDIDATES IS DISCUSSED
l FIRST•
THE REQUIREMENT FOR THAT MUNICIPAL CANDIDATES FILE STATEPENTS IN
A SUBSTANTIAL COMPLIANCE IS MORE DIFFICULT TO ADMINISTER. THE STATEMENTS
ARE FILED IN THE CITY CLERK'S OFFICE AND NOT REVIEWED BY COMMISSION STAFM
UNLESS A COMPLAINT IS FILED, PRECLUDING A STAFF —INITIATED AUDIT. THERE I
NOT ENOUGH TIME BETWEEN THE MUNICIPAL FILING DEADLINE AND ELSCTION TO
-- PERMIT COMMISSION ACTION ON A RECOMMENDATION FOR REMOVAL FROM THE
s MUNICIPAL BALLOT FOR SUBSTANTIAL NONCOMPLIANCE. THE LAST SECTION OF THIS
PAPER IS STAF'F'S RECOMMENDATIONS FOR COMMISSION POLICY ON SUBSTANTIAL
NONCOMPLIANCE FOR MUNICIPAL CANDIDATES.
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TO TIMELY FILE A * LICT OF INTEREST STATE40- THE COMMISSION MAY ALSO
IAISH TO ASCERTAIN WHETHER HEARINGS ARE REQUIRED OR DISCRETIONARY IF THE
CANDIDATE HAS EVIDENCE S/HE WAS MISLED ON THE FILING REQUIREMENTS.
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STAFF WOULD CONCLUDE THE FOLLOWING:
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T OF
.THAT THE
REQUIREMENT
THE TIMESTATE
OF OIUATES LARATIONTF
OFILE A CANDIDACYDECMANDATORY �.
INTEREST STATEMENT
AND WELL DEFINED BY STATUTE
.THAT THE DEFINITION OF TIMELY FILED FOR STATE CANDIDATES IS IN THE
REGULATIONS. 2 AAC 50.105(A),(H).
.THAT IT IS AN PERMISSABLE PRACTICE TO ACCEPT STATE CANDIDATE COI
STATEMENTS AFTER THE DATE OF FILING A DECLARATION, IF THE TRANSACTION
OCCURS IN ADVANCE OF THE FILING DEADLINE: AND.
IN THE ABSENCE OF A LEGAL OPINION TO THE CONTRARY, IT IS SUFFICIENT l
FOR THE COMMISSION TO CONVENE A PUBLIC MEETING TO RECOMMEND REMOVAL FyOM
THE BALLOT FOR STATE CANDIDATES WHO HAVE FAILED TO FILE A STATEMENT.
B. APPLICATION TO MUNICIPAL CANDIDATES
THE LAW REQUIRES MUNICIPAL CANDIDATES FILE A CONFLICT OF INTEREST
STATEMENT WHEN FILING CANDIDACY PAPERS AND THE FAILURE TO DO SO REQUIRES
THE REMOVAL OF THEIR NAME FROM THE FILING RECORDS. AS 39.50.020(A). THE
COMMISSION HAS NOT DEVELOPED REGULATIONS ON THE DEFINITION OF TIMELY
FILING FOR MUNICIPAL CANDIDATES, ALTHOUGH THE COURT SAID IN SILIDES THAT
REGULATIONS ARE NOT NECESSARY TO IMPLEMENT MANDATORY FILING PROVISIONS.
ON A RELATED SUBJECT, THE ATTORNEY GENERAL OPINION #366-066-86 AND Tyr
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DECISION MUSTNBEAVE SAID THAT THE TREATED SIMILARILY'•�0 GROUPS OF CANDIUA�
WHILE THE COMMISSION CONFIRMS OR REFUTES FILINGS BY STATE CANDIDATES, IT
HAS NO INDEPENDENT KNOWLEDGE OF MUNICIPAL CANDIDATES FILINGS. STAFF WOULD
RECOMMEND THE COMMISSION SEND GENERAL NOTICE ANNUALLY, PRIOR TO THE
ELECTION. TO CITY CLERKS ON THE LAW'S TIMELY FILING REQUIREMENT FOR
MUNICIPAL CANDIDATES. THE -COMMISSION WOULD NOT REVIEW OR RECOMMEND
WEMOVAL ROM THE NAAXCEPT IN CASES IN WHICH A FORMAL
COMPLAINTWASFILEOWITHOUROFFICE.
CRUM THIS ABBFEVIATED ANALYSIS STAFF WOULU CONCLUDE THATi
.MUNICIPAL CANDIDATES ARE kr.0uIRF0 TO FILE (EIT�'t:'i ►-!ANC! ;ARRIEL' O
POSTMARKED) A CONFLICT OF INTEREST STATEMENT WHEN CANDIDACY UOCIiItENTS � �=
FILED OR BE REMOVED FRUM THE BALLOT. IN MUNICIPALITIES WITH EXTENUEU
FILING PERIODS, CANDIDATES MAY REMAIN ON THE BALLOT IF THE COI IS ON FILE
PRIOR TO THE CLOSE OF THE FILING PERIOO. STAFF 41ILL URAFT A REGULATION
WHICH DEFINES TIMELY FILING FOR MUNICIPAL CANUIUATES REFLECTING 2 AAC
.COMMISSION POLICY. SUBSEQUENT TO A REGULATION. SHOULD BE TO INFORM
CITYCLERKS OF THE LOCAL MI:NICIPALNATTORNEYDATORY IFOR QUESTIONS MELY FILING EON�INTERPRETATION OFREMENT AND RE=ER TTHISHEM Tn
TWEIR
REQUIREMENT;
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CITY OF KENAI
Regular Election of October 4, 1977
For 1111W
ople"Ho I
Three -Year Term
(Vote for not more Than 1)
Shall the Municipal Officers of the City
of Kenai be exempt from the provisions
❑
ELSON. JAMES A.
of State Law {AS 39.50) relating to
conflicts of interest or financial disclas
❑
VINCENT
ure of candidates and holders of Muni-
elpal offices?
cipal
❑
................................
❑ YES
For Boroughl AsAssemblyNO
Three -Year Term
(Vote for not more Than
❑
HILLE, CARL L.
PrOP0811108 11
Shall fho oleo- ad Municipal Officers of
.......... .....................
the City of Kenai be exempt from the
State
Provisions of Law (AS 16.13) M
Wing to election campaign fund dis.
For City Cound
closure or to reporting of contributions
Three -Year Term
and expand;fures in election campaigns?
(Vote for not more than 2)
❑ YES
El
AMBARIAN. EDWARD
F-1
MAYES, NEAL
❑ NO
❑
KONZEK. JOAN
❑
MALSTON, RONALD
❑
...............................
E]
...............................
lInformation for vofen
suppl6d an Go bad)
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'1 f ! CITY OP KRNA1
_ s' : -- • i 7 •�' ELECTION OP OCTOHSR d, 1977
WE. THE MEMAERS OF THE RBNAI CITY COUNCIL. DO HEREBY CERTIFY THE
RESULTS OF A CANVASS OF THE BALLOTS FOR THE ANNUAL ELECTION OF
OCTOHSR 4. 1977 TO HE A8 FOLLOWS:
MAYOR - THREE YEAR TERM _
ELSON . JAMES A. 1 .
O'REILLY. VINCENT `
CITY COUNCIL - TWO THREE YEAR TERMS
AMHARIAN, EDWARD ��I3
i HAYES , NEAL s s 1
KONZEK , JOAN
MALSTON, RONALD d c�
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•.h BOROUGH ASSEMBLY - THREE YEAR TERM
y; HILLB. CARL L.
+1 , YES NO��
PROPOSITION I
� PROPOSITION 11
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SPOILED BALLOTS: ARSENTEB BALLOTS: L _
CHALLENGED BALLOTS:_ TOTAL BALLOTS CASTn
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S A. ELSON, MAYOR EDWA D AMACOUNCHMAN
TO.Y. NCILMAN BE OUNP LWt1MA1i
D ELAN, COUNCILMAN 1 COUNCILMAN
RICH RD MORGAN, COUNCILMAN
ATTBST•
.1 Bus . Peter. City Clerk
DATED: This bth day of October, 1077 at Kenai, Alaska
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CITY OF KENAI
roll Cap" 4 4""
210 RDALAO KENAI, AL.ASKA 996"
—•-- TELEPNONE 283.7M
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MEMORANDUM
TO1 Councilmembers
City of Kenai
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Rogers, City Attorney
y of Kenai
DAT August 27, 1986
RE: Special Meeting Regarding Candidates for
October 7, 1986 Election
In order that you may have as much information available to you
as possible and in order to attempt to minimize dialogue which
may not be germane to the issues or which could be adverse to
the City should the matter be litigated, I have prepared the
packet to which this memorandum is attached.
Hopefully the Council will be able to reach a decision and course
of action without injecting themselves into evidentiary matters
that are best addressed by the courts.
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[imaAMAI, 3
1.
8/25/86 J. Whelan Memo, "Notice of Special Meeting."
2.
8/27/86 T. Rogers memo to Council regarding "8/28/86 Special
Meeting."
3.
Theda Pittman, APOC Ex. Director, "Information for 1986
Candidates in the City of Kenai Election."
4.
APOC Form 15-1, "Registration Statement for a Candidate or a
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Candidate's Campaign Committee."
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5.
Cover and Page 4, "APOC Manual of Instructions," entitled
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"Municipal Candidates."
6.
8/20/86 T. Rogers letter to Janet Whelan, regarding "Late
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Filings of Municipal Candidate Conflict -of -Interest Forms."
7.
8/21/86 T. Rogers memorandum to Raymond Measles, regarding
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"City Election Procedures."
S.
Alaska Statute 39.50.010, "Findings and Purpose."
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9.
Peninsula Clarion article entitled, "August 15th is Filing
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Deadline for October Local Elections."
10.
8/20/86 Peninsula Clarion article entitled, "Glitch May
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Leave Only 1 Candidate for Kenai Mayor."
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11.
8/22/86 Peninsula Clarion article entitled, "City Lawyer:
Drop Mayoral Candidates."
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12.
8/26/86 Peninsula Clarion editorial entitled, "Opinion."
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13.
8/26/86 Peninsula Clarion article entitled, "Special Meeting
Celled for Election Eligibility."
14.
8/26/86 C.L. Freas memo to T. Rogers regarding "August 26,
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1986 Peninsula Clarion Article."
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15.
8/18/86 C.L. Freas memo to T. Rogers regarding
"Conflict -of -Interest Statement, Gerald Lynn Sibley."
16.
8/18/86 C.L. frees memo to T. Rogers regarding
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"Conflict -of -Interest Statement, John Williams."
17.
Wolf an Falke v. State of Alasks, Opinion No. 3038
-- pril 18, 1986.
18.
Silides v. Thomas at al., 559 P.2d 80 (Alaska 1977).
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NOTICE OF SPECIAL MEETING
There will be a special meeting of the Kenai Ci'
Thursday, August 28, 1986 at 6:00 PM in the Coui
To be discussed:
Candidates for the October 79 1986 electio
The public is invited to attend and participate
wjlt�
Janet Whelan, CMC
City Clerk
DATED: August 25, 1986
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CITY OF KENAI
210 RIDALAO KENAI, ALASKA Yob11
TELEPHONE M - TbMO
MEMORANDUM
TO: Councilmembers
ty of Kenai
FROM im Rogers, City Attorney
ity of Kenai
DATE ✓ August 27, 1986
RE: Emergency Ordinance to Allow Filing of Petitions
for Elective Office Past Filing Date
This memorandum has been prepared in anticipation of the
Council's special meeting to address the possibility of extending
filing periods for the upcoming council/mayoral election. A
previous legal department memorandum addressed to Raymond Measles
(attached hereto) determined that there would not be enough time
to amend KMC 6.10.010 by normal ordinance procedures before the
election. The memorandum discusses the alternative of passing an
emergency ordinance, but concludes that such an action is not
consistent with the City Charter and may not be consistent with
State law. This memorandum attempts to address the possible
Scenarios which could occur if an emergency ordinance is passed.
Preliminarily, it should be noted that a possible conflict of
interest may exist as: -to two councilmembers. Raymond Measles and
Chris Munfor bot•.h have filed for office and any action the
Council takes -in extending a filing period would affect these two
councilmembers. KMC 1.85.060 provides that no councilperson
should vote upon a matter in which they have a direct or indirect
pecuniary interest. While the positions of councilperson and
mayor do not involve large salaries, the positions do provide for
remuneration. Accordingly, the conclusion is that a conflict may
exist as a result of the individual's in receiving compensation
and other conflicts could exist under common law.
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It has been held that City Council's have no powers except those,
which are conferred upon them by charter provisions. City of
Scottsdale v. Su erior Court, 439 P.2d 290, 103 Az. 204 1968).
Along these same lines, charter provisions governing the
procedures for adoption of ordinances designed to protect
citizens and taxpayers from hasty and ill-conceived legislation
must be strictly observed. See, 56 Am.Jur. 2d §346.
The procedure in this case which is called for requires that the
Council make a finding of an emergency. While in some instances
great deference is given to a city council's determination of
what an emergency is, and the law is unsettled in this area here
in Alaska, in all probability a case cannot be made out, that the
circumstances in this case justify a public emergency as
contemplated in the Charter. Should the Council pass an
emergency ordinance, several results may follow.
1. The election could be held and may not be challenged.
Nothing more would be said about the matter perhaps. Such action
is, however, setting a bad precedent of circumventing the
Charter.
2. The emergency ordinance itself could be challenged in
court. Courts can set aside city ordinances whenever they are
ultra vires. That is to say, when the council has acted beyond
the scope of its powers. See, Anchorage v. Richardson Vista
Corp., 17 Alaska 23, C.A. (1957). Because the Council may not
have the power to enact an emergency ordinance in this case, the
ordinance could be set aside.
A court, while reviewing the ordinance, may or may not stay the
election. In the meantime, the City would have to prepare
ballots. If later, prior to the election, the court declared the
ordinance invalid, then the ballots would not be correct. If the
Council did pass the emergency ordinance, it might be wise to
prepare two sets of ballots, those with the names of the
candidates as things stand now and another set of ballots with
the names of the candidates who are allowed to be put on the
ballot late, although the propriety of preparing two sets of
bnllots is questionable.
3. An even worse situation might occur if the ordinance was
not challenged until after the election. At that time if the
ordinance which allowed the candidates who were deficient in
their filings to be put on the ballot late was declared void, it
is possible that the whole election could be declared void. This
would obviously entail a good deal of expense to the City.
Generally though, the fundamental inquiry to determine whether
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the election should be set aside because of the irregularity is
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whether the irregularity has prevented a full, fair, and free
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expression of the public will. 25 Am.Jur. 2d §143 at 835; Hunt
156 P.2d 576 (Oregon). the
v. Mann, 101 SO. 369; Howell v. Bain,
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City is on solid ground in leaving the ballots without the names
of the candidates who filed incorrectly. Venturing into the full
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and fair territory described above is not without risk.
4. If the election were held following passage of the
emergency ordinance, the action of the Councilmembers in voting
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for the emergency ordinance might subject them to recall under
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the provisions of AS 29.28.140.
5. An even more unsavory result of the Councilmembers
acting outside the scope of their power could be personal
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liability. While Councilmembers would be entitled to qualfied
immunity under §1983 in a federal action, a municipal official is
afforded no immunity if he knows or reasonably should know that
the actions he takes within the sphere of his official
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responsibility violate another's constitutional rights, or if he
takes an action with a malicious intent to cause a deprivation of
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rights or injury to another. 1 Rhyne, The Law of Local
Government Operations, at 1073; Jennings v. Schuman, 567 F.2d
1213, 3d Cir. 1977; Simms v. Adams, 537 F.2d 829, 4th Cir. 1976.
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It would not appear from the circumstances in this case that a
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§1983 suit against officials would get very for. Nonetheless, a
prediction of whether such a suit would be filed is impossible.
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A state cause of action for personal liability is also
questionable. Officials acting in a legislative capacityy should
be afforded immunity under Alaska Statute 09.65.070(b)(2), even
if an abuse of discretion is involved.
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87 TE 0'F- ALASR �L,
ALASKA PUBLIC OFFICES COMMISSION
Information for 1986 Candidates in the
City of Kenai Election:
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BILL 3FIEFFIELO, GOVERNOR
Rf PLY 1U:
010 C Street, Room 211
Ant horage, AK 99501.3198
t907► 27(r4176
After June 6, 1986:
2221 F. Northern Lights, boom 128
Anchorage, AK 99308
(907) 276.4176
! Juneau Branch Office
Box CO
Juneau, AK 99811.0222
(907) 46S•4864 ,
A3 a municipal candidate, you are subject to Alaska's Conflict of Interest Law
(AS 31.50) and Alas!a's Campaign Disclosure Law (AS 15.13). The following
information will help you with your disclosure requirements.
You need to complete a Conflict of Interest Statement and file it with the
municipal clerk at the time you become a municipalcandidate. AS 39.50.020(a)
directs that those who refuse or fail to file must be taken off the ballot. If
you need assistance completing the form please call Jane Barcott at 276-4176.
of you already have a 1986 Statement on file with the municipal clerk then you
need not file another one.)
The first step in coping with the Campaign Disclosure requirements is to decide
whether you are going to accept contributions and spend money -- including your
personal funds -- on your campaign. If you decide NOT TO SPEND MORE THAN $1,000
on your campaign, including your own funds, then you are eligible to e a Cam-
paign Exemption Reporting Form. A blank copy of this form which is numbered
15-0 and is Buff in color is attached. If you file the Exemption form no
further Campaign Disclosure forms will be required of you utiless you increase
the size of your campaign.
If you decide to accept total contributions over $1,000, including your own
funds, then you need to complete the attached Registration form 15-1 within
seven days of filing with the clerk. In addit on, you will be required to
report the contributions you receive and the expenditures you make on periodic
Campaign Disclosure Statements.
Please return your exemption or registration to the clerk as soon as possible.
A manual and a supply of reporting forms will be provided if you are filing a
registration. ThG: first Campaign Disclosure Statement for city candidates
is due September 8, 1986. Please be sure it is postmarked (or hand delivered)
to the APOC by that date.
Once you have reviewed the instructions, we encourage you to call the APOC staff
at 276-4176 if you have any questions. Good luck in your pursuit of elective
office.
Sincerely,
ALASKA PUBLI OFFICES COMMISSION
THEDA PITTMAN, Executive Director
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Returr. to:
14UNICIPAL CLERK
I APOC FO RM 15> 1
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REGISTRATION STATEMENT FOR A CANDIDATE
OR A CANDIDATE'S CAMPAIGN COMMITTEE
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STATE CANDIDATES DUE DATE: No later than fifteen 116) days after the dateof filing a doclaration of Candidacy or nominating
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petition.
EMUNICIPAL CANDIDATES DUE DATE: No later than seven 17) days after the date of filing a declaration of candidacy o,
nominating petition.
The APOC will direct all communications. "'eluding audit reports, related to vour campaign to the Campaign Mailing Address you
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specify
Name of Candidate:
Campaign Mailing Address:
Home Tole. Number:
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Work:
Candidate's Campaign Committee Name (it any):
li 3:
State Office Filed For
Municipal Office Filed For .
(include district if any):
Iinclude name of municipality):
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Campaign Chairman Iif any): Mailing Address: Home Tole. Number:
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Work:
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Treasurer lot any): Mailing Address: Nome Tee. Number
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Work:
Deputy Treasurerlsl: Mailing Address: Telephone Numberlsl Ij
CERTIFICATION )Use additional sheet if netesuryl ;
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1 hereby certify that the information contained in this registration statement is complete, true. and correct; further, t aeknowiedge r
having received notice of the information concerning campaign treasurers, identification of communications, and plai:ement or
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political signs as printed on the reverse side of this form.
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Date: Signature•.
O Candidate O Treasurer
}:
APOC Form 15-1 (6/81) SEE REVERSE SIDE
USE ONLY:
APOC/CLERK
Packet Provided - YES NO
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IMPORTANT INFORMATION ABOUT CAMPAIGN TREASURERS AND
POLITICAL SIGNS
The Alaska Public Offices Commission and the Department of Transportation and Public Facilities are responsible
for administering Alaska law with regard to the subjects below. Should you have any questions about these requ,
Monte or with additional information, please contact the appropriate office as Indicated. to.
APOC. Anchorage, 276.4178
Section 15.13.060. CAMPAIGN TREASURERS. (a) Each candidate and group shall appoint a compsign treasurer
who is responsible for receiving, holding, and disbursing all contributions and expenditures, and for filing all reports and
statements required by law. A candidate may be a campaign treasurer.
(b) Each group shall file the name and address of its Campaign treasurer with the cammtss,ort at the time it
registers with the commission under 11.050 of this chapter.
(c) Each candidate for state office shall file the Hama and address of the campaign treasurer with the commit.
Sion, or submit. in writing, the name and address of the campaign treasurer to the lieutenant governor for filing with the
commission, no later than 15 days after the date of filing his declaration of candidacy or his nominating petition. Each
candidate for municipal office shall file the name and address of the Campaign treasurer with the cOm,n,ss,on no later
than Seven days after the date of filing his declaration of candidacy or his nominating petition. If the centliaaca tloes
not designate a campaign treasurer, the candidate is the campaign treasurer.
(dl In the case of the death, resignation or removal of a campaign treasurer, the candidate shall appoint a
Successor as soon n practicable and file his name and address with the commission within 48 hours of the appointment.
The candidate is disqualified when he has been found to have been in wilful violation of this subsection.
(a) A campaign treasurer may appoint as many deputy campaign treasurers as he considers necessary. The
candidate shall file the names and addresses of the deputy campaign treasurers with the commission.
If) The candidate is responsible for the performance of his campaign treasurer, and any oefsult or violation by
the treasurer also shall be considered a default Or violation by the candidate ,f he knew or hod reason to know of the
default or violation. 1 g 1 ch 76 SLA 1974; am g s 16.19 Ch 169 SLA 1975; am li 1 ch 133 SLA 19171
Section 15.13.090. IDENTIFICATION OF COMMUNICATION (Effective January 1. 1081). All advnn,semarhts,
billboards, handbills, Paid -for television and radio announcements and other Comntun,cat,onsintended to influence the
election of a candidate or outcome of a ballot proposition or question shall be clearly identified by the words "paid for
by" followed by the name and address of the candidate, group or individual paying for the advertising. ewords
In addition,
candidates and groups must identify the name of their campaign chairman. ( # 1 ch 76 SLA 1974. am a 22 eh 189 SLA
1975; am fi 36 ch 100 SLA 1980)
Department of Transportation & Public Facilities
AS 19.25.0WIS0, AS 19.25.200.280 and 17 AAC 20.010 govern the placement of political signs. Political signs
Placed within 660 feet of the right-of-way of primary or secondary highways are illegal. Political signs placed more than
660 feet outside the right-of-way with the purpose of the message being read from the traveled way of a primary or
secondary highway are illegel.
The Placing0f4SIgn•in violation of the state statutes is a misdemeanor and upon conviclign jSpunis?.ably by a
fine Of not Ion. than $50 nor more than $1.000 (.Rec. 19.26.130). Political signs placed within the right-of-way of
highways are illapel encroachments under AS 19.25.220 and 17 AAC 20.010, and may be summarily removed ourgrant
to AS 11125.240. Outdoor Advertising
Private landowners placing signs, allowing signs to be pined, or allowing signs to remain on property along State
Primary or Secondary highway rights -of -way are in violation of the low and could also have civil liability. Fr►vsta
landowner should find themselves in court and liable for damages caused by a sign on their property which contributed
to a vehicle accident.
Confiscated signs may be recovered from the nearest field maintenance facility after payment for man and
equipment hours expended in the removal. In all cases the minimum charge will not be less than S50. Confiscated signs
not recovered will be destroyed after thirty 1301 days.
If you are in doubt concerning the state right-of-way in a given area, plane contact the appropriate regional
office of the Department of Transportation and Public Facilities for information: Anchorage Regional Office —
243.1111; Fairbanks Regional Office — 452.1911. Juneau Regional Office — 364.2121.
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ALASKA PUBLIC
OFFICES COMMISS11
Manual of Instructions:
. •Statement for
Conflict of Interest Law
AS 39,50
C OFFICES COMMISSION j
ecember, 1995
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The only acceptable places to file a Conflict of Interest Statement for
state candidacy are with either the APOC or Division of Elections. It is
not sufficient to have a Statement' on file at your local clerk's office if
you are a candidate for state office.
Incumbents in state office who have filed an annual Statement at the
Alaska Public Offices Commission for the same reporting period need not file
an additional Statement when candidacy is declared.
Finally, candidates, except incumbents, who file a Declaration of Candi-
dacy in the year prior to an election are not required to submit an annual
candidate's Statement in the following election year.
Municipal Candidates
A candidate for any elective municipal or borough office is required to
f.ilu a Statemrnt , at the appropriate local clerk's office whc.i filing a ncm-
inating position, Declaration of Candidacy, or other required filing.
As with incumbents for State office, incumbent municipal officers who
have an annual Statement on file for the current reporting period need not
file another Statement as a municipal candidate. However, incumbent munici-
pal officers, who have an annual Statement on file with the local clerk, who
become state candidates must submit a Statement to Alaska Public Offices Com-
mission or the Division of Elections (see "state candidates"). You may use
a photocopy of your municipal Statement if the photocopy is signed with an
original signature. (see Section II, page 6).
oddly enough, candidates for certain elective municipal offices must file
Statements upon candidacy but are not required to file annual ones, if elect -
era. Such candidates include service area boards, ambulance boards, fire
boards, and other offices which are filled by means of a public election.
While minimal public benefit may be gained by requiring disclosure only upon
candidacy, the candidate may risk a private party law suit were a Statement
not filed. (AS 39.50.100).
Those Not Required to File
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Only those positions explicitly defined in the Conflict of Interest Law
are subject to it.. t
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Some depairtme.nts have encouraged voluntary filings by key personnel not
covered by the Law. The Alaska Public offices Ccamission will accept such
filings-, auditing them as time permits. Penalties will not be levied for
late reports submitted by those not required by law to file. A person who
has filed voluntary reports and later becomes formally subject to the Law
should be aware of the full reporting requirements.
Candidates and incumbents in federal office file disclosure statements
with offices in the U.S. Senate or House of Representatives. Generally,
copies of those reports are on file with the office of the Lieutenant Gov-
ernor.
Candidates for municipal office in a city which has voted in favor of
exemption need not file disclosure Statements.
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CITY OF KENAI
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"old ed,44w 014
210 FIDALQO KENAI, ALASKA Mli 1
-- TELEPHONE 283.7535
August 20, 1986
Janet Whelan, City Clerk
City of Kenai
210 Fidalgo Avenue
Kenai, Alaska 99611
Re: late Filings of Municipal Candidate
Conflict -of -Interest Forms
Dear Janet:
Inquiry has been made regarding municipal candidates for elected 1
municipal office not having filed a conflict -of -interest f I
statement contemporaneously with other required documents.
A chart depicting elective positions and candidates in the
scheduled October 5, 1986 Kenai Municipal Election has been
prepared and is attached hereto and incorporated herein as
"Exhibit A." This chart shows the status of various required
filings by the various candidates.
Two incumbent municipal officers have filed, along with one 1
Planning & Zoning Commission member. Councilperson Chris Monfor
has filed for re-election as a councilperson. Councilperson Ray
Hassles has filed as a candidate for mayor. Planning & Zoning
Commission Member Ozzj.e Osborne has .also filed for .the Council. i
Measles- and. Monfor previously- filed' conflict -of -interest
statements on or before April,,-15, 1986 incident to their
positions as councilpeople, whereas Osborne filed a
conflict -of -interest statement on or before April 15, 1986
incident to his membership on the Planning & Zoning Commission. - --- - ---- -- --i
These candidates filed conflict -of -interest statements pursuant
to AS 39.50 and 2 AAC 50.130. The filings by Measles, Monfor and
Osborne represent the "...other required filing..." provided for
as an alternative in AS 39.50.020 which states in part,
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"Candidates for elective municipal office shall file such a
statement at the time of filing a nominating petition,
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declaration of candidacy, or other required filing for the
elective municipal office. Refusal or failure to file
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within the time prescribed shall require that the candidates
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filing fees, if any, and filing for office be refused or
that a previously accepted filing fee be returned and the
candidate's name removed from the filing records."
y,
It is intuitive from a cursory glance at the attached chart and a
reading of AS 39.50.020 that there was not a timely filing of
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conflict -of -interest statements by either Gerry Sibley or John
Williams who filed various other documents incident to the
mayor's position nor was there a timely filing of a
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conflict -of -interest statement by Art McComsey, who filed other
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documents relative to the council election. The statutory
language is mandatory, not discretionary, and there is no
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candidacy as to these individuals.
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Research by the Acting Clerk indicates that as to prospective
candidates Sibley, Williams, and McComsey, their
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conflict -of -interest statements either were not returned to the
City offices or were returned after other required filings and
subsequent to the August 15, 1986 filing deadline.
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The Acting City Clerk is attempting to contact the City Clerk who
is out-of-state to attempt to ascertain any other relevant facts
which may have transpired prior to the August 15, 1986, 5:00 p.mo
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filing deadline. Problems were first noted by the Acting Clerk
y� 9 prospective P y on Monde August 18, 1986 when ros active municipal mayoral
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candidate Williams attempted to file a conflict -of -interest
a
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statement with the Acting Clerk.
Failure to meet the deadline for filing financial disclosure
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statements required by AS 39.50.020 has been addressed by the
-courts of Alaska and they have come down on the side of strict
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--enforcement. Citing, Silides v. Thomas et al., 559 P.2d 80
(Alaska:1977);-Fblke v.9tAte of Alaska, Opinion No. 3038 -
April 18, 1986.
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On the trial level, the Court found in Silides that deadlines
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imposed per requirements which must be met by would-be candidates
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before they may qualify to have their names placed on the primary
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ballot are strictly construed and strictly enforced.
The Court in Silides further found that AS 39.50.020 expresses
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the deadline for the filing of financial disclosure statements
which must be "strictly enforced;" and that "there is no
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ambiguity concerning what that deadline Actually is." The
Supreme Court further held that substantial compliance with the
filing deadline is "not sufficient."
Other cases have held the rule for statutory candidate election
deadlines is strict enforcement. McGinnis v. Boerd of
Su erviaors of Elections, 244 Md. 45, 222 A.Zd 3919 393 (Md.
1966); Chamberlain v. 83ard of Supervisors of Elections, 212 Md.
3420 129 A.2d 121 1957 ; State v. Zimmerman, 257 Wis. 443, 43
N.W.2d 681 (1950). The reaeoning behind the strict construction
was enunciated by the Supreme Court of Vermont in Ryshpan v.
Cashman, 132 Vt. 628, 326 A.2d 169, 170 (1974):
"The [public official responsible for administering
elections] is not authorized to alter or amend mandatory
statutes at will, but is bound to follow their requirements,
subject only to whatever authority he may be given within
their provisions to make or whatever extent directing he
may, by law, be bound to obey. To say otherwise would be
to invite individual [officials] to render election law
confused or chaotic, or to ignore it altogether, according
to their personal evaluation of circumstances."
This then is ample reason that AS 39.50.020 vests no discretion.
In fact, while the court envisioned some sort of "substantial
compliance" that would some how meet the mandatory requirements
of the statute in the Silides case, they backed off that in
April, 1986 in the Falke case by embracing strict compliance as
the rule, and as a well -established legal principle to be
strictly enforced and cited Andrews v. Secretary of State, 200
A.2d 650, 651 (Md. App. 1964 :
"[W]here the election statutes fix a date for filing
petitions or certificates of candidacy, such documents must
be filed before the expiration of the time fixed, and [the]
election officials may not exercise any discretion in the
matter."
T.'-+e Alaska Supreme Court's language, in fact, was unequivocal in
stating:
"The election laws mandate, in plain and unequivocal
language, that a candidate physically deliver a declaration
of candidacy 'at or before 5:00 p.m.,' and that a
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conflict-of-intereat statement be 'simultaneously filed.'
y AS 15.25.040(a)(1) and AS 15.25.030(b). This statutory
° scheme does not in any way suggest that a declaration or a
conflict-of-intereat statement completed after the deadline
should be deemed timely." j
;j The Court left no loopholes or alternative basis.
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,t Furthermore, the Alaska Public Offices Commission (APOC)
" publications and other literature was specific in giving
municipal candidates notice of the requirements concerning
conflict -of -interest statements. The manual of instructions
given to candidates from the APOC office at page four states
's that:
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"A candidate for any elected municipal or borough offices
is required to file a statement, at the appropriate local
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clerk's office when filing a nominating petition,
declaration of candidacy, or other required filing."
A letter from APOC over Executive Director Theds Pittman's
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signature and directed to the candidates in the City of Kenai
election states in the second paragraphs
"You need to complete a Conflict of Interest Statement and
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file it with the municipal clerk at the time you become a
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municipal candidate. AS 39.50.020(a) directs that those who
refuse or fail to file must be taken off the ballot. If you
need assistance in completing the form, please call Jane
Barcot at 276-4176. (If you already have a 1986 Statement
on file with the municipal clerk then you need not file
another one.)"
Generally, State election laws apply to municipalities with over
1,000 persons unless the municipality exempts itself from such
regulations, see AS 15.13.010. To date, the City of Kenai has
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not taken any action to exempt itself.
Under AS 29.23.010, city councils ere to provide the general
rules for elections w.-ithi-n municipalities. It should be noted
thet•this statute specifically apply to home -rule cities. In
addition to AS 29.28.010, the legislature has made it very clear
that the nomination procedure is also to be set out by city
council ordinance, see AS 29.28.015.
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In order to comply with the State statutes, the City enacted
KMC 6.05.250 which provides that the rules and regulations made
by the State Director of Elections also applied to City elections
"insofar as they are applicable." This some language is repeated
in the City Charter at Section 10-11. The obvious intent of the
"insofar as" language is to require compliance with State
statutes until such time as individual provisions are superceded
by City code.
In order to provide for an orderly election, the City needs to
comply with AS 29.28.015. To do so, the City enacted
KMC 6.10.010. This provision suggests that any qualified person
may be placed on the ballot by filing with the Clerk a sworn
statement of candidacy between August let and 15th each year. The
additional requirement of the contemporaneous filing of
conflict -of -interest forms is found within the State statutes.
Municipal election dates are imposed by statute. AS 29.28.020
provides that the regular election date for municipalities is the
first Tuesday in October of each year. This State provision is
reflected in the City Charter at Section 10-1 where the same time
lines are provided. Specific references to State elections can
be found in AS 15.15.020.
In conclusion, you should return filing fees, if any, to
attempted candidates Sibley, Williams and McComsey and remove
their names from the filing records.
Sincerely,
C 0 K
r-im Rogers
City Attorney
TR/clf
Attachment
cc: hayor
Councilmembers
City Manager
Theda Pittman, Executive Director, APOC
Ozzie Osborne, Planning & Zoning Commission Member
John Williams
Art McComsey
Gerald Sibley
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CITY OF KENAI
1 Z10 RDAL00 KENAL ALASKA M11
- -- TELEPHONE 283. 7535
MEMORANDUM
TO: Raymond Measles, Councilmember
FR Oty of Kenai
m Rogers, City Attorney
City of Kenai
DATE: August 21, 1986
RE: City Election Procedures
You have asked me to research the relevant State Statutes,
Administrative Codes sections and the Kenai Municipal Code to
determine whether the City could re -open the filing period for
candidates for the position of mayor. You have expressed
dissatisfaction with the current state of affairs in which the
candidates who failed to file conflict -of -interest forms
contemporaneously with their nomination petitions have been
stricken from the ballot. Your specific concern stems from a
perceived apparent unfairness of such actions.
The first question to be answered is who controls the setting of
the filing dates. Under AS 29.28.010, city councils are to
provide the general. -rules for elections within municipalities.
s, •This statute specifically applies to home -rule cities. In
addition tb this statute, -the legislature has made it vary clear
that the nomination procedure is also to be set out by the cicy
.ordinance, see AS 29.28.015.
Kenai Municipal Code 6.10.010 prescribes the procedure for
nominating petitions. This Code section provides basically that
any qualified person may have their name placed on the ballot for
mayor or councilmember by filing with the City Clerk between
August 1 and August 15 a sworn statement of candidacy. You have
asked whether this Code section can be amended to allow for a
one-time 24-hour opening of the filing period to allow filing by
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potential candidates who did not have a chance to file or those
candidates who failed to observe a technicality and have been
prohibited from filing.
Section 2-12 of the City Charter provides that ordinances, except
for emergency ordinances and ordinances related to appropriations
shall go into effect one month after passage and publication
unless a later time is specified. Assuming that the Council
could meet on Friday, August 22, 1986 for the initial reading of
the proposed changes to the ordinance, when one takes into
account KMC 1.15.070, it becomes evident that the proposed
amendment could not work using this procedure. After the
ordinance is introduced and orally read, a vote is taken. 'If
there is passage on the first reading, the ordinance must be
published by posting a copy on the Council bulletin board,
together with a notice of the time and place when and where the
ordinance will be given a public hearing and considered for final
passage. This first publication must be at least five days prior
to the time advertised for a public hearing. So even if the
Council were to peas the ordinance initially on Friday, August
22, 1986, they could not consider it for a second reading and
hearing until August 27, 1986. Final passage could take place on
August 27, conceivably.
The election is currently scheduled for October 7. Given the
necessity of making up ballots and other procedural requirements,
it is obvious that following the normal amendment procedure to
ordinances, that it would be impossible to provide for a one-time
24-hour filing and be able to get these people's names on the
ballot.
The next question then is whether the 24-hour one-time opening
could be accomplished through an emergency ordinance. Under the
City Charter Section 2-13, emergency ordinances are defined. The
Charter describes an emergency ordinance as one which has the
judgment of the Council is necessary for the immediate
preservation of the public peace, health or safety and which
�.should.bacome effective prior'to the time when 3n ordtnary
,. ordinanc& would become effective. A simple reading of this
Charter section indicates that emergency ordinances could not
relate to election issues. The plain language indicates health
or safety problems such as disease or perhaps disaster problems.
The question of public peace could be used perhaps to invoke an
emergency ordinance in this case, if perhaps, and I do not mean
this to sound facetious, civil unrest was threatened because the
Council refused to put certain names on the ballot. This is
ludicrous and it simply does not fit the obvious intent of the
Charter section.
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The affixing of an emergency clause to a statute or ordinance
does not, of itself, make it an emergency measure within the R
meaning of the law, State Exrel Taylor v. North Kansas City,
360 Mo. 374, 228 S.W.2d 762. See also, 56 Am.Jur.2d §3549
Municipal Corporations.
Some courts have held that the declaration of an ordinance that
it is emergency measure is not conclusive upon the court but it
is for a court to determine whether the ordinance is in fact, an
emergency measure. See, 56 Am.Jur.2d, Municipal Corporations at
354. Another jurisdiction's declaration of the emergency is
considered to be prima facie evidence of an emergency. Los
Angeles Dredging Company v. Long Beach, 210 Cal. 348, 29TP.
Potter v. Compton, 15 Cal.App.2d, 232, 59 P.2d 537.
Following this line of thinking, at least one Colorado court held
that a city council's resolution that an emergency exists is
binding on the courts unless it is apparent from the ordinance
itself that an emergency does not and could not exist. Western
Heights Land Corp. v. Fort Collins, 146 Col. 464, 362 P.
Under this letter analysis, it is questionable whether the
Council could pass an emergency ordinance relating to elections.
Because the matter would not relate to the public safety, health j
and welfare, a court would probably construe the ordinance to
suggest that it would be apparent from the ordinance itself that
an emergency does not and cannot exist in an election proceeding.
At this time, I cannot find any Alaska authority which tends to
show which way the court's tilt in this jurisdiction.
There appear to be three (3) categories into which courts
generally place decisions regarding emergency ordinances. At the
one extreme is the position that whatever the Council says is an
emergency, is an emergency. At the other end of the spectrum is
the position that the declaration of an emergency must be
supporte•d•b-y facts which conclusively establish nn emergency. In
the. -middle is evidenced by the Colorado t:ourt, is the position
that the court will accept the declaration of emergency unless it
is apparent from the face of the ordinance that no -emergency in
fact, exists.
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As suggested, we do not know which position the Alaska Supreme !
Courts may take. It would appear though that under two out of
three of the positions, this particular emergency would probably
fail as an "emergency." It is apparent from the face of the
ordinance that no threat to the public safety, health or welfare
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could arise from a dispute over election procedures.
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Accordingly, under the Colorado analysis, the ordinance would
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fail. At the some time, under the view that an actual emergency
need exist, it is pretty difficult to find such an emergency in a
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dispute over an election procedural point. If we were certain
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that the Alaska courts would accept the extreme view that
emergencies are whatever the Council declares them to be, then I
would be more inclined to suggest that an emergency declaration
is possible in this case. However, the odds appear to be stacked
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against such a declaration._
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Council could, of course, do anything it wants and proceed with
an emergency ordinance. No one might say anything. In my
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opinion, however, this sets a dangerous precedent. On the one
hand it is special legislation designed to aid a few individuals.
This has, and continues to be my position. The City should not
be in the position of enacting apecial legislation. Finally,
while you seem to feel that a common-sense notion of fairness
cries out to rectify what is in your view is an apparent
unfairness, I cannot agree with this position. As an attorney, I
first look to the laws that have been enacted. The State
Statutes are very specific in pointing out that the
conflict -of -interest statement forms need be filed
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contemporaneously with the declaration of candidacy. While
hardship may result to individuals in one particular instance, in
the interest of upholding the system in general, I feel that it
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is important not to make special amends for an aboration. The
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Council could, at this time, amend the ordinance so that the
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Council could take a more flexible approach to extending filing
deadlines in the future.
Before the Council considers enacting such an ordinance, I would
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like to point out the case of Falke v. State, Sup.Ct.Op. 303,
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(April 18, 1986). In that case where a conflict -of -interest
statement was not contemporaneously filed with the declaration of
candidacy, the lower court extended the filing deadline to allow
a candidate to meet t-he-requirements of filing the
conflict -of -interest statement simultaneously with his
declaration. In -ruling that the Court erred in such actions, the
Supreme Court noted that the language of the statute requiring
the simultaneous filing is unambiguous. The Court suggested
that, "the legal principle is well established, both in Alaska
and in other jurisdictions, that election law filing deadlines
are to be strictly enforced." At 3038.
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The bottom line is then that municipalities should not be acting
on election law filing deadlines on an ad hoc basis. A single
rule enforced as to all best serves the public trust.
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6 39.50.010 ALASKA STATUTES # 39.50.010
Section Section
lion. or deputy department heads 130, Report of financial interests of gover-
so. Failure to report by a commission or nor and lieutenant governor
board chairman or member 135. Civil penalty: Late filing of required
90. Prohibited acts reports
Ioo. Enforcement by private citizens 145. Participation by municipalities
110. Report of financial interests of Judi- 150. Initial filing date for public officials
cial officers 200, Definitions
120, Report of financial interests of
legislators
1. Editor's notes. — Section 2. 1974 Section 3, 1974 initiative Proposal No.
Initiative Proposal No. 2. provides: 2, provides: "Repeal of Inconsistent
} '•Severability. if any provision of this Law. in case of mnflict between provisions
chapter or portion of a provision is of this chapter and other provisions con-
} declared by a court of competent jurisdic- tained in the Alaska Statutes, the provi-
_ tion to be invalid, for any causr, such sions of this chapter shall take
invalid provision or portion of it shall be precedence."
4 considered to be nonexistent and the
_ { remainder of this chapter shall continue in
fall force and effect."
5
a
Sec. 39.50.010. Findings and purpose. (a) It is declared by the
people of the State of Alaska that the purposes of this chapter are:
(1) to discourage public officials from acting upon a private or busi-
ness interest in the performance of a public duty;
(2) to assure that public officials in their official acts are free of the
influence of undisclosed private or business interests; public
(3) to develop public confidence in persons seeking or holding p
office, enhance the dignity of the offices and make them attractive to
citizens who are motivated to public service; and public
(4) to develop accountability in government by permitting p
access to information necessary to judge the credentials and per-
formance of those who seek and hold public office.
(b) The people of the State of Alaska declare that:
(1) public office is a public trust that should be free from the danger
of conflict of interest;
(2) the public has a right to know of the financial and business
interests of persons who seek or hold public office;
(3) .e compelling st .te interest requirAs that candidates for gffice and
o(%ee holders discloaa their ptisonal and business financial inte) eats;
(4) roasonable disclosure mclvirementsdo not violate an individual's
right to privacy when the itidividuaf seeks or holds public office and a
compelling state interest in the disclosure exists; and
(5) reasonable disclosure requirements do not have the effect of
chilling the exercise of the right of a qualified person to seek or hold
public office. (1974 Initiative Proposal No. 2, § 1)
130
I
# 39.50.1
Purpose
Interest la
have been
mate goals
Comm'n. S1
3220), 570
The purp
statute is t•
actual and
Pub. Officr
1512 (File i
Financial
purpose ofP
ernment an
fairness of t
and in appt
0f&es Cm
(File No. &
To deter
closure pr
Interest It,
extent of t
strength of .
closure m
Alaska Put
No. 1512 1
11977).
tiovenna
in
-Theme exuu
Sec. 3,.
judicial o
sion or b( ,
as head o
in the ex•
nor, and
sources a
within 3(
state ele(
declarati
nominati
other me
statemer
candidac;',
Refusal (
the candi
a previot
removed
public of
i
si
..
2
i
.
$ 39.50.010 ,, . A ,..
4 •.39.60.020 PUBLIC OtrF• ETU
;' 139.60.020' •'" "=
NOTES TO DECISIONS
ntereaes of gover•' � , ,
..
lil ng of°rraquired
ing
Purposes of ' Aiosiia'e. Conflict of
interest in promoting fair and honest gbbu P-
law as set forth in this section
ernment would be impeded by not strletlf"61 "
ei
tofficials
have been generally regarded no legiti-
complying with the Conflict of Interest law ' "' '
nipublic
'mate goals. Falcon v. Alaska Pub. Offices
does not outweigh the individual's privacy
Comm'n, Sup. Ct. Op. No. 1512 (File No.
interest in protecting sensitive personal '
32201, 570 P.2d 469 (1977).
information from public disclosure. Fakart
The purpose of the Conflict of Interest
v Alaska Pub. Offices Comm'n, Sup. Ct.
statute is to bring to light all conflicts —
Op. No.1812 (File No. 3220), 870 P.Zd!469
actual and potential. Falcon v. Alaska
(1977).,..-
Pub. Offices Comm'n, Sup. Ct. Op. No.
Certain types of information com-
1612 (File No. 3220), 670 P.2d 469 (1977).
municated in the context of the physi•
ive Proposal No. .1
Financial disclosure laws have the
purpose of promoting efficient, ethical gov-
clan -patient relationship fail within a
constitutionally -protected' zone of
if Inconsistent //
emment and preserving the integrity and
privacy. Falcon v. Alaska Pub. Offlees
•tween provisions
r provisions can.
fairness of the political process both in fact
Comm'n, Sup. Ct. Op. No. 1512 (File No,
3220), 670 P.2d 469 (1977).
uutes, the provi-
and in a
appearance. Falcon Y. Alaska Pub.
Offices Comm'n, Sup. Ct. Op. No. 1512
Reporting names of physician's
er shall take
(File No. 3220), 670 P.2d 469 (1977).
patients. —Until appropriate regulatioas.�u..t.
'
To determine the validity of the dle-
are promulgated, the Conflict of Interesq ,
closure provisions of the Conflict of
law may not be applied so as to rogiutgr - .• .•, ,
reporting the names of individual pat(
Interest law, both the nature and the
.
of a physician. Falcon v. Alaska )Pub. `
extent of the privacy invasion and the
Oflfces Comm'n, Sup. Ct. Op. No. 161Z
strength of the state interest requiringdis-
(File No. 3220), 670 P.2d 469 (1977):..
i
_ closure must be considered. Falcon v.
,�"-Ir :I L;
Cited in State, Pub. 011ices Comm'n v.
:fared by the '1°.n �'; �•
Alaska Pub. Offices Comm'n, Sup. Ct. Op.
No. 1612 (File No, 3220), 870 P.2d 469
i
Marshall, Sup. Ct. Op. No. 2406 (File No.
hapter are:
(1977). .._
8614), 633 P.2d 227 (1981).
Collateral references.— 63 Am. Jur.
ivate or busi-
Governmental interest balanced
2d, Public Officers and Employees, if 281,
against individual's privacy interest.
312 to 318, 348, 391.
:re free of the
—The extent to which the governmental
- • . •• ::
67 C,J.S., Officers, 4 204.
- .. . ,;
I
a
.i
t
�s
olding public
Sec. 39.50A20. Report of financial and business interests. (a) A• -
attractive. to
.. .. .... ,..
judicial officer, commissioner, chairman or member of a state commis.'' !
'or
46 bbard specified in AS 39.60.200(b), a person hired or appointed ) ?
:itting public'
a's'head or deputy head of, or director of a division within, a department
ate and r-
Pe
in the executive branch, a persona appointed as assistant to the ver
' rile
.
lfor; and a muniiiipal officer' shall a statement giving income !
'sources and business interests, under oath and on t'c . '".
penalty of perjury,
art the danger
_
within 30 days after taking office as a public official. Candidates for - I
® state elective office shall file such a statement at the time of filing a
:!td businasa
I
J declaration of candidacy or within 30 days of the filing of ahy 111
cmiru' ing petition -, or within 30 days of bemming a cnadir:; to l". ;�•,
for office and
other r-:euns. Candidates for elective municipal ofli:.e 4hull !ilia mc.: a
ial interests;
sto-'anent at the time of riling a nominating petition, declaration of i
i.
t individual's
candidacy, or other required filing for the elective municipal ofilce. !
office and a
Refusal or failure to file within the time prescribed shall require that
the candidate's filing fees, if any, and filing for office be refused or that
the effect of
a previously accepted filing fee be returned and the candidate's name
seek or hold
removed from the filing records. A statement shall also be filed by • • •
public officials no later than April 16 or 16 days after the person files
4
131
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§ 39.50.020 At.ASKA STATUTES § 39.50.020
a federal incomp tax return in each following year, whichever comes
first. Persons who, on or after Deceniber'll, 1974, were members of
boards or commissions not named in AS 39.50.200(bI are npt xequitje¢ • „ ,
to file financial statements.
(b) The governor, lieutenant governor, membexs of the "slature, ,
and candidates for these offices; �tidtbial officers, each commissioner,
head or deputy head of, or direp of.0 division within,'p department
in the executive breach, assistant to the governor dr chairman or mem-
ber of a commission or board required to report under this chapter, -
shall file the statement with the Alaska Public Offices Commission.
Municipal officers. and candidates for elective municipal office, shall
file with the municipal clerk or other municipal official designated to
receive their filing for office. All statements required to be filed under
this chapter are public records. 419. i Initiative Proposal N . 2, 4 1; am.. ,
H 1, 2 ch 25 SLA 1975) r ::
NOTES TO DECISIONS "'' ' I `: 4
The proper location for the filing oil "$Olg; Jat2d:202ff:%59 P.2d 80•(1977).-
the financial disclosure statement is . Subdinidal'ecOVIlafte-with filing , ,• t•,i m-i a
unclear. Silides v. Thomas. Sup. Ct. Op. ' �eequirements is sufficient. _ Given the
No. 1362 (File Nos. 3019. 3020, 3021). 559 . I!fk of clarity inherent in this section and-
P.2d 80 (1977). ,c • ;tb0 impossibility of compliance with this
Subsection ib) of this section requires: ", ion for a would-be candidate living in n i s u -
financial disclosure statements to be filed Juneau who files his declaration of •
in the office of the Alaska Public Offices candidacy near the June deadline, sub.
Commission in Anchorage, but the admin- stantial compliance with the filing ., i i • ra •carer:-n
istrative practice of the lieutenant gover-'• 'requirements of this secuon will suffice.
nor's office has been customarily to accept Silides v. Thomas. Sup. Ct. Op. No. 1362
financial disclosure statements from (File Nos. 3019. 3020. 3021), 559 P.2d 80
candidates and then forward the (1977).
statements to the Alaska Public Offices At a Juneau resident mailed his
Commission. Silides v. Thomas. Sup. Ct.- �. financial • disclosure: statement to the
Op. No. 1362 (File Nos. 3019. 3020. 3021),r • Alaska Public. Offices Commission in
59 P.2d 80 (1977). • . •. Anchorage on June 1, 1976, then his
Subsection (a) contemplates filing nine was to appeat' -qn the forthcoming
concurrent with filing of declaration of primary ballot. Silidee'v. Thomas. Sup. Ct.
candidacy. — Subsection is) of this sec- : Op..No-1362 Wile.N,go. 3019, 3020, 30211, t
on contemplates that the act of filing a 559 P.2d 80 1977).
financial disclosure statement by a cindt- Effect of uriequtil '�hforcement of
date is to be carried out concurrently with --'this section oft filing requirements of -
the act of filing the declaration-. of.. AS 15.13.060(c):—1)nequal enforcement ,
candidacy. Silides v. Thomas. Sup. CL Op. of this section did not require the conclu-
No.1362 (File Nos. 3019. 3020, 3021), 559 sion that a candidate had in fact substan-
P 2d 80 it 977). tially • complied with the filing
But tnich filing is imposgihle•for requuemmntsofAS15.13.o60(ciwhere the
Juneau r•esident.--Itis'•uatentlyimpos• record did not show ony intentional or
sibW' for a Juneau resident to have filed purposeful discrimination against the
his financial disclos-1- statement at the candidate. Silidea v. Thomas, Sup. Ct. Op.
same time he filed his declaration of No. 1362 (File Nos. 3019, 3020. 3021). 559
candidacy, since the latter may be filed in P.2d 80 (1977).
Juneau (AS 15.25.0401cil while the only Cited in State, Pub. Offices Comm'n v.
authorized place of filing the former is Marshall. Sup. Ct. Op. No. 2406 (File No.
Anchorage (this section). Silides v. 5614). 633 P.2d 227 119811.
Thomas, Sup. Ct. Op. No. 1362 (File Nos. r
132
4 39.5(
Collate
eonstructi
lie officer.
Sec.
receipt ,
legislate
24.60, S '
the repc
Sec.
be an a
official (
• member
extent t
asset or
need no.
(b) Er
chapter
:.. (1) th
year, int
person, t
of the pi
(2) th
person, t
of the pt
officer, c
calendar'
(3) th
during t
or depen ,
with the
(4) th
tag an o• .
year by
nondepe!
(5) th
person,t.
of the pt
during t?
she profit
extent O
(6) an
spouse o
is living
loan gut
t
_4
lr
U
L1
}
P
••'^t�R••'�3;�'uNlx�i;•�'if6tll..��+Y�'+'..y.'�-'s�.F''"'•NPSI�;vk�•rr.± r-.
:.. Atjg".-�:t� 'i piling. deadilne
` for October loca elections
. i•.' •, g..,�•l Y+, f3�'�i�. �•+�!•7. b'�'Kirri.. ,,y i, r �`y�J�,. :, •. 7
• ...:� •Mrace is �.•,JaT•'rjY4rS.T�.r.. ,7:>� .':..... .`w>�i:AL:
Wbile'tb! covet mar's steallmg the held by S wU Means .uu ow by Sharon
election emth m"i at the mom d, there lltwcL Mock was elected last year to SW&
;' will be sd�e beat generated this fOR IocaUy. outthe last yearof a three year term.
'�. as„ea and asaar►bly teats and: one The gMugy Assembly seats up this f d
aayor'itestareuptoripa s � v?'at»' . am District 2. Seat C. held by Dave Careyof
Soldotaa• District 2, Seat D. beld Paul
t!;:'.>;;::. .ire;!:•+ t.. rek4. �....•,...•.... . ;
_ The mayor's race vdll lie in the City of Dale of Soldotm; District 8, Seat A. hheld by
Kenai, where current Mayor Tom Wagomer's Karen McGaban of Niktski; District S. Seat ,
y teem b over: He Is stepping down to rim for D. held by Phil Nash of Kenai; District t. t
the State Hama of Representatives• Alec Seat B. held by Jonathan Sewall of Seward; t
open- in the city of Kenai are two council and District 4, Seat D. bold by Marie WaW 4 1
stab occupied ' by Chris Monfor and Jess Homer: t I
far-cefididates is 1
.r ' Tbeie are two seats open .in Soldotaa. o0' 'itgti ryilh theldectl jet for 7. . �" �
:.:,•ti.iy`: ��_:• 1:��7".�?•i `7t j� 7i v� i�A'.•t l"•'•`•,ir:r� h•r •.'"',I7 i,:.' r .. ,, �:7.,..
} SAN r� Val ► �y t . r.. i t' t. .�:r'tir,� .;,:: rr '�.• rr: 'is Arm rt ! r ,.,f.�"s e,
.r.. 01.+r�.iiS:►tii:�?.:,-+ir }�w.L►i1�} �isivw�Aii Ai:{.� +dtA"__
L
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WEDNESDit August 20- 198e Vol. 16. Issue 229 The Pen1Rsul& C18flOn/ U-S-P'S' 43810 Kemd' Alaska ""If
Glitch May
only 1. candidate.
for Kenai mayor, '
errourcaawrorto
� .1.,Z,
im awyces rm to TM ew 82
'..Candidates may be dropped
fad at come Wer In me am patter wweb 7fieeeottb*
F
Lomw for emmdl
Ow mw*tw deft at the Woe patluu they AUftn*wOMcU= hen
hteamaa Pdamoll""
Akftsftlecoft - :"PAft* Wftft*tOMSwjftP4ieayaaderte• , Silk
ftftew— dMFeqWMMatftetzd','-
Ow, and fift for *MW% be ntow or imt a I - Ulm Ra MOMW as me dab
PWWAO OMMOld to be rdurvA so Me cow co"te (w own Sw CUS
dWAM.SUM ___,Odff—tbe F',*....... ,
Modg. IMIM IBMWM&dOz&
Aawrding to Us& IPIN=1044 anow" di edw for the COOM - as - a0ifto for So.
APOC, a ketWo deddon by the aommMws attorney. maWs& Modw WL L#t
a" wwwww Is that wbedw ft cw"ft j* a Q@
kaDotbbatwemthemdldstaaadWe city. t3atrweoa was
Repeated &M Cab to N".8 ew Aftra". Tim
Minthe matter were
It OUM&NO ANIM Offft b" WMWM uMbe
MM& ft entm " "Wou 0 ea wn tow ft MW
tram teepinj the ama US ft MM or the C* from
M .bm chafed " of our
Oodyem el jht loom 1w4ffftUft"ftM9w.1'dhave
-hu boa amble W m& her to W out what MWw&
tanrtiooaft moo,
MY MBA8111 0" UP tbeb pttltlaaa 0 no ft-M.A!-�
Mtb"!.-
Ift ft"Uta &to% that v&M age M&% ft ft.
CM* mom am" aw Wket. me to am too
But V&=wnUGM—tw
the city VADUY, whdAO Md &be&# leftan Vaal^ Md
no we kww *US to do wfth it OW OW AUMM 11M
... L ft
:0.
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•
vaQ. A4 Auqu„ ae, two veMnuN ci.�a!
Rogers apparently has no problem with letting
1 • ..,-.
the matter go to court. U the council agrees with
r
him, that seems the likely next step. it is not the
1
O�
p
intent here to advise the council that it should
s
overrule Rogers; this commentary is intended on-
!!
• - • •
ly to urge probity and open-minded deliberation in
j:
o one should feel good about the cir-
that have, at least tem-
search of the fairest possible dechdon.
Councilman Ray Measles, a certified candidate
Ncumstances
porarily, ruled out three candidates in
the Kenai City Council and mayoral
for mayor, last week pressured Rogers to do
everything he possibly could to avow in particular
f
elections. The incumbent council, when it meets to
discuss the matter Wednesday, should yield as far
the mayoral candidacies of Williams and Sibley.
Measles has no desire to become mayor by
as the law allows in determining whether it can
deiault. Rogers ruled that the problem is a matter
of law, not a trifle to be brushed aside for conve-
repair the situation.
U the council decides it cannot repair it, then all
nience. He allowed that if there were a chases for
r
concerned should seek immediate action in court
correction, it could be sought in a friendly court
• ,,
to assure the smooth running of the Oct. 7 election.
Given the position taken by
case.
Kenai requires conflict filings because city
�.
the city attorney, the council
Arguing may have no choice. The city
voters deci to require it, but the court pre -
decided
sumably could make a finding that proper pro•
followed and that Williams, Sibley
.
attorney is a lawyer hired di-
til@ redly by the City Council to
cedure was not
or McComsey were blameless and should be
allowed to run.-
3
serve as its legal counsel, and
;.. call the current attorne , Tim
Given that background, it may not be reason -
i
Rogers, has given the council
: ► ; .. a written opinion that it now
able to disagree with the city attorney's ruling,
mm as much as many people would like to do so.
y
..��; ?..
would be udawiW to allow
the candidacies of John Williams, Gerald Sibley or
As Rogue has pointed out, overriding the law
could invite other legal challenges.
.F
Art McComsey to be filed, since none of the three
in a fashion not unlike the tradition of baseball,
Rogers' role might be viewed as that of the um -
met an Aug. 18 deadline for filing candidate con-
ph�e's on the ball field. If a home run hitter fails to
;j
flict-of-intereststaterdents.
It appears that the question would not have
touch one of the bases, the umpire does nothing
unless the other side appeals the play. The umpire
arisen but for the coincidence of the city clerk's
vacation during the week after the Ming deadline
then rules. Whehw's manner of handling the eon -
filings was fine, even U the candidates failed
when she had customarily taken care of the eon-
when
Met -of -interest forms. Janet Whelan, -the city
to touch one base, until the umpire was asked for a
• clerk, returned from- vacation Monday and ex-
the council ll or the court can othe outcome is �venvlether te um�pira�q
plained that since the forms were only with
1 r
the city, and not the Alaska Public Ofices Com-
mission, she had habitually filed the conflict
Quotable
forms in her office -after the deadline for other
candidate papers. Accordingly, she had indicated
_
o TwoUftVwas aptmt= 16eumpWaN dheen d".
to some candidates that they could turn in the
t,ao.roc^K.^acecnysarmnt�er
_ _...
formslastweek.
When Williams came in to file his on Aug. 18,
Whelan was not there and the question wound up
in Rogers' lap. His memos to the council indicate,
in effect, that Whelan's past practice was extra-
legal and that the council should not backtrack to
allow the late filings, even if done with APOC's
blessing.
.
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a Y3
a
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Pass A•2 '�AuOuq 4a. INii tssnlnsuts Gluten
.Special, miseting called
;for=. election
• el ii bi I it
s A special meeting to discuss the eligibility '
began researching the law.
of the Kenai municipal candidates who Ned
In a memo handed out to the City Council
late cost) 14-interest statements will be
last Wednesday night, Rogers stated that the
held by the Kenai City Council at 6 p.m.
candidates were ineligible to run because the
Thursday. • • - , .�e� • -
Alaska Statute governing the conflict state•
The. candidates involved Include John
ments says they must be filed by Aug. is. He
Williams and Gerald Sibley for mayor and
also stated that, "The acting city clerk is at.
ArtMcoomseyforcouncu.
tempting to contact the City Clerk who Is out
City Clerk Janet Whelan, who was vacs.
of state to attempt to ascertain any other
tioft when the candidates attempted to the
relevant facts which may have transpired
their statements last week, returned from
Prior to the Aug. 15, IBM, 5 p.m. filing
vacation Monday and confirmed much of
deadline."
what the three candidates claimed — that
Whelan said she had called City Hall on
she gave them their Alaska Public Offices
Tuesday and talked to Rogers secretary.
Commission packets of information when
Carol Feease, who was also the acting city
they returned their petitions to file for office '
clerk, about the matter, then called again on
and told them to got their comet statements
Wednesday and spoke to Bill Brighton, the
back toher"tissoon aspossible." . ".
She said that would have been Monday,
city manager. Both calls were made before
thecotmcilmeeling. , • -
She eaid eho did not say they had seven days.
, .
Freese referred The Clarion without
The candidates have stated Whelan told
comment Monday to Rogers when she was
them to get their statements back "as soon
called to inquire why the memo would have
as possible," and also indicated they thought
said they were trying to reach Whelan when,
fbeyhadsevendays.
in fact, she had already talked with her.
She said in all of her meetings with of
Rogers then came on the be and said, "I
ficiala from APOC that they have consistent•
have no comment and neither does my see•
ly told her that was the procedure since the
retary."
statements were Bled with the city clerk in.
• Brighton said Friday that he did not talk
stead. of the APO C office. She said she was
over the problem with Whelan on the phone
unaware of any deadline according to the
.last week, but merely took hor call and told
law, and said this was the way -she had
her ad to spoil her. vacatiim because the
bandiedall previoWelection filings.
mattcrcould wait until her return. He said he
did -not discuss the problem with her at that
The .question of eligibility arose when
time. •' '
Williams attempted to turn in his conflict.
Williams, who has threatened to file an in•
d-Interest statement last Monday, the next
junction to prevent the city from holding the
working day beyond the filing deadline. With
election without the would-be candidates,
Whelan absent, no one knew what to do with
said he will hold off any legal action until
the statement, so City Attorney Tim Rogers
after the special meeting. .. .. -.
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CITY OF KENAI
" % 441
210 FIDALQO KENAI, ALASKA 00611
TBLEPNONE283-MIS
EMORANDUM
ttorney
Igal S f1fr
y
:ninsula Clarion Article
)ve-referenced newspaper article. I
as," not "Freese."
this office, collect, on August 20,
2:06 p.m -- not August 19, 1986. A
informing you of the call is included
ned in the memo, Janet said she would
ely 4:00 p.m. in the afternoon, which
Bill Brighton. The arrival of the
ill evidence the acceptance of the
the cells; from where the calls
he calls were made.
7
7
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urunoesinuu
TO: im Rogers, City Attorney
City of Kenai
FROM: Carol L. Fress, Legal Secr y
City of Kenai
DATE: August 18, 1986
RE: Conflict of Interest Statement
Gerald Lynn Sibley
At approximately 1:45 p.m. on memo date, Mr. Gerald Lynn Sibley
came into the City office and asked for Janet Whelan, City Clerk.
Ms. Whelan, as you know, is on holiday for the week and I am
Acting Clerk in her absence.
Mr. Sibley has apparently filed as a candidate for the upcoming
mayorial election and had with him two Alaska Public Offices
Commission forms and wanted to hand them in as part of the forms
required to run for office. I have attached them and a copy of
the APOC Manual of Instructions with this memorandum.
Mr. Sibley first asked how long the term of office was. I
checked with Charlie Brown (he was available at the time) to
reinforce my thoughts and told Mr. Sibley that the term was for
three years, 1986 to 1989. Mr. Sibley then asked if the 111986
Municipal Candidate Campaign Reporting Exemption Form" was to be
handed -in at this office. He stated that the information packet
that he received from Janet Whelan said that it should be
returned to her but he pointed out that at the top of the sheet
it was indicated that it should be returned to the APOC office.
I telephoned Joanne Brindley, Kenai Peninsula Borough Clerk and
asked her where it should be turned in. Ms. Brindley stated that
even though it was indicated to return it to the APOC, Janet's
letter of instruction may have said for it to be turned into the
City office so that she would be'certain that it had been turned
in.
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Another form
1986 State o
Financial In
that was handed to me by Mr. Sibley was the "APOC
r Municipal Conflict of Interest Statement of
terests Held During the Preceding Year." In speaking
with Ms. Gri
for filing n
ndley I stated that I•Efiought that this form was due
o later than Friday, August 15, 1986. Me. Grindley
read in the APOC Manual of Instructions (page 4, Municipal
Candidates, first paragraph) and stated to me that it specifies
that the conflict -of -interest form should be (fled along with thi
Declaration
She advised
of Candidacy form and thought that it was past due.
me to date -stamp the form and turn it over to you.
candidacy a
office and
had Sandy W
listen as I
Mr. Sibley was still in the office when I informed you of my
question of whether Mr. Sibley's form was still acceptable. You
instructed me to date -stamp the form in front of Mr. Sibley and
witness, explain to Mr. Sibley that there may be a problem in
that the form was to have been filed with the declaration of
nd that the city attorney would speak with the APOC
make a determination. I date -stamped the forme and
right, Public Works Secretary watch me and had her
explained to Mr. Sibley of what I had been instructs
to do. Mr. Sibley seemed to understand whet I explained and sai
thank you end left the office.
Approximate
end handed
ly ten minutes later Mr. Sibley returned to the office
me a "Registration Statement for a Candidate or a
Candidate's
told him th
Campaign Committee" form, completed and signed. I
at I would attach it with the other forma and give
them to you
Mr. Sibley
Friday and
told him to
did state that he decided to file for candidacy on
when picking up the forms, etc. from Janet Whelan she
get them back to her as soot as possible.
Attachments
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MEMORANDUM
TO:
'A Rogers, City Attorney
*1
if
ity of Kenai
I
FROM: Carol L. Frees, Legal Seer
. .
A
City of Kenai
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DATE: August 18, 1986
RE: Conflict of Interest Statement
John Williams
At approximately 4:00 p.m. an memo date, Mr. John Williams come
into the City offices and requested to speak with Janet Whelan,
City Clerk. Mr. Williams was informed that Janet was out of town
for the week and that I was acting City Clerk in her absence.
Mr. Williams then came to my desk with the following forms for
filing which I have attached to this memo.
4-
1. Alaska Public offices Commission 1986 State or Municipal
Conflict of Interest Statement of Financial Interests Held During
the Preceding Year.
2. Registration Statement for a Candidate or a Candidate's
Campaign Committee.
3. 1986 Municipal Candidate Campaign Reporting Exemption
Form.
'me the forms
W h a r, Mr Williams gave .1 stated that there may be a
'c prcbler, in the--t I-oncterstood that the fortitis were to be handed in
with his declaration if candidacy. I also stated that there had
been,questinns from another candidate and that I would dat.v-stamp
the forms, write a memorandum to you with the forms attached and
give them to you and that you would talk to the APOC and make a
determination. I pointed out to Mr. Williams the information on
page 4 of the Conflict-of-Intereat Instruction Manual regarding
when the form is due.
A, 1
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Mr. Williams asked me to include in the memo to you that he
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returned his application for candidacy at approximately 2t00 p.m.
on Friday, August 15, 1986 and that the City Clerk did not supply
' him with the conflict-of-intereet forms, etc. until he declared
his candidacy and that she said that they were due within seven
i (7) days after filing.
!
4
At about that time you came out of your office and Mr. Williams
- stated to you that he had some questions about the due date for
the forms and also stated that the "acting clerk has disqualified
him." I stated that I did not disqualify him, only that we had
t
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had some questions and that you would be checking with the APOC.
_
You suggested Mr. Williams that he put his questions in writing
so that they would not be misunderstood.
{
Mr. Williams asked for the telephone number to APOC which you
:
- directed to give to him (276-4176). Mr. Williams asked if he
1
could use the City telephone and you stated that you preferred
that he did not as it could be construed as favortism to other
'
candidates.
Along with the conflict of interest forma, Mr. Williams was
1
reading from the "Information for 1986 Candidates in the City of
Kenai Election" letter which was included in the packet of
information disseminated by the City Clerk. I have attached a
copy to this memo for your convenience.
f Mr. Williams stated when you went into Bill's office that by
the tone of your voice you had other problems with these filings.
I told Mr. Williams that it was not necessarily problems but
questions and that was why you wanted to check with the APOC.
`
Mr. Williams said that he would put into writing his questions
E
Y and submit them to you. I checked with Mr. Williams the
information that he wanted me to include in my memo regarding
when he declared his candidacy, date, time, etc. and that Janet
}
said the conflict forms were not due for seven days. I read this
i
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information from my notes and he confirmed that I had the correct
information. Mr. Williams then left the office.
_
elf
Attachments
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NdfICE: This opinion is subject CO f� pia ro ebefore
t
publication in eho Pacific �• formal errors to the
ka or Appellate tea, 303 K Street,
attention of the C of the
�
pie
Anchorage,
Alaska 9++t llt in der that corrections may be
•
THE SUPREME COURT OF THE STATE OF ALASKA
1 woLFGANG FALKE, individually 1
and on behalf of all others ;
similarly situated, File No. 5-605
Appellants,
V. O p I N 1 O N
STATE OF ALASKA, the
Lieutenant Governor and the ;
Election Supervisor in (No. 3038 - April 18, 19861
Fairbanks in particular,
Appellees.
• Appeal from theF�u= Superior CourtOf the District,
of Alaska.
Fairbanks,
James R. Blair, Judge.
Appearances: Wolfgang Falke, Fairbanks, pro
se. Jonathan B. Rubini, Assistant Attorney
Juneau, and Harold M.
Attorney General, Juneau, for AppelleesBrown.
Befores Rabinowitz, Matthews, Compton and Mooiref, Justices. Burke,
MOORE, Justice.
We are asked in this appeal to consider the statutory
for publicoffice
requirements a candidate must meet to file policy properly
Alaska and whether a Division of Elections
implements those requirements. The trial court ruled that the
• ks legislative candidate who had "substantially
name of a Fairban
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complied" with the statutory filing deadline should be placed on
the 1984 primary ballot. Because we conclude that strict
compliance is required, we reverse.
I.
The pertinent facts are not in dispute. in 1984 the
filing deadline for declaring candidacy for the state legislature
was June 18 at 12:00 noon. under AS 15.25.040, the filing
deadline usually is 5100 p-m. on June 1 of an election year.
However, the 1984 deadline was extended by court order, due to
litigation over reapportionment.
At approximately 11:56 a.m. on June 18, paul Frith
entered the state Division of Elections office in Fairbanks and
requested the forms necessary to file for a state senate seat.
Election Supervisor Anne Speilberg handed Frith the required
declaration -of -candidacy and conflict -of -interest forms. Frith
filled out his declaration before the noon deadline. He then set
it aside and began to fill out the conflict -of -interest form.
At noon, Speilberg closed the elections office door.
Between 12:05 and 12:10 P.M. Frith completed his
conflict -of -interest statement. He then handed both documents to
Speilberg, who notarized the declaration of candidacy- Rather
than use the office's automatic time -stamp clock to mark the time
of filing, Speilberg used a manual stamp to affix 'RECEIVED June
10 1984" on both docuaaent�.. pel.ow the datF, she hackdwrote and
initialled the time as 111:56 AM." She testified that "it was,
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In fact, after twelve noon and I used the manual stamp and
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initialled the time when i gave him the application to avoid any
questions about a late filing."
Elections Division officials follow a procedure of
allowing candidates to complete all the necessary documents
'I
before they are collected and notarized, rather than distracting
candidates by collecting each form upon its completion.
According to Division of Elections Director Sandra Stout# the
division also has an "established policy," apparently unwritten,
that:
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(A(ll candidates who are in the Election
i
Office and have announced their intention to
file before the deadline, are considered as
having filed timely even though the
completion of forms and preliminary
verification may not be completed until after
the deadline.
On June 25, 1984, Wolfgang Falks filed a complaint for
1
injunctive relief and a declaratory judgment against the State of
ll
Alaska, the lieutenant governor and the Fairbanks election
supervisor. Falke, who was a candidate for the same senate seat
as Frith, sought to have Frith's name removed from the primary
election ballot on the basis that Frith's declaration of
�
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candidacy was not timely filed.
eaporLor Court Judge James R. Blair denied
requast for an ir.junction and granted summary judgment in favor
of the state. the court found that Frith's - declaration of
f'
candidacy "was completed and passed across the counter prior to
the deadline." The court further concluded that Frith's
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conflict -of -interest statement was filed in 'substantial
compliance" with statutory requirements, and that ouch compliance
was sufficient. The court relied on our recognition of the
substantial compliance doctrine in Silides v. Thomas, 559 P.2d 60
(Alaska 19771. The court ordered Falke to pay $100 in attorney's
fees, rejecting his claim to be a public interest litigant.
II.
Falke brings this appeal to challenge 1) the trial
court's grant of summary judgment and determination that Prith's
filing was timely, and 2) the award of attorney's fees. Falke
seeks prospective relief only, including an order directing
election officials to strictly implement the statutory filing
requirements and to abandon their policy of accepting documents
completed after the filing deadline. Before we consider the
merits of this appeal, we must determine whether it should be
dismissed as moot.
The mootness doctrine
The dispute which prompted this lawsuit is technically
moot. The 1964 election is over, neither Frith nor Folks was
elected,l and the question whether Prith's name should have been
1. Falke was defeated in the republican primaryt
Frith loot in the general election -after running unopposed in the
democratic primary.
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on the ballot no longer presents a live controversy. As a general
rule, we "refrain from deciding questions 'where the facts have
rendered the legal issues moot." Hayes v. Charney, 693 P.2d
• 831, 834 (Alaska 1985) (quoting Doe v. State, 487 P.2d 47, 53
(Alaska 1971)). However, we have recognized on numerous
occasions that certain technically moot questions merit review
under the "public interest" exception to the mootness doctrina.2
We recently articulated the criteria to be considered
in determining whether to review a moot questions
The public interest exception involves
the consideration of three main factors: 1)
whether the disputed issues are capable of
repetition, 2) whether the mootness doctrine,
if applied, may repeatedly circumvent review
of the issues and, 3) whether the issues
presented are so important to the public
interest as to justify overriding the
mootness doctrine.
• Haves v. Charney, 693 P.2d at 834 (citations omitted).
We conclude that the immediate question, although
technically moot, falls within the public interest exception.
First, the issue is capable of repetition so long as election
officials adhere to their policy of accepting forms after the
filing deadline. Second, although we often consider election
cases on an expedited basis, e.g., Silides, 559 P.2d 80, it is
possible for this question to repeatedly evade review by
application of the mootness doctrine. Third, the question raised
2. See, e.v., Xentopp v. Anchorage, 6S2 P.:c: 4S3,
457-58 (Alaska 1982) —a-nT cases cited ti:rein at 457 n.3.
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here is one of considerable public importance. In view of the
approaching elections, we think it incumbent to determine whether
the statutory requirements for filing for public office are being
enforced properly.
The statutory framework
There are two main chapters in the statutes -- AS 15.25
and AS 39.50 -- that dictate what a would-be candidate for the
state legislature must do to gain access to the primary election
ballot.
AS 15.25.0303 requires a candidate to execute under
oath and file a declaration of candidacy that includes numerous
3. AS 15.25.030 provides%
Declaration of candidacy. (a) A member of a
political party who seeks to become a candidate of
the party in the primary election shall execute
and file a declaration of candidacy. The
declaration shall be executed under oath before an
officer authorized to take acknowledgments and
shall state in substances
(1) the Full name of the candidates
(2) the full mailing address of the candidates
(3) if the candidacy is for the office of state
senator or state representative, the election or
senate district of which the candidate is a
residents
(4) the office for which the candidate seeks
nominations
0) the name of -the -political party of which he
..is a candidate for nominations
isident address of the candidate=
of the primary election at which
Blares himself to be a candidates
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specified items of information. Subsection Ibl� which was eddad
in 1980, provideas "A person filing a declaration of candidacy
t
under this section shall simultaneously file a statement of
i
• income sources and business interests which complies with the
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requirements of AS 39.50.0 AS 15.25.030(b) (emphasis added).
s:
This latter statement is known as a conflict -of -interest
i
statement.
- —
AS 15.25.040 seta out the procedure a candidate must
follow to file the required declaration of candidacy. A
E
(Footnote continued)
iIS)
that the candidate will meet the specific
residency requirements of the office for which he
is a candidates
19) that the candidate will meet the specific
citizenship requirements of the office for which
•
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he is a candidate#
(10) that the candidate is a qualified voter as
required by law#
(11) that the candidate will meet the specific
age requirements of the office for which he is a
candidates
(12) that the candidate requests that his name
be placed on the primary election ballot#
d
(13) that the required fee accompanies the
declaration=
(14) that he is not a candidate for any other
office to be voted on at the primary or general
election and that he has not filed another
declaration of candidacy or nominating petition
for the office for which this declaration is
filed#
'
(15) th- manner in which he. wishes his name to
? _
appear on the tallots and
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4161,Oct the ctndtdatc is registered to vote as
•:
a member of the political party. whose n•smination
.. .v
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he seeks.
(b) A person filing a declaration of candidacy
• under this section shall simultaneously file a
statement of income sources and business interests
which complies with the requirements of AS 39.50.
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candidate has two options: to physically dolivor, in person or
by mail, the declaration, or to deliver a telegram containing
certain information specified in the statute, followed by the
delivery by registered mail of the declaration not more then
fifteen days later. AS 15.25.040(a).4 Here, Frith chose to file
in person. For a candidate who opts to file in person or by
mail, AS 15.25.040(a)(1) mandates that the candidate file his
declaration by "the actual physical delivery of the declaration
in person or by mail at or before 5:00 p.m., prevailing time,
June 1 . . . .• For 1964, the filing deadline was extended by
court order to June 10 at noon. AS 15.25.040(c)5 requires that
4. AS 15.25.040(a) provides:
Manner and date of filing declaration.
(a) The declaration is filed by either
(1) the actual physical delivery of
the declaration in person or by mail at
or before 5:00 p.m., prevailing time,
June 1 of the year in which a general
election is held for the office, or
(2) the actual physical delivery by
telegram of a copy in substance of the
statements made in paragraphs (11 - (5)
of the declaration as required by AS
15.2S.030 at or before 5:00 p.m.,
prevailing time, June i of the year in
which a general election is held for the
office and also the actual physical
delivery of the declaration containing
paragraphs (1) - (16) as required by AS
15.25.030 by registered mail which is
received not more than 15 days after
that tia,e.
I i 5. AS 15.25.040(c) provideet
(Footnote Continued) ,
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the declaration of candidacy be filed either with the director of
elections or an election supervisor.
Looking only at AS 15.2a, it is clear that Frith was
• required to execute under oath and file with election officials a
declaration of candidacy by 12:00 noon on June 18, and to file a
conflict -of -interest statement simultaneously.
The unambiguous language in the above statute cannot be
read in the abstract, however, because AS 15.25.0301b)6 requires
the simultaneous filing of a conflict -of -interest statement
"which com lips with the requirements of AS 39.50." (Emphasis
added.) This latter statute requires that a candidate file a
conflict -of -interest statement "at the time of filing a
declaration of candidacy," and that the conflict -of -interest
statement be filed "with the Alaska Public Offices Commission"
• (hereafter APOC). AS 39.50.020.7
(Footnote Continued)
(c) A candidate for a statewide office
candidateor a
shall file either o with dthe r i director orde office
election supervisor. If the candidate files
his declaration with an election supervisor,
forelection
supervisor
shall
cto=iately
wardthedeclaration to thedire
6. ge_e supra note 3.
7, AS 39.50.020 provides in relevant part:
Report of financial and business
interests. (a) A judicial officer,
ccmmi,z;ierker, chairman or member of a
state commission • shall fire a
statement giving income sources and
(Footnote continued)
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Is the substantial com lianco doctrine applicable?
The trial court, after considering the requirements in
AS 15.25 and AS 39.50, found that Frith'e declaration of •
candidacy "was completed and passed across the counter prior to
the (statutory) deadline" and therefore "wee appropriately
filed."8 The court then concluded that Frith's filing of a
conflict -of -interest statement ten minutes after the statutory
deadline was "timely" because the substantial compliance doctrine of
Silides v. Thomae, SS9 P.2d 80 (Alaska 1977). was applicable.
(Footnote Continued)
business interests, under oath and on
penalty of perjury, within 30 days after
taking office as a public official.
Candidates for state elective office
•
shall file such a statement at the time
of filing a declaration of candidacy or
within 30 days of the filing of any
nominating petition, or within 30 days
of becoming a candidate by any other
means. Refusal or failure to file
within the time prescribed shall require
that the candidate's filing fees, if
any, and filing for office be refused or
that a previously accepted filing fee be
returned and the candidate's name
removed from the filing records. . . .
(b) The governor, lieutenant
governor, members of the legislature,
and candidates for these offices . .
shall file the statement with the Alaska
Public offices Commission.
8. The , trial court erred in finding that
the ~'t.
declaration was "passed across tha counter prior to
indicated that Frith filled out
the
his
deac::f.ne.'' The tet,timony
declaration before noon, set it aside, filled out
documents
his
to
conflict -of -interest statement, and then han.ted both
officials after the noon deadline.
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we disagree. Although the cases are similar, we
conclude that Frith's case is distinguishable from Silidee on the
• facts, and that the trial court erred in applying the substantial
compliance doctrine.
The legal principle is well established, both in Alaska
I
nd in other jurisdictions, that election law filing deadlines
are to be strictly enforced. Id. at 81, see also Andrews v.
Secretary of State, 200 A.2d 650, 651 (Md. 1964). Strict
compliance is the rule, and substantial compliance the rare
exception. In Silides, we recognized that the requirements in AS
15.25 and AS 39.50 were ambiguous regarding the proper manner of
filing a conflict -of -interest statement. 559 P.2d at 86. We
concluded that substantial compliance in the filing of candidate
• Silides' statement was sufficient due to
the lack of clarity inherent in AS
39.50.020 and the impossibility of
compliance with AS 39.50.020 (requiring
the statement to be filed with the APOC
at the time the declaration of candidacy
was filed with the lieutenant governor
or an election supervisor] for a
would-be candidate living [away from
APOC offices] who files his declaration
of candidacy near the June deadline.
E
Id.
However, Silides is distinguishable. Silides involved
a legislative candidate who filed his declaration of candidacy
with election officials in Juneau on the morning of the June 1
filing du.741ine. UnultanRously, he had election officials
notarize lain; already completed conflict-rf-interest statement.
Ld. at 85. Unlike Vrith, however, Silides did not file his
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conflict -of -interest statement with election officials. He
instead mailed it to the APOC in Anchorage, in apparent reliance,
on the requirement in AS 39.50.0204b). The statement was not
received until after the statutory filing deadline. Id. After
• ;
recognizing the statutory ambiguity, we held that a candidate who
filed a timely declaration and who mailed a conflict -of -interest
form to the APOC postmarked at any time on the day of the filing
.i
deadline would be deemed to have met the statutory requirements.
Id. at 62, 66.
A key distinction exists between Silides and this case.
Silides involved a candidate who claimed his delay in filing was
the result of the statutory ambiguity. Here, Frith filed both
his declaration and his conflict -of -interest statement with
election officials. He cannot argue, as Silides could, that he
had completed hie conflict -of -interest form prior to the
•
deadline. He also cannot argue, as Silides did, that his delay
resulted because he was confused and mailed the form to the APOC
in Anchorage in reliance on an ambiguous statutory scheme. The
sole cause of Frith's delay was his arrival at the elections
i
office four minutes before the filing deadline.
Given these circumstances, it was error to apply the
Silides substantial compliance doctrine. There was no reason to
1
excuse Frith from strictly complying with the language in AS
15.25.040(a) requiring the "actual physical delivery of the
declaration . . . at or before" the 12:00 noon deadline, ar.d the
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requirement in AS 15.25.030(b) that he "simultaneously file" a
conflict -of -interest statement.
• In summary, we conclude that because the statutory
ambiguity did not play a role in Prith's case, the substantial
compliance doctrine should not have been applied to excuse hie
late filing of a conflict -of -interest statement. We turn now to
the state's argument that there is an alternative basis for
affirming the trial court ruling that Prith's filing was
"timely."
Is the Elections Division filing policy statutorily
aut or ze t
The state contends that Prith's filing was proper
because he complied with an Elections Division policy that
• permits certain candidates to file forms after the deadline.
Under this unwritten policy, election office doors are closed as
of the statutory filing deadline. Candidates who already are
inside and are in the process of completing their forms are
permitted to finish and are deemed to have "timely filed" when
they turn in forms after the deadline.
The state contends this procedure is a "reasonable and
practical administrative response" to a poorly crafted statutory
scheme, and that it properly implements statutory filing
c.
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requirements.9 The state offers two basic arguments for
upholding the policy.
First, the policy is claimed to be a practical way to
thwart the potential for chaos -to develop at the filing deadline,
since some candidates inevitably wait until the last moment to
file. The policy avoids penalizing a candidate for unpredictable
risks such as crowds or harried officials trying to deal with a
flurry of filings. The state relies on Bayne v. Glisson, 300 So.
2d 79 (Fla. App. 1974), to bolster this argument.
In Bayne, a candidate's representative arrived at the
secretary of state's office seven minutes before the statutory
filing deadline. Id. at 80. Some 100 people crowded the office,
there were no signs directing candidates, and mass confusion
prevailed. Id. When the candidate's representative finally
arrived at the proper location to file his papers he was told it
was too late. The court, in ruling for the candidate, held thatt
"(P]resence in the office . . . by a candidate, or his
representative, armed with the necessary qualification papers and
fees, making a diligent bona fide effort to present the same to
the appropriate official meets the requirement of the Statute."
Id. at 83 (emphasis added).
9. The state notes that where election officials
are faced with applying ambiguous statutes, we have given
considerable deference to the division's expertise in the
conduct of elections. See Meiners V. Bering Strait School
District, 687 P.2d 287, 296-98 (Alaska 1984) (addressing
(Footnote Continued)
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A key distinction exists between Bayne and this case.
Bayne involved a person who was inside the office ready to file
completed papers. The court's holding emphasized that fact. In
•
contrast, the policy at issue here permits candidates to complete
I
their forms after the deadline.
This is obviously a fine distinction. However, as we
reviously noted, the weight of case law authority holds that
statutory filing deadlines are to be strictly enforced.
(W)here the election statutes fix a date
for filing petitions or certificates of .
candidacy, such documents must be filed
before the expiration of the time faxed,
and Ithel election officials may not
exercise any discretion in the matter.
Andrews v. Secretary of State, 200 A.2d 650, 651 Md. App. 1964)
(citation omitted)i lee also Silides, 559 P.2d at 87.
•
The cases generally excuse late filings only where a
candidate does everything possible to comply with a filing
deadline, but is thwarted due to action by officials. In Painter
d"
v. Shaner, 667 S.W. 2d 123 (Tex. 1984) , the doors to the filing
office were locked two hours before the filing deadline. The
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court held that a candidate who had arrived prior to the deadline
"armed with all essential documents" should be deemed to have
timely filed. Id. at 125. The court emphasized that "In]o
(Footnote Continued)
A � statutory requirements for recall of municipal officers). ?
However, as discussed above,- the statutory filing deadline
?I' .. tnvolved tiara 13 not ambiqucus.
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delay, miscalculation or dereliction on his part frustrated hie
filing" on time. Id.
In contrast, where a delay in filing is due solely to a
candidate's actions, the cases hold that the filing is not to be
•
accepted. Claveau v. Stark, 244 A.2d 922 (N.H. 1968), presents a
factual situation similar to the instant case. There, a guber-
natorial candidate tendered his filing fee and began filling out
his declaration of candidacy before the 5SOO p.m. statutory dead-
line. He was "within a minute or less of completing the act when
the filings were closed." Id. at 823. In denying the candidate
relief, the court held that the filing of a declaration of
candidacy was "an essential act required by the statute" and that
the filing must be "fully completed" before the statutory dead-
line. Id.; see also Vandross v. Ellisor, 341 F. Supp. 197, 207
(D.S.C. 1972) (denying relief to candidate who arrived at elec-
•
tion office five minutes after the filing deadline).
The principle that statutory filing deadlines must be
strictly enforced also was emphasized in two of the cases
consolidated in our Silides opinion. We ordered the names of
candidates Kelley and Schaeffer stricken from the ballot because
they failed to comply with the filing deadline in AS
15.13.060(c). 559 P.2d at 97. That statute requires a candidate
to file the name and address of his or her campaign treasurer
with the APOC within seven days of filing a declaration of
candidacy. Schaeffer's designation of treasurer was -filed a week
late. .Kelley never filed a written designation, but argued that
-16-
A
in
3038
7
I
•
•
he had met the requirement because his treasurer called the APOC
prior to the deadline and gave his name and address.
After concluding that the statutory requirements were
clear and that the statute vested no discretion in election
officials, we held that the statute should be strictly enforced.
Id. we expressly stated that our holding was "grounded on the
legal principle that statutory candidate election deadlines are
normally strictly enforced." Id.
In view of this well -established principle, we conclude
that the Elections Division policy of permitting candidates to
fill out forms after the statutory filing deadline does not
properly implement the statute. In reaching this conclusion we
note that the language in AS 15.25.0401a1(1) specifying the
filing deadline is clear, and that the statute does not vest
discretion in election officials.
Nevertheless, the state suggests a second reason for
upholding the division's policy. This argument relies on an
analogy to AS 15.15.320, which provides: "Every qualified voter
present and in line at the time prescribed for closing the polls
may vote.' The state contends that this explicit statutory
approval of a procedure comparable to that employed by election
officials reflects legislative concern that practical problems
not interfere with one's right to vote.
This analogy is flawed. Voters waiting in line are
ready and have done everything necessary to qualify to vote. In
covers not only can•.tidates who
contrast., the, division's policy
7
3038
J
10
,f
1.
The judgment is REVERSED.
•
• (Footnote Continued)
However, wis
of discretion to
attorney's tlfees tewhere a that tlosingn party e award
"in god faith raised a
question of genuine public interest before the courts." Gilbert
V. State, 526 P.2d 3131, 1136 (Alaska 1974). we find that Falke
satisfies the criteria that determine whether a party is a public
interest litigant. Se%je Southeast
1993) 1 Thomasev.ation Croft Council614 P.2d
State, 665 P.2d 544,
795, 793 (Alaska 1930) ("Plaintiffs who in good faith seek to
vindicate the strong public policy favoring fair and correctly
conducted elections should not be penalized attorney's fees unless the suit is frivolous -")-
an assessment of
In particular, the criterion that only a private party could
be expected to bring the suit is satisfied here. Because the
election supervisor "backdated" the filing time on Frith's forms
to reflect the time Frith received them, rather than the time he
filed them, the potential v o at oa of the filing deadline was
o scured. Under these circumetancbe, the only persons who would
know to question the fl.ling and who might bring suit would be
other citizens who observed @ Frith
of litigation the publiclete his forms sfter interest
deadline.le
This is the ty�
exception is' intended tt encoilrage. bee Conservation Council,
665 P.2d at 553-54. -19_
3038
.,
7
A
80 Alaska 559 PACIFIC REPORTER. 2d SERIES
George StLIDES, Appellant.
V.
Lowell THOMAS, Jr.. Lieutenant
Governor, Appellee.
Lieutenant Governor Lowell
THOMAS, Jr" Petitioner,
V.
L T. (Len) KELLEY, Respondent.
Lieutenant Governor Lowell
THOMAS. Jr., Petitioner,
V.
Len P. SCHAEFFER, Respondent.
Nos. 3019 to 3021.
Supreme Court of Alaska.
Jan. 17, 1977.
c
Ld
ry provision pertaining to filing of finan-
al disclosure statement does not deny
ual protection; that statutory require-
ent that filing of information in regard to
campaign treasurer be done within seven)I
days after filing declaration of candidacy id
not constitutionully unreasonable; and thai
promulgation of regulations implementing
statutory provision requiring filing of infor-
mation in regard to campaign treasurers
was not required.
Ordered accordingly.
k�
Candidate for state House of Repre-
sentatives brought action for injunctive re-
lief requiring lieutenant governor to place
candidate's name on primary election ballot.
The Superior Court, First Judicial District,
Juneau, Allen T. Compton, J., ordered that
candidate's name be stricken from the bal-
lot, and he appealed. Two other candidates
brought separate actions for injunctive re-
lief in regard to lieutenant governor's re-
moval of their names from ballots. The
Superior Court, Third Judicial District, An-
chorage, Peter J. Kalamarides, J., entered
orders requiring that such candidates'
names be placed on ballots, and lieutenant
governor filed petitions for review. After
the cases were consolidated, the Supreme
,Court, Rabinowitz, J„ held, inter alia, that
where a candidate did not mail financial
disclosure statement on date he filed his
declaration df candidacy, he had not
sub-
stantially complied with statutory require-
ment that he file such a statement at same
time that he filed declaration of candidacy;
that telephone conversation was not the
"filing of the campaign treasurer state-
ment"; that requiring strict enforcement of
statutory provision pertaining to filing of
campaign treasurer statement while requir-
ing only substantial compliance with statu-
X
1. Elections c=126(4)
Substantial compliance suffices in re-
gard to statutory requirement that candi-
date for state elective office file a financial
disclosure statement at same time that he
files declaration of candidacy. AS 15.25:
040(c), 39.50.020, 39.50.020(a, b).
L Elections 0-126(4)
Where person, who filed his declaration
of candidacy for seat in state House of
Representatives in Juneau on June 1, did
not mail financial disclosure statement to
Public Offices Commission in Anchorage on
June 1, he had not substantially complied
with statutory requirement that candidate
for state elective office file such a state-
ment at same time that he files declaration
of candidacy; if statement would have been
mailed on June 1, there would have been
substantial compliance with statute. AS
15.25.040(c), 39.50.020. 39.50.020(a, b).
S. Elections 0=126(4)
Normally, statutory candidate election
deadlines are strictly enforced.
4. Elections 0-168
Untimely filing of appointment of cam-
paign treasurer notification is fatal to a
candidacy; statutory provision which re-
quires that candidate file such notification
with Public Offices Commission within sev-
en days after filing declaration of candidacy
vests no discretion in lieutenant governor in
regard to noncompliance. AS 15.13.060(c).
L Elections 0-1260)
Telephone conversation, in which per-
son inforned an office of the Public Offices
L
Commission that
/
er for election c
State Legislature
campaign treasuw
i
statute requiring
and address of hi
Commission with
declaration of cl.
See
publics+
for other iud
definitions.
V
Elections c-1
Document b
fice has receiv(
ed when it is
7, Constitutional
Elections 0-2
Classificatior
complying with a
ing with statute,
to file name and
treasurer with I
within seven day.,
candidacy, is not
cause statute tt
Const. art. 1, § 1;
& Constitutional
Requiring st: ;
tory provision, wl j
date is to file r
campaign treasu I
Commission with
declaration of c:
only substantial
provision, which
for state elective
disclosure stater
files declaration c
equal protection.
15 r;.060(c), 39.5t ,
r
9. lections 1
Public Offict
quired to conduc
hearing before n:
referred to lieut,
Sion from ballot - .
statutory require
name and address
with Commission
filing declaration '
030(8). 15.13.045,
KI
oil
'i,
K
K to filing of finan-
` -nt does not deny
j statutory require•
oration in regard to
done within seven
ction of candidacy is
easonable; and that
}, .tions implementing
icing filing of infor.
ampaign treasurers
,nee suffices in re•
rement that candi-
± ffice file a financial
. same time that he
didacy. AS 15.25,
} 2%a, b).
"r filed his declaration
i in state House of
:au on June 1, did
{ osure statement to
on in Anchorage on
-stantially complied
lent that candidate
1! • file such a state -
he files declaration
at would have been
would have been
with statute. AS
1 ; 9.50.020(a, b).
i
1,
r
I>
t:
is
-candidate election
iforced.
lipointment of cam-
tion is fatal to a
rovision which re-
e such notification
mission within sev-
ration of candidacy
itenant governor in
AS 15.13.060(c).
ion, in which Per-
' the Public Offices
L
.
SILIDES v. THOMAS Alaska 81
Clio u, AI1111M. 539 P.2111 90
elmiision that he was serving as treasur-
10. Constitutional Law a318(2)
or election campaign of candidate for
Due process did not require that candi-
..tte Legislature, was not the "filing of the
date for State Legislature be afforded a
.!nllaign treasurer statement called for in
hearing before his name could he excluded
.;ttute requiring that candidate file name
from ballot by lieutenant governor for fail-
..t,i address of his campaign treasurer with
ure to comply with statutory requirement
•:nmission within seven days after filing
that candidate file name and address of his
•laration of candidacy. AS 15.13,060(c).
campaign treasurer with Public Offices
See publication Words and Phrases
Commission within seven days after filing
tor other judicial constructions and
declaration of candidacy. AS 15.13.060(c).
definitions.
�. Elections a126(4)
II. Elections 0-21
Document is filed only when proper
Statutory requirement that filing of
:,e has received it; it is not considered
name and address of a candidate's cam -
.A when it is deposited in the mails.
paign treasurer must be done within seven
days after filing declaration of candidacy is
Constitutional Law �+225.2(3)
not constitutionally unreasonable. AS IS.-
Elections C-21
13.060(c).
Classification. in regard to candidates
12. Elections a158
t•iyinK with and candidates not comply-
'
Failure of candidate for State Legisla-
4 with statute, which requires a candidate
ture to meet statutory deadline for filing
ile name and address of his campaign
name and address of his campaign treasurer
:.surer with Public Offices Commission
:i,in seven days after filing declaration of
with Public Offices Commission precluded
is not such a classification as to
candidate's name from being placed on bal-
.::(lunacy,
i:ze denyLion.
lot, absent any indication that candidate
was misled as to necessity of riling a cam-
art. 1, § 1; AS 15.13e
paign treasurer designation or as to time
�. Constitutional IAw 0=225.2(3)
for filing such designation. AS 15.13.060(c).
Requiring strict enforcement of statu-
13. Elections e-154(10)
Ily provision, which indicates that a candi-
.te is to file name and address of his
In suit by candidate for State I4gisla-
::npaign treasurer with Public Offices
ture for injunctive relief in regard to rejee•
lion of his candidacy for failure to timely
mmission within seven days after filing
file a financial disclosure and notification of
.•.-daration of candidacy. while requiring
:i,v ,uhstantial compliance with statutory
appointment of campaign treasurer, evi-
: -Vision. which indicates that a candidate
dence established that, in regard to cortain
r -fate elective offiee.is to file a financial
Senate district, lieutenant governor had
:.:c:nsurt• atotement at same time that he
complied with statutory requirement that
'es declaration 9f candidacy, does not deny'
designstiol, of campaign treasurer forms he
• ivai protection Const. art. 1, 4 1; AS
made available in a regional office in each
:.l:t.lil�1(cl. 39.50.0201ap.
Senate district. AS 15.10.110, 15.13.U�Ii(j),
4. Elections oa 158
15.13.060(c), 39.50.020.
Public Offices Commission was not re-
14. Elections 0-1250)
i-.ired to conduct an investigation and a
Though it would have been preferable
nearing before name of candidate could he
for Public Offices Commission to have pro-
••: f,•rred to lieutenant governor for exclu-
mulgated regulations implementing statu-
•.•.n from ballot for faiiure to comply with
tory provision requiring that a candidate
:atuturg requirement that candidate file
file name and address of his campaign trea-
^:une and address of his campaign treasurer
surer with Commission within seven days
.%Ith Commission ,within seven days after
after filing declaration of candidacy, pro•
::iing declaration of candidacy. AS 15.13.-
mulgation of such regulations was not re-
1130(s), 15,13.045, 15.13.iin(ile).
quirL41. AS 15.13.03000►. 15.13.060(c).
I
I
-:t
I
L � rl
82 Alaska 659 PACIFIC REPORTER, 2d SERIES
William G. Ruddy, Robertson, Monagle,
Eastaugh & Bradley, Juneau, for George
Silides.
Wilson L. Condon and Robert M. Johnson,
Asst, Attys. Gen., and Avrum hi. Gross,
Atty. Gen., Juneau. for appellee and for
petitioner in Nos. 3020 and 8021.
William D. Artus, Lytle & Associates,
Anchorage. for respondent L. T. (Len) Kel-
ley.
Kenneth D. Jensen. Jensen, Harris &
Roth, Anchorage, for respondent Leo P.
Schaeffer.
Before BOOCHEVER, Chief Justice, and
RABINOWITZ. CONNOR, ERWIN and
BURKE, Justices.
i OPINION
RABINOWITZ, Justice.
" These consolidated cases present ques-
tions regarding several of Alaska's laws
t governing elections.
George C. Silides' declaration of candida-
cy for a seat in the Alaska House of Repre-
sentaUves for House District 20 was reject-
ed by the Lieutenant Governor for the rea-
son that Silides had failed to meet the dead-
line for filing his financial disclosure state-
ment required by AS 39.50.020. Thereafter,
slides instituted an action in the superior
jcourt seeking injunctive relief requiring the
Lieutenant Governor to place his name on
the ballot for the forthcoming August 24,
1976, primary election. At the conclusion
j of the evidentiary hearings, Judge Compton
entered findings of fact, conclusions of law,
and a judgment in which it was decreed
' that the Lieutenant Governor was not re-
quired to place Silides' name on the ballot
for the impending primary election. Silides
filed a notice of appeal thus prompting the
1. The superior court further ordered that on
__-.___..-.__- .—.__'. August 1. 1976. or upon receipt of an order
from this court (whichever occurred earlier).
Silides' name would be stricken from the pri•
,r mary election ballot.
2. Justice Burke dissented.
. t.
l_
superior court to amend its final judgment
to order that SilideR' name be printed on
the ballot pending resolution of the instant
appeal!
Thereafter the Silides matter received
expedited appellate treatment. Oral argu-
ment was heard on July 29, 1976, and an
order was entered by this court on the same
date.2 This order required that the matter
be remanded to the superior court for the
entry of an additional finding of fact.
More particularly, our order required the
superior court to determine
. . . whether or not appellant
George C. Silides mailed on June 1, 1976.
a financial disclosure statement 3
(footnote omitted)
This order further provided that:
In the event . . . the Superior
Court determines upon remand that ap-
pellant mailed a financial disclosure
statement on June 1, 1976, then his name
is to remain on the forthcoming primary
ballots. If a finding is made that appel-
lant did not mail his financial disclosure
statement on June 1, 1976, his name is to
be forthwith stricken for the forthcoming
primary election.
The superior court then promptly re-
viewed the file, exhibits and testimony pre-
viously received and on July 30, 1976, en-
tered supplemental findings of fact. Inter
alia, the court made the following control-
ling findings of fact:
There is no independent evi-
dence to establish that Plaintiff deposited
an envelope addressed to A.P.O.C. in the
U: S.. Postal Service collection box on
June 1, 1976.
. . . It is more probably true than
not that Plaintiff's Financial Disclosure
Statement was not mailed on June 1,
1976. The Court so finds.
S. Concerning this finding we advised the supe-
rior court that it ". . . may consider the
date indicated on the postmark on the envelope
as evidence of the date of mailing. but such
evidence does not create an irrebuttable pre.
sumption."
L L_
In accordam
remand order
having found
sure Statemen
1976,
IT IS ORDF
is to be forth%
lots for the foi
In the L. T.
granted review
nor's petition of
Rion of July 15, 1
place Keiley's n
candidate for th.
District B, in the
election." The
notified Kelley t
didacy for the I
one of the seats
rejected due to I
appointment of
quired by AS 15.
filed an action in
an order declarit
candidate, placir
for the 1976 elec
enjoining the Lit
moving his nair
ballot. The mat -
or court upon
cross -motions fo.
his decision Jud
part: !
Tht j
should be strit
this regard ono
as being of pr
the failure, in
apply the statt:
ing to the can
ess with simii
candidates. F
this court hol
been denied tl
ties, and prote,
ed to him by
Alaska Constit
. . . Plait
judgment is I
4. In our order to
the orders whit►
F1
K
I its final judgment
lame be printed on
ution of the instant
-s matter received
itment. Oral argu-
y 29, 1976, and an
a court on the same
,ed that the matter
ierior court for the
I finding of fact.
order required the
nine
or not appellant
ed on June 1, 1976,
statement . . l
ided that:
. the Superior
n remand that ap.
:nancial disclosure
,976, then his name
•rtheoming primary
s made that appel-
financial disclosure
.976. his name is to
'or the forthcoming
ben promptly re -
and testimony pre -
July 30, 1976. Ba-
ngs of fact. Inter
following control -
A
t
J.
independent evi-
Plaintiff deposited
to"A.P.O.C. in the
co:ler•tion box on
irobably true than
:naneial Disclosure
tailed on June 1,
Inds.
xe advised the supe-
may consider the
nark on the envelope
if mailing, but such
an irrebuttable pre -
In
SILIDES Y. THOMAS Alaska 83
cite so. Ab 5119 pad so
In accordance with paragraph 43) of the
Governor is hereby directed to place
remand order of July 29, 1976, this Court
Plaintiff's name on the ballot sit a eandi-
having found that the Financial Disclo-
date for the State Legislature, House
sure Statement was not mailed on June 1,
District 8, in the forthcoming 1976 pri-
1976,
mary election.
IT IS ORDERED that plaintiff's name
The Lieutenant Governor filed a petition
is to be forthwith stricken from the bal-
for review of the superior courts decision.
lots for the forthcoming primary election.
Review was granted, oral argument held
In the L. T. (Len) Kelley matter, we
and a prefatory order entered on July 20, -
granted review on the Lieutenant Gover-
1976. By virtue of this order the superior
nor's petition of Judge Kalamarides' deci-
court's decision of July 16, 1976, was re-
sion of July 15, 1976, which directed him to
versed and Kelley's name was ordered
place Kelley s name on the ballot as a
forthwith stricken from the ballots for the
candidate for the State Legislature, House
forthcoming primary election because of his
District 8, in the forthcoming 1976 primary
failure to comply with AS 15.13.060(c)." e
election." The Lieutenant Governor had
The Leo P. Schaeffer case is somewhat
notified Kelley that his declaration of can-
factually similar to the Kelley case. In the
didacy for the Democratic nomination for
Schaeffer matter we granted review of
one of the seats from House District 8 was
Judge Kalamarides' decision of July 15,
rejected due to his failure to timely file an
1976, which provided in part that:
appointment of campaign treasurer as re-
quired by AS 15.13.060. Thereafter, Kelley
This case was heard in tandem with the
filed an action in the superior court seeking
Kelley case, and taking notice of certain
an order declaring that he was a qualified
evidence submitted therein, this court is
constrained to hold that this plaintiff for
candidate, placing his name on the ballot
for the 1976 election year and permanently
the reasons stated in the decision ren-
enjoining the Lieutenant Governor from re-
dered in that companion case, is deemed
moving his name from the 1976 election
qualified as of this date to have his name
ballot. The matter came before the superi-
placed on the ballot in the upcoming pri-
or court upon a factual stipulation and
mary election,
cross -motions for summary judgment. In
. . . The lieutenant governor is
his decision Judge Kalamarides stated in
hereby directed to place plaintiff's name
part:
on the ballot as a candidate for the State
The candidacy requirements
Legislature, House District 21, in the
should be strictly complied with, but 1976 primary election.
finforthcoming
this regard one must note what is viewchaeffer's
candidacy was rejected by the
as being of paramount importance heLieutenant
Governor because of his assert -
the failure, intentional or othenv;�,
.ad failures to tintsly file a financial diselo-
apply the statutory requirements pertain
sure as required by AS 39.50-PA) and nn
ing-tothe candidacy qualifir:tions proc
ppointment of campaign treasurer as re-
itess
with sitnilar force to aid would be
quired by AS 15.18.G60. Thereafter Schaef-
candidates. For this reason, if no other,
er instituted suit for preliminary injunc-
this court holds that the plaintiff has
tive relief and, after hearing, Judge Kala-
been denied the equal rights, opportuni-
marides issued his decision. As previously
ties, and protections under the law grant-
indicated we granted review upon the peti-
ed to him by Article 1, section 1, of the
tion of the Lieutenant Governor, unit after
Alaska Constitution.
expedited hearing entered an order, on July
. . Plaintiff's motion for summary
29, 1976, which reversed Judge Kalamar-
.
judgment is gmnte d. The Lieutenant
idea' decision and ordered that Schaeffer's
4. In our order in the Kelley case, as well as in
the orders which were entered in the Silides
and Schaeffer matters. it was indicated that an
opinion would be forthcoming.
191
L
84 Alaska 559 PACIFIC REPORTER, 2d SERIES
name be forthwith stricken from the ballots L of candidacy pursuant to AS 15.25,0110 and
office office maof y b e
Li
for the forthcoming primary election be.
S 1525.040.5 Secondly, pursuant to AS
election sth en i
cause of his failure to comply with AS 15.25.050, the candidate is required to pay a
ing tune) on flit
15.13.060(c). filing fee at the time his declaration of
edcing the elec
c
Before discussing in detail the basis for candidacy is filed. Thirdly, AS 39.50.020
requires that the candidate file a financial
din that the r
our decisions in these cages, we think it
disclosure statement! The final require-
vial disclosure s
appropriate that the statutory framework
ment, found in AS 15.13.060(c), specifies
the candid:
that that d
lara
against which these appellate matters must
he resolved be outlined. A candidate for that the candidate must appoint a campaign
on of car
they providesIt
the Alaska Legislature must meta certain treasurer whose name and address must he
statement must
statutory prerequisites before his or her filed?
Public Offices I
name may be placed on the primary ballot.
AS 15,25.040 provides that the declaration
located in Anch
First, the candidate must file a declaration of candidacy of a candidate for district -wide
after the candit
8. AS 15 25.040(a) and (c) provide as follows:
petition. declaration of candidacy, or other
candidacy, he
treasurer and n
(a) The declaration is filed by either
(1) the actual physical delivery of the dec-
required filing for the elective municipal of-
five. Refusal or failure to file within the time
dress of the ea
laration in person at or before 5:00 P. m.,.L
prescribed shall require that the candidate's
Alaska Public I
prevailing time. June 1 of the year in which a
filing fees, it any, and filing for office be
ehorage.te
general election is held for the office, or
(2) the actual physical delivery by tele•
refused or that his previously accepted filing
fee be returned and his name removed from
It Is against
gram of a copy in substance of the state-
the filing records. A statement shall also be
that we now It .
ments made in the declaration at or before
tied by public officials no later than April 15
before us. On
5:00 p. m.. prevailing time, June 1 of the year
or IS days after the person files his federal
mately 8:30 a. rt ;
in which a general election is held for the
office and also the actual physical delivery of
income tax return in each following year,
whichever shall come first. Persons who. on
of the Lieutenar
the declaration by registered mail which is
or after December 11, 1974, were members of
his declaration ;
postmarked at or before 5:00 p. in., prevail-
boards or commissions not named in § 200(9)
Ing time. June 1 of the year in which a gener-
of this chapter are not required to file finan•
or his nomin-
al election Is held for the office and received
cial statements.
candidate mad
not more than 15 days after that time.
(e) A candidate for a statewide office shall
(b) The governor, lieutenant governor,
members of the legislature, and candidates
lieutenant got
the candidate
file with the lieutenant governor. A candi-
date for a district -wide office shall file either
for these offices, judicial officers, each com-
missioner. head or deputy head of. or di-
lion.
& See note S to
with the lieutenant governor or an election
supervisor. If the candidate files his declara-
rector of a division within, a department in
(ices are loutec
tion with an election supervisor. the election
supervisor shall immediately forward the
the executive branch, assistant to the gover•
nor or chairman or member of a commission
and Fairbanks.
Pursuant to A.
declaration to the lieutenant governor.
or board required to report under this chap-
ter, shall file the statement with the Alaska
for district•wtde
may file the de
6. AS 39.50.020 is a provision of the Conflict of
In Act, effective on December 11. 1974.
law by virtue oInitiative No. 2.
Public Offices Commission. Municipal offi•
cers, and candidates for elective municipal
r i
physical delivecame
information rest i
which became
office, shoji file with the municipal clerk or
p. in. on the 1st
AS 39.50.020 provides as follows:
• (al A judicial officer, commissioner, chair-
other municipal official designated to receive
the Lieutenant t
man or -member of a State commission or
their filing for office. All statements re-
quired to be filed under this chapter are pub-
Previously ment
(ices. The mar
board specified in § 200(9) of this chapter.
person•hired or appointed as head or deputy
lic records.
must be postma:
1. See AS IS2
head of. or director of a division within, a
7. AS 15.13.000(c) is a provision of the Cam-
AS Ilion of0
department in the executive branch, person
appointed as assistant to the governor, and a
paign Disclosure Act which became law by the
enactment of Chapter 70, SLA 1974. AS I5.•
declaration e.
municipal officer. shall file a statement giv.
13.000(a) and (c) provide as follows:
a
dote nor.shalpay
governor."
ing his income sources and business inter.
eats, under oath and on penalty of perjury,
(a) Each candidate and group shall ablator
a campaign treasurer is responsible for
S. For the text o i
within 30 days after he takes office as a
official. Candidates for state elective
disbursing
receiving, holding. and disbursing all
h
note 0 supre.
public
office shall file such a statement at the time
of filing a declaration of candidacy or within
ml:conal-
buttons and statements res. and for flaw. all
reports and statements required by law. A
0601
10. Al IS.I3.0
of Alaska's Cam
30 days of the filing of any nominating pets-
30 days of becoming a candi•
candidate may be a campaign treasurer
(c) Each candidate shall file the name and
7 supra.
The I
lion. or within
date by any other means. Candidates for
office shall file such a
address of the campaign treasurer with the
commission no later than seven dots after
11. Alaska
anticipation of
elective municipal
statement at the time of filing a nominating
the date of filing his declaration of candidary
whathasbeen
:I
L
AS 15.25.0-30 and
pursuant to AS
required to pay a
is declaration of
ply, AS 39.50.020
it file a financial
he final require-
1.0fte), specifies
paint a campaign
I address must be
'. at the declaration
f for district -wide
+i :andidacv, or other
-ikj!ctive municipal of -
file within the time
.hat the candidate's
filing for office be
-ugly accepted filing
lame removed from
•ement shall also be
i later than April 15
j son files his federal
ich following year.
t. Persons who. on
4. were members of
it named in 4 200(9)
I •quired to file finan.
:•utenant governor.
are, and candidates
officers. each com-
ity head of, or di -
in, a department in
sistant to the gover.
ner of a commission
ort under this chap,
ent with the Alaska
on. Municipal offi.
r elective municipal
municipal clerk or
:rsignated to receive
All st91PmPnts re;
1 -his che{,icf are pub
:t ision of the t:am-
.i became law by the
SLA 1974. AS IS. -
as follows:
1 group shall appoint
•io is responsible for
hsbursing all contn-
•s. and for filing all
required bylaw. A
.upaign treasurer.
ill file the name and
i treasurer with the
in seven days after
aration of candidacy
1
office may be delivered in person to the
requisite filing fee. lie brought with him
office of the Lieutenant Governor or to un
at that time his financial disclosure state -
election supervisor before 5 p. in. (prevail-
ment and had an employee in the Licuten-
ing time) on the June 1st immediately pre.
ant Governor's office notarize it." Silides
ceding the election a AS 39.50.020(a) pro-
subsequently mailed his financial disclosure
vides that the candidate must file a finan-
statement to the Alaska Public Offices
Aic cial disclosure statement at the same time
Commission in Anchorage. The envelope
that the candidate is required to file a dec.
bore the Juneau postmark "June 2 p. m.
laration of candidacy. AS 39.50.020(b) fur-
1976." The disclosure statement arrived in
ther provides that the financial disclosure
the mail at the Alaska Public Offices Com-
statement must be filed with the Alaska
mission in Anchorage on June 4, 1976.
Public Offices Commission whose office is
After hearing evidence on the matter,
located in Anchorage! Within seven days
Judge Compton ruled that "deadlines im-
after the candidate files his declaration of
poser) for requirements which must be met
candidacy, he must appoint a campaign
by would-be candidates before they may
treasurer and must file the name and nd-
qualify to have their names placed on the
dress of the campaign treasurer with the
primary ballot are strictly construed and
Alaska Public Offices Commission in An.
strictly enforced"; that AS 39.50.020 ex-
chorage.te
presses a deadline for the filing of financial
It is against this statutory background
disclosure statements which must be "strict.
that we now turn to the individual eases
ly enforced"; and that "there is no ambigu-
before us. On June 1, 1976, at approxi-
ity concerning what that deadline actually
mately S:SO a. in., Silides went to the office
is." The superior court further held that
of the Lieutenant Governor in Juneau, filed
substantial compliance with a filing dead.
his declaration of candidacy and paid the
line is "not sufficient";12 that a candidate
or his nominating petition. The name of the
sheet." Mr. Silides admitted he received the
candidate may be placed on the ballot by the
blue instruction sheet. In this document candi-
lieutenant governor or municipal clerk only ill dates were Informed that financial disclosure
the candidate has complied with this aubsecol
statements must be filed "at the time of filing a
tion.
declaration of candidacy." Additionally, the
s. see note 5 supra. Election supervisors' of-
candidate was advised as follows:
fces are located in Juneau, Anchorage, Nome
While this form is to be filed with the Public
and Fairbanks. See AS 15.10.110.
offices Commission, for your convenience, it
Pursuant to AS 1525.040(a)(2), the candidate
is suggested that you complete the attached
for district -wide office, at his or her option,
form and submit one copy with your nomi.
may file the declaration of candidacy by the
nating petition and retain the other copy for
physical delivery of a telegram containing the
Information required by AS 15.25.030 before 5
your records. The office accepting your
nominating petition will then note that you
p. in. on the 1 st of June to either the office of
the Lieutenant Cove; nor or one of the several
have complied with the Financial Disclosure
previously mentioned election supervisors' of•
Law timely and will then forward your finan.
csal disclosure statement to the Pubiic Offuces
• ficrs. The mailed Jedivabon of raiididfcy
:must br pwtt•ngrked at or belcre 5 p. in., June
Commission.
1. See AS 15.25.040(a)(2).
AS 15.2:i.oSe regwres that at the time the
The record shows that after the financial dis.
closure statement was notarized. another eta -
declaration of candidacy is filed "each candi-
ployee in the Lieutenant Gaiernor's o fice
date shall pay a filing fee to the lieutenant
urged Silides to file the statement with that
governor."
office at that time.
9. For the text of AS 39.50.020(a) and (b) see
1
. In connection with this point the court fur.
note 6 supra.
ther stated:
10. AS 15.13.060(c). For the text of this portion
of Alaska's Campaign Disclosure Act see note
The reason for rejecting the doctrine of
substantial compliance is that the docinne
7 supra.
would make the qualification procedure sub.
ject to arbitrary abuses and very likely create
11. The Alaska public Offices Commission. in Imore.
rather than fewer, conflicts in the en -
anticipation of the 1976 elections, prepared
what has been called a "blue instruction
forcement of election filing deadlines.
A
L
$s Alaska 569 PACIFIC REPORTER, 2d SERIES
can be excused from compliance with the
deadline imposed by AS 39.30.020 "only if
he can demonstrate as a matter of fact that
he has been affirmatively misled concerning
the time of, or method of, complying with
the deadline requirements" Control to the
perior court's conclusion that the Lieuten-
ant Governor properly refused to place Sil-
ides' name on the ballot was the court's
ruling that the term "file" did not compre-
hend placing the particular document in the
United States mail. On the contrary, the
court defined the term as meaning "the
physical delivery of the document or paper
required to be filed to the official or office
of the designee of the official or office with
whom the document or paper must be
filed."
Before this court, Silides first argued
that the proper location for the filing of the
financial disclosure statement is unclear.
In support of this contention, Silides con-
trasts the direction embodied in AS 39.50.-
020(b) which requires financial disclosure
statements to be filed in the office of the
Alaska Public Offices Commission in An-
chorage, with the administrative practice of
the Lieutenant Governor's office which has
customarily accepted financial disclosure
statements from candidates and has then
forwarded the statements to the Alaska
Public Offices Commission." Secondly, and
more significantly, Silides contended that
the superior court erred in concluding, as a
matter of law, that AS 39.50.020 was not
ambiguous. Central to this argument is the
view that AS 39.50.020(a) contemplates that
the act of filing a financial disclosure state-
ment by a candidate is to be carried out
concurrently with the act of filing the dec-
Ia. Silides notes that the Alaska Public Offices
Commission deems these statements timely
filed if they are timely filed with the Lieutenant
Governor's office.
As a further source of filing confusion Silides
points to the Notice to Candidates which was
published by the Alaska Public Offices Com-
mission. In the cover letter to this document.
It is stated that candidates may submit their
financial statements with their "Nominating
Petitions." Silides thus asserts that "Icpurious-
ly, the some convenience Is not extended by the
laration of candidacy. In Silides' view it is
"patently impossible" for him to have filed
his financial disclosure statement at the
same time he filed his declaration of candi-
dacy, since the latter may be filed in Ju-
neau (AS 15.25.040(c)) while the only autho-
rized place of filing the former is Anchor-
age (AS 39.50.020).
11,21 Given the statutorily created ten-
sion between the plan, of filing require-
ments found in AS 39.50.020(b) anti AS
15.25.040(c), we were persuaded by Silides'
arguments and concluded that this factual
circumstance presented an appropriate oc-
casion for departure from the normally sa-
lutary doctrine that election deadlines must
be strictly construed and strictly enforced.14
We concluded, given the lack of clarity in-
herent in AS 39.50.020 and the impossibility
of compliance with AS 39.50.020 for a
would-be candidate living in Juneau who
files his declaration of candidacy near the
June deadline, that substantial compliance
with the filing requirements of AS 39.50.-
020 would suffice.ts Thus we held that if
Silides mailed his financial disclosure state-
ment to the Alaska Public Offices Commis-
sion in Anchorage on June 1, 1976, then his
name was to appear on the forthcoming
primary ballot. As mentioned earlier, upon
remand the superior court found that Sil-
ides had not mailed his financial disclosure
statement prior to the expiration of the
June 1, 1976, deadline. As a result Silides'
name did not appear on the primary ballots.
The. Kelley and Schaeffer cases turn on
whether or not these petitioners timely
complied with the filing requirements of AS
15.13.060(c) of the Campaign Discloswe
Alaska Public Offices Commission to non -peti-
tion candidates such as Plaintiff."
14. These doctrines will be discussed subse-
quently in more detail.
IL Justice Burke dissented from this position.
In his view. AS 39,50.020 required that the
candidate's financial disclosure statement be
filed, that is physically received. in the Anchor•
age office of the Alaska Public Offices Commis-
sion prior to expiration of the June 1, 1976,
deadline.
L
Acl'$ This stai
dilate file the
her campaign
Public Offices
seven days after
ration of candid
fitly provides the
may place the n,
ballot "only if i
with this sulmct
13.41 Our co
both Kelley and
en from the At
based on their r,
with the filing
15.13.060(c). Oi
and Schaeffer c.
legal principle
election deadline
forced. See lllct
sore of Election...
393 (bid.1966).
Supervisors of J
A.Zd 121 (1957):
Wis. 443,43 VAV
ale for requirini
deadlines was t
the Supreme Cot
v. Cashman,132
(1974), in the fa
The [public
ministering ek ,
alter or amer !
will, but is hot.
ments, subject ,
he may be git
to make or wF
may, by law, i
IL For the full to
7 supra.
17. See Vandross
207 (D.S.C.1972
S.W.2d 919 (Ky.1
State. 233 h1d. P
v. Batcheror. 15
(1942).
I& In an afOdavi
ham Anus evert
Later that s:.
the Alaska Pu
spoke with Ms
duties and the
L
n Silides' view it is
r him to have filed
statement at the
eclaration of candi-
►a4 be filed in Ju-
hile the only autho.
former is Anchor-
itorily created ten -
of filing require-
.50.020(b) and AS
rsuaded by Silides'
d that this factual
an appropriate oc-
n the normally sa-
ion deadlines must
strictly enforced.14
lack of clarity in -
id the impossibility
�j i 39.50.09-0 for a
I� ig in Juneau who
andidacy near the
tantial compliance
j ents of AS 39.50.-
t; us we held that if
al disclosure
state -is Offices Commis-
te 1.1976. then his
i the forthcoming
ioned earlier, upon
rt found that Sil-
'inancial disclosure
expiration of the
4s a result Silides'
he primary ballots.
ffer cases turn on
jj petitiuners timrly
equirerrents u-.7 kS
npaign Di-tel sure
imtssion to non•peu-
IaintifL"
ie discussed subse-
IV
I from this position.
G
4 required that the
— -- ----- - —'di
,sure statement he
#,
rived, in the Anchor.
It 4i
hlic Offices Commis.
I the June 1. 1976.
�I
t1
•1
FFFI V I�;:
SILIDRS v. THOAtAS Alaska 87
Cho as. Alaska.
539 P.2d 80
Act.ls This statute mandates that the can-
otherwise would he to invite individual
dilate file the name and address of his or l�
(officials) to render election law confused
her campaign treasurer with the Alaska _
or chaotic, or to ignore it altogether, ac-
Public Offices Commission no later than
cording to their personal evnluntion of
seven days after the date of filing his decla.
circumstances. (emphasis added)
ration of candidacy. AS 15.13.060(c) explic-
791fice we thought it clear from the text of
itly provides that the Lieutenant Governor
AS 15,13.060(c) that untimely filing of an
may place the name of the candidate on the ppointment of treasurer notification is fa -
ballot "only if the candidate has complied
tal to a candidacy, anti that the statute
with this subsection."
vested no discretion in the Lieutenant Gov-
[3.4] Our conclusion that the names of
ornor in the circumstance of such nun-com-
both Kelley and Schaeffer should he strick-
pliance, we held that AS 15.13.060(c) should
on from the August primary ballots was
be strictly enforced."
based on their respective failures to comply
The factual situation in the Kelley case
with the filing deadline calltni for by AS
which led to our conclusion that AS 15.13:
15.13.o60(c). Our holdings in the Kelley
060(c) should he strictly enforced and that
nil Schaeffer cases were grounded on the
no circumstances were shown which would
r-Alegal principle that statutory candidate
justify departure from this principle was as
election deadlines are normally strictly en-
follows. Kelley timely filed his declaration
forced. See McGinnis v. Board of Supervi-
of candidacy, filing fee and financial diselo-
sots of Elections, 244 Md. 65, ZZZ A.Zd 391,
sure statement in the appropriate offices.
39r3 (Nd.1966); Chamberlain v. Board of
According to the parties' stipulated facts,
Supervisors of Elections. 212 Md. 342. 129
on June 7. 1976. Kelley
A.2d 121 (1957); State v. Zimmerman, 257
through his treasurer, William D. Artus,
Wis. 413.43 N.W.2d 681(1950). The ration-
telephoned the Anchorage office of the
le for requiring strict adherence to these
Alaska Public Offices Commission and
deadlines was thoughtfully articulated by
Mr. Artus informed said office that he
the Supreme Court of Vermont in Ryshpan
was serving as treasurer for the election
V. Cashman, 132 Vt. 628, 326 AN 169, 170
campaign of L. T. (Len) Kelley. During
(1974), in the following manner:
that conversation, Mr. Artus left his
The public official responsible for ad-
name and address with the Alaska Public
miru to(ring elections) is not authorized to
Offices Commission!a
alter or amend mandatory statutes at
Kelley unsuccessfully attempted to per -
will, but is bound to follow their require-
suede the Lieutenant Governor that this
ments, subject only to whatever authority
June 7th telephone conversation constituted i
he may be given within their provisions
substantial compliance with the campaign
to make or whatever extent directing he
treasurer filing provisions of AS 15.13. !
may, by law, be bound to obey. To say
uti0(c). Thereafter Feiley filed an acti:,a in
16. For the full test of AS 15.i:1.060(c) set note
campaign treasurer. Gi:ring bias crmversa•
7 supra.
Lion, Ms. Hudson informed me that a pamph-
17. See Vandrosa v. tilllsor, 347 F.Supp. 197,
let or booklet listing the filings, deadlines,
and other requirements for campaign trea•
207 (D.S.C.1972); Fannin v. Cassell. 487
S.W.2d 919 (Ky.1972); Andrews v Secretan• of
surer was in the process of being printed and
State. 235 Md. 106. 200 A.2d 650 (1964); State
v. Batchelor. 15 Wash.2d 149, 130 P.2d 72
was not available at that time. She further 1
informed me that a campaign treasurer did
11942)
not have to file any papers or reports until 30
18. In an affidavit filed in superior court. Wil-
liam Artus averred, in part. that:
Later that same day. 1 called the office of
the Alaska Public Offices Commission and
spoke with Ms. Wilda Hudson regarding my
duties and the requirements of the office of
days prior to the primary election.
Also during the above referenced phone
conversation, 1 left my name and address
with Ms. Hudson at the same time indicating
that 1 would be acting as campaign treasurer t
for L. T. "Len" Kelley.
I
Y(r
l
W
L:
L
88 Alaska 559 PACIFIC REPORTER, 2d SERIES
the superior court seeking an order compel-
ling the Lieutenant Governor to place his
name on the ballot. In his amended com-
plaint Kelley alleged seven separate causes
of action in support of his requested relief.
However, as indicated previously, Judge
Kalamarides' decision was grounded on only
one of these, specifically that the Lieuten•
ant Governor's unequal enforcement of AS
39.50,020 precluded him from enforcing the
filing requirements of AS 15.13,060 as to
aspiring candidates.1e
Of the numerous grounds which were ad-
vanced both here and in the superior court
requiring Kelley's name to appear on the
ballot, we will only discuss in detail those
grounds which we deem warrant more than
summary disposition.
[5,6] A major contention advanced by
Kelley both here and before the trial court
is that Artus' telephone conversation of
June 7th constituted the filing of the cam-
paign treasurer statement called for by AS
15.13.060(c). We rejected this contention
for several reasons. AS 15.13.060(c) re-
quires candidates to "file" campaign trea-
surer statements within a specified time
limit. The definition of "file" is well estab-
lished in the law. It has been consistently
held that a document is filed only when the
proper office has received it, and that it is
not considered filed when it is deposited in
the mails. Blades v. United States, 407
F.2d 1397, 1399 (9th Cir. 1969); United
States v. Easement and Right -of -Way, 386
F.20 769, 771(6th Cir. 1967); Wirtz v. Hod
Carriers Local 169, 246 F-Supp. 741, 753
(D.Nev.1965); Mears v. Mears, 206 Va. 444,
148 S.E.2d 889 (1965); R M. Boerke, Inc, v.
Williams, 28 Wis.2d 627, 137 N.W.2d 489,
493 (1965). See also Wade v. Dworkin, 407
19. Thts ruling of Judge Kalamarides was based
on the equal protection clause of art. 1, sec. 1 of
the Alaska Constitution.
The facts upon which Judge Kalamarides
concluded that AS 39-50.020 had been enforced
in an unconstitutional manner were as follows:
Me. Hudson testified that as a matter of policy.
Incumbent legislators who had previously filed
a financial disclosure form as required by AS
39.50.020 were not required to refile the some
forms with the Alaska Public Offices Commis-
sion at the time they filed their declaration of
P.2d 587 (Alaska 19M Given the text of
AS M3.060(c), the legal meaning of the
term 'file" and our adoption of the doctrine
that statutory election deadlines are to he
strictly enforced, we concluded that the
June 7th telephone conversation cannot be
deemed an appropriate filing within the
intendment of AS 15.13.06((c)P
[7] 'Kelley next contends that AS 15.13.-
060 is unconstitutional in that it sets up
"invalid class legislation." We find this
contention devoid of merit. The two
groups classified by virtue of AS 15.13.060
are those candidates who have complied
with the law and those who have not; the
failure to adhere to AS 15.13.060 is the
dividing line. Therefore, we hold that un-
der any possible equal protection test AS
15.13.060 passes constitutional muster.
[8] Kelley's third contention is that
Alaska's laws requiring timely filing of
election related information are being ap-
plied in an arbitrary and capricious manner.
Kelley's position is that since AS 39.50.020
has been unequally enforced, AS 15.13.-
060(c) cannot be strictly enforced and thus
Artus' telephone call must be deemed a
sufficient filing. Our review of the record
has convinced us that Judge Kelamarides
erred in holding that unequal enforcement
of AS 39.50.020 required the conclusion that
Kelley had in fact substantially complied
with the filing requirements of AS 15.13.-
060(c). When faced with a claim of un-
equal enforcement of civil laws, we think it
appropriate that the claimant meet the cri-
teria articulated in Snowden v. Hughes, 321
U.S.1, 8, 64 S.Ct. 397, 401, 88 L.Ed. 497, 503
(1944). There the Supreme Court of the
United States set forth the following test:
candidacy a few weeks later. Further evidence
was adduced that Ms. Susan Sullivan, an in-
cumbent legislative candidate, failed to file her
financial disclosure statement by the April 15
deadline imposed on incumbent legislators: she
filed a few days later.
20. At oral argument, Mr. Anus disavinved any
previous intimation that he had in any way
been misled by personnel of the Alaska Public
Offices Commission as to the deadline or filing
requirements for the campaign treasurer state-
ment.
The unlawfu
officers of a sta
resulting in it -
those who are e-
is not a denial
there is shown
element of into
crimination it
We agree with A '
in Sirbo Holding. -
Internal Revenue.
Cir.1975►. in whit.
an crrur in one t
er(s] . . . r
tion." The recor
show an instance
ful discrimination
(9) For his foe
sects that only of
fives Commission '
gation pursuant t
15.13.045 and a
15.13.045 can the '
referred to the
exclusion from th
15.13.060(c) contra
tention, for uncle 3
Lieutenant Gove
from placing the
the ballot if thc�
[10] Kelley ah .
ess of law entil,6
his name could bt
by the Lieutenan.
argument unper•i 1
statutes do not 'r-
record shows that
are in dispute. I
the Lieutenant G
to conduct an adi
Anti -Defamation
21. See also Flies i
315. 319-20 (dd c {
497 F.2d 1231. 1- .
22. Kelley also ma
quirement of filer.
treasurer within s
ration of candid.
Sundays. This I
provisions of AS
The time in v
Is required to bt
ff
�f.
L
,
r.
-
a
:al
;.i
7
S
a-
(�
9
a
S
t
i�
1
�i
i
(liven the text of
.al meaning of the
,tion of the doctrine
deadlines are to be
vncluded that the
rersation cannot be
filing within the
•nds that AS 15.13:
in that it sets up
n." We find this
merit. The two
us of AS 15.13.060
•ho have complied
who have not: the
S 15.13.060 is the
•, we hold that un•
protection test AS
tional muster.
ontention is that
timely riling of
tion are being ap.
capricious manner.
since AS 39.50.020
forced, AS 15.13.-
enforced and thus
Lust be deemed a
view of the record
udge Kalamarides
equal enforcement
the conclusion that
tantially complied
ents of AS 15.13:
h a claim of un-
J laws, we think it
pant meet the cri-
len V. pughes, 3�1
381•.F.i1. •10T, •i0[i
'ink Cour• of thi
tie foilow•ing teal:
-r. Further evidence
san Sullivan, an on.
ate, failed to file her
Ivor by the April 15
bent legislators: she
Nrtus disavowed any
tie had in any way
d the Alaska Public
he deadline or filing
ogn treasurer state.
L
S)ILIDES v. THOMAS Alaska 89
cita as. Alaska,
539 P.26 80
The unlawful administration by state
FCC. 131 U.S.App.D.C. 146, 403 F.2d 169
officer. of a state statute fair on its face,
(1969). curt. denied. 394 U.S. 930, 89 S.Ct.
resulting in its unequal upplication to
1190, 22 LXd.2d 4S9 (1969): Sun Oil Crr. v.
those who are entitled to be treated alike,
FTC, M6 F.2d 233 (5th Cir. 1958).
is not a deninl of equal protection unless
there is shown to he present In it an
[II) Kelley's final contention is that the
element of intentional or purposeful dis-
statutory requirement that a candidate's
crimination.
designation of treasurer he filed by a speci-
We agree with Judge Friendly's statement
fled due date "has no reasonable relation -
in Sirbo Holdings, Inc. v, Commissioner of
ship to any legitimate governmental pur-
/nternal Revenue, 509 F.2d 1220. 1222 (2d
p� and fosters arbitrary enforcement by
Cir. 1975). in which he said, "The making of
the State." We find this contention lacking
an error in one case . . . gives oth-
in merit. Under Alaska's Constitution, it is
et[s] . . . no right to its perpetua-
within the province of the legislature to
tion.' The record here simply does not
establish election procedures. We remain
ow an instance of intentional or purpose-
unpersuaded that the legislature's choice of
fur discrimination against Kelley.
a deadline for the filing of a campaign
[9) For his fourth argument Kelley as.
treasurer designation was constitutionally
serts that only after the Alaska Public Of.
unreasonable.92
fices Commission has concluded an investi-
This brings us to Schaeffees position.
gation pursuant to AS 15.13.030(8) and AS
Our disposition of the Kelley petition fur-
15.13.045 and a hearing pursuant to AS
nishes the basis for resolution of several of
15.13.045 can the name of the candidate be
the issues Schaeffer raised in the superior
referred to the Lieutenant Governor for
court and before this court. It will be
exclusion from the ballot. The text of AS
recalled that Schaeffer, a resident of Kotze-
15.13.060(c) controls disposition of this con-
bue, attempted to qualify as a candidate for
tention. for under this provision it is the
the legislature representing House District
Lieutenant Governor who is prohibited
21 in the 1976 primary election. On May
from placing the names of candidates on
28, 1976, Schaeffer sent the Lieutenant
the ballot if they fail to timely file.
Governor a telegram containing substan-
[101 Kelley also contends that due proc.
tially all of the information necessary for a
ess of law entitled him to a hearing before
declaration of candidacy and followed this
his name could he excluded from the ballot
telegram with an actual declaration of Can-
by the Lieutenant Governor. We find this
didacy.23 However. Schaeffer sent, on or
argument unpersuasive since the pertinent
about June 13. 1976. his financial disclosure
statutes do not require a hearing and the
statement and designation of campaign
record shows that none of the relevant facts
treasurer to the office of the Alaska Public
are in dispute, Under such circumstances
Offices Commission in Anchorage. These
the Lieutenant Governor was not required
documents were received in Anchorage on
to conduct an atim.:,ittrative hearing. See
June 1151; 1976. and hecause t"I financial
Anti-Defumatiun I.ewe ,.r B'nai $'rith V.
disclosure statement was two wcekq late
21. See also Friedlander v. Cimino. 520 F.2d
318, 319.20 (2d Cir. 1975): Tollett v. Laman,
497 F.2d 1231. 1233 (8th Cir. 1974).
22. Kelley also made the argument that the re-
quirement of filing a declaration of campaign
treasurer within seven days after filing a decla•
ration of candidacy excluded Saturdays and
Sundays. This position fails in light of the
provisions of AS 01-10.080 which slates:
The time in which an act provided by law
is required to be done is computed by exclud•
ing the first day and including the last, unless
the last day is a holiday, and then it is also
excluded.
See also Wade v. Dworkin. 407 P.2d 597 (Alas-
ka 1965).
23. See AS 15.25.0411(02) which authorized
this procedure. Schaeffer also sent a check for
$30 with his declaration in satisfaction of AS
15.25.050.
L
L
it
�.
z.
iy
559 PACIFIC REPORTER. 2d SERIES
and the designation of campaign treasurer
one week late, the Lieutenant Governor de-
termined that Schaeffer's name should not
he placed on the ballot.
Schaeffer brought suit in the superior
court where his ease was consolidated with
Kelley's and the matter then heard by
Judge Kulamarides. As noted earlier,
Judge Kalamarides grounded his decision to
permit Schaeffees name to appear on the
ballot upon the conclusion that AS 39.M).020
had been subject to unequal enforcement
and therefore Schaeffer's upparent non-
compliance with the deadlines of AS 15.13:
06%c) and AS 39-50.020 was excusable. Af-
ter expedited processing of the Lieutenant
Governors petition for review, we reversed
Judge Kalamarides' decision on the sole
ground that Schaeffer had failed to timely
comply with the campaign treasurer desig-
nation filing requirements of AS 15.13:
060(c).
[12) As in the Kelley case, our review of
the record in Schaeffer's case has convinced
us that a finding of an "intentional or pur-
poseful discrimination" against Schaeffer is
simply not sustainable. Snowden v.
Hughes, 321 U.S.1. S. 64 S.Ct. 397,88 L.Ed.
497, 508 (1944). Thus, faced with a record
devoid of such a showing, we concluded
that Judge Kalamarides erred with respect
to the express rationale for his decision
ordering Schaeffer's name to be placed on
the ballot. Our discussion in the Kelley
24. The record shows that on May 28, 1976.
Schaeffer sent a telegram from Kotzebue to the
Supervisor of Elections in Juneau. This tele-
gram read in part:
Am mailing under postmark of May 29
declaration of candidacy for reptesentative-
this district. Do not have forms but am
following Section 15.25.030 . . .. If any
question please call me collect at 442-3193.
At the time this telegram was received in Ju-
neau. Schaeffer was in compliance with all the
requirements of title 15. chapter 25. Since
Schaeffer had access to title 15, chapter 25 of
the Alaska Statutes. there was nothing in the
text of. the telegram that would have alerted
election officials that Schaeffer was unaware o
the requirements of AS 15.13.060(c).
25. AS 15.13.020(I) provides:
The commission shall establish an office
which may be called a regional office. in each
case regarding the wisdom of adopting a
strict enforcement standurd for statutorily
imposed election deadlines is equally appli-
cable to the instant case. Absent a showing
that Schaeffer was misled as to the necessi-
ty of filing a campaign treasurer designa-
tion or as to the time for filing such desig-
nation, we concluded that no circumstances
were apparent in the record which justified
departure from the rule of strict enforce-
ment of statutory election filing deadl:nes.z.
(13) Schaeffer has also advanced the ar.
gument that the Lieutenant Governor is
estopped from employing the grounds of
untimely filing against him because of the
Lieutenant Governors failure to make des-
ignation of campaign treasurer forms avail-
able in Kotzebue on May 28, 1976 (the time
when Schaeffer filed his declaration of can-
didacy). Assuming arguendo that estoppel
is available against the Lieutenant Gover-
nor, we are of the view and so hold that the
Lieutenant Governor did in fact comply
with AS 15.13.020(j).n AS 15.13.020(j) re-
quires forms to be made available in a
regional office in each senate district.
Nome was designated center for such forms
pursuant to both AS 15.13.0206) and AS
15.10.110. Since Nome is the central office
for Senate District P. which encompasses
House District 21 and therefore Kotzebue,
the Lieutenant Governor complied with the
law by virtue of furnishing forms to the
Nome regional office.26
senate district in the state to keep on file for
public inspection copies of..all reports filed
with the commission by candidates for state-
wide office -and by candidates for legislative
office in that district: •however, where one
municipality contains more than one election
district, only one commission office shall be
established in that municipality. The region-
al office shall make all forms and pertinent
material available to candidates. All reports
shall be filed by candidates, groups and indi•
viduals directly with the commission's cen-
tral district office. The commission shall in-
sure that copies of all reports by statewide
and legislative candidates in each senate dis-
trict are forwarded promptly to that district
or regional office.
26. Since we reversed Judge Kalamarides on
another ground, we will not consider Schaef-
fer's next argument concerning the filing of a
financial disclosure statement.
L
L
1141 Schaeff
on the provisior
provides that
Commission sho
Bury to impleme
of the Admin6
44.62)." His p
promulgate reg
AS 15.13.03000
ing where forn
though it woul•
i;ave promulgat
think any regt.
implement the
established by .
It is for the
eluded that tl
Schaeffer shout
ballot and that
remanded to tht
al finding of C
could be made .
name should al
We think sor. '
order. It is Blip
in these consolit i
ka's election lu%
tices thereunder
revision in orde i
fairness, seeks:
clarity. Alaska i
structured as to
zens to seek elet .
cases, and in pa
fer, dramaticall. `
present electior. E
array of confusi
to proper filing
•islature. Ci%er
panse of Alas6
together with t. j
cation problems j
ture, the Lieu
Alaska Public
sarily a difficul
addressed.
7
'IL
is
..
,y
.l
_4
,in of adopting a
.nl for statutorily
s is equally appli-
Absent a showing
as to the neeessi-
reasurer designs -
filing such desig•
no circumstances
rd which justified
of strict enforce.
filing deadliness
advanced the ar-
rant Governor is
the grounds of
in because of the
lure to make des-
iurer forms avail-
18, 1976 (the time
eclaration of can-
ndo that estoppel
.ieutenant Gover-
d so hold that the
in fact comply
S 15.13.020(j) m-
e available in a
senate district.
er for such forms
13.020(j) and AS
the central office
*h encompasses
:refore Kotzebue,
-omplied with the
ng forms to the
to keep on file for
of all reports filed
9 andidates for state:
a later for lemslatow
- - 3 .Lwever, where on•'-
{ e then one elecur"-.
-ton office shall Ml
panty. The regi m-
rms and pertinent
+ :idates. All reports
�t •8. groups and mdi•
commission's cen-
_._fi,mmission shall in.
ports by statewide
in each senate dis•
;iI )fly to that district
•e Kalamandes on
•t consider tichaef.
ung the tiling of a
of.
BENEFIELD Y. STATE Alaska 91
Clio as, Alaska. $39 PRd 91
(141 Schaeffer's final argument is based
on the provision of AS 15.13.030(10) which Dennis C. BENEFIELD. Appellant,
provides that the Alik%ka Public Offices
Commission shall "adopt regulations neces- V.
sary to implement and clarify the provisions STATE of Alaska. Appellee.
of the Administrative Procedure Act (AS No. 2652.
44.62)." His point is that the failure to
promulgate regulations in accordance with Supreme Court of Alaska.
AS 15.13.030(10) prevented him from know•
ing where forms could be obtained. Al. Jan. 17. 1977.
though it would have been preferable to
have promulgated regulations, we do not
think any regulations were necessary to Defendant was convicted in the Superi-
implement the mandatory filing provisions or Court, Fourth Judicial District, Gerald J.
established by AS 15.13.060(e). Van Iloomissen, Judge at trial, and James
It is for the above reasons that we con- R. Blair, Judge at sentencing, of armed
eluded that the names of Kelley and robbery, and he appealed. The Supreme
Schaeffer should not appear on the primary Court, Boochever, C. J.. held that conversa-
ballot and that the Silides matter should be tion wherein police officers allegedly heard
remanded to the trial court for an addition- another individual state that he had been
al finding of fact before a determination told that defendant and codefendant had
could be made as to whether or not his committed robbery was violative of defend -
name should appear on the ballot. ant's right to confrontation and was inad-
"'e think some final observations are in miscible hearsay and, though it was error to
order. It is apparent from the issues raised admit testimony of officers in respect to
in these consolidated proceedings that Alas- conversation, error was harmless beyond a
k election laws and administrative prat- reasonable doubt where, in addition to sev-
tices thereunder are confusing and require
eral strong eyewitness identifications, de -
revision in order to achieve needed goals of
fendant freely admitted that he had spent
fairness, accessibility, simplification and
evening during time of crime with code -
clarity. Alaska's election laws should be so
fendant, who fit description of tall robber,
structured as to encourage its qualified citi.
and conversation allegedly overheard by of-
zens to seek election to public office. These
titers was cumulative of other testimony
cases, and in particular that of Leo Schaef-
that was properly admitted; further, sen-
fer, dramatically demonstrate that Alaska's
tence of lb years with five years suspended
present election laws at timea impose an
for four counts of armed robhery, though
array of confusing and conflicting obstacles
severe, was not so harsh as to indicate that
to proper filing for alection to Alaska's leg-
trial court was "clearly mistaken" when
islature. Given. the vtact geographical ex-
appropriate objectives an.4 serious potential
panse of Alaska •ind its ,';,erse cu.t.ur,s,
for personal injuty t', pubis ►sera Von -
together mth transpurta•"ion utri romamni-
sidered.
cation problems, the tus!: facing the leg;sla-
Affirmed.
ture, the Lieutenant Governor, and the
Alaska Public Offices Commission is neces-
sarily a difficult one, yet one that must be
addresxed.
1. Criminal Law 0-641.2
Right of defendant to preindictment
counsel was outweight4l by exigent circum-
O IIIINUYtlNS151tt1 I ffnees indicating that providing defendant
f with counsel would have unduly interfervil
with a prompt and purposeful invest igration.
In