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O'Callaghan v. State of Alaska et al (3/6/92), 826 P 2d 1132
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NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to
the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order that corrections
may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
MIKE O'CALLAGHAN, )
)
)
Appellant, ) File No. S-4227
)
v. ) 3AN 90 08135 CI
)
STATE OF ALASKA, LIEUTENANT )
GOVERNOR STEVE MC ALPINE, in his ) O P I N I O N
his official capacity of )
Director of Elections, JOHN B. )
("JACK") COGHILL, )
)
Appellees. ) [No. 3818 - March 6, 1992]
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Mike O'Callaghan, pro per,
Anchorage, for Appellant. Edgar Paul Boyko,
Boyko, Breeze & Flansburg, Anchorage, and
Marjorie L. Odland, Assistant Attorney
General and Charles E. Cole, Attorney
General, Juneau, for Appellees.
Before: Rabinowitz, Chief Justice, Burke,
Matthews, Compton and Moore, Justices.
BURKE, Justice.
Mike O'Callaghan appeals the superior court's grant of
summary judgment in favor of the Director of Elections and Jack
Coghill, arguing that Coghill was a "disqualified" candidate
under AS 15.25.110 and that the Director of Elections unlawfully
placed his name on the 1990 general election ballot. The single
issue which we address is whether AS 15.25.110 prohibits a
person's name from appearing on the general election ballot when
that person withdraws as a candidate for one political party to
accept another party's nominating petition. We conclude that AS
15.25.110 does not prohibit a candidate who withdraws from having
his or her name placed on the ballot as the candidate for a
different political party. Consequently we affirm the superior
court's grant of summary judgment.
I
In the 1990 state primary election, Jack Coghill
sought and won nomination as the Republican party's lieutenant
governor candidate. John Lindauer and Jerry Ward won the primary
election nominations as the Alaska Independence Party's
(hereafter AIP) governor and lieutenant governor candidates.
Mike O'Callaghan was also a candidate for governor on the
Political Party ticket.
Initially Coghill joined Arliss Sturgulewski, the
Republican governor candidate, to form the Republican party
ticket. However, on September 19, 1990, just before the
statutory 48-day deadline, Coghill withdrew as the Republican
candidate and joined Walter Hickel to form the new ticket for the
AIP. Earlier that same day, Lindauer and Ward had withdrawn as
the AIP candidates, apparently to create a vacancy so that the
AIP central committee could nominate Hickel and Coghill by party
petition.
On September 28, 1990, O'Callaghan filed a complaint
against the Director of Elections, then Lt. Governor Steve
McAlpine, seeking a temporary restraining order to prohibit
McAlpine from printing Coghill's name on the general election
ballot as the AIP's lieutenant governor candidate. Judge
Michalski denied this request. Coghill then moved to intervene
in the case, and his motion was granted. O'Callaghan petitioned
the court for a hearing on the proper interpretation of AS
15.25.110. The trial court chose to treat the petition as a
motion for summary judgment. Coghill and the Director cross-moved
for summary judgment.
Argument at the summary judgment hearing focused
exclusively on the proper interpretation of AS 15.25.110. The
court denied O'Callaghan's summary judgment motion, but granted
the cross-motion filed by Coghill and the Director after
concluding that AS 15.25.110 did not bar Coghill from appearing
on the ballot. This appeal followed.1 While the appeal was
pending, Jack Coghill and Walter Hickel's names were placed on
the ballot, and they were elected to office in the November 6,
1990 general election.
II
O'Callaghan argues that a candidate who has "withdrawn"
his name from one party's nomination is "disqualified"under AS
15.25.110 and cannot have his name placed on the general election
ballot as the candidate of any party. The statute provides:
If a candidate nominated at the primary
election dies, withdraws, resigns, becomes
disqualified from holding the office for
which the candidate is nominated, or is
certified as being incapacitated in the
manner prescribed by this section after the
primary election and 48 days or more before
the general election, the vacancy may be
filled by party petition. The central
committee of any political party or any party
district committee may certify as being
incapacitated any candidate nominated by
their respective party by presenting to the
director a sworn statement made by a panel of
three licensed physicians, not more than two
of whom may be of the same political party,
that the candidate is physically or mentally
incapacitated to an extent that would in the
panel's judgment prevent the candidate from
active service during the term of office if
elected. The director shall place the name
of the person nominated by party petition on
the general election ballot. The name of a
candidate disqualified under this section may
not appear on the general election ballot.
AS 15.25.110 (1991 Supp.) (emphasis added). O'Callaghan
maintains that a candidate is "disqualified under this section"
when he or she "dies, withdraws, resigns, becomes disqualified
from holding the office for which the candidate is nominated, or
is certified as being incapacitated." Id. Under his
interpretation, the Director of Elections is prohibited from
placing a candidate's name on the ballot as a candidate for any
office if the candidate creates a vacancy under the statute.
This question is purely a matter of statutory
construction.2 The goal of statutory construction is to give
effect to the legislature's intent, with due regard for the
meaning the statutory language conveys to others. Tesoro Alaska
Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 905 (Alaska
1987). We will construe the words in a statute in accordance
with their common usage unless they have acquired a peculiar
meaning through statutory definition or judicial construction.
Wilson v. Municipality of Anchorage, 669 P.2d 569, 571-72 (Alaska
1983); see also AS 01.10.040 (Supp. 1991).
The words "qualifications"and "disqualified"are used
in several places in the election code. See AS 15.05.010, AS
15.05.011, AS 15.15.210, AS 15.25.056, and AS 15.25.110. Except
for the challenged usage in AS 15.25.110, it is perfectly
apparent that the words are used to refer to the statutory or
constitutional qualifications for voters or candidates; namely
age, citizenship, and residency.3 The uniform usage of the term
"disqualified"throughout the act (up to and including the first
sentence of AS 15.25.110) creates a strong presumption that the
legislature was using the word in the same way in the last
sentence of the section.4 Under this interpretation, Coghill,
who withdrew but retained the qualifications of office, was
properly placed on the general election ballot.
However, O'Callaghan contends that the legislature
intended to give "disqualified"a different meaning in the last
sentence of AS 15.25.110. He argues that the sentence
specifically refers to disqualification "under this section"
whereas the other uses of the term do not. He also points out
that the last sentence was added as part of the 1962 amendment
along with the language concerning incapacitation. The precursor
to AS 15.25.110 was the 1960 session law, 5.11 which stated in
pertinent part:
If any candidate nominated at the party
primary nomination dies, withdraws, or
becomes disqualified from holding office for
which he is nominated after the primary
nomination and 10 days or more before the
general election, the vacancy may be filled
by party petition. The secretary of state
shall place the name of the person nominated
by party petition on the general election
ballot or if the general election ballot has
been prepared, the secretary of state . . .
shall prepare, print, and distribute a
sufficient number of gummed labels or
stickers bearing the name of the candidate to
fill the vacancy . . . with instructions that
the election judges shall place one of the
stickers or labels on the appropriate place
on each ballot before the ballot is handed to
the voter.
Ch. 83, SLA 1960. A 1962 amendment added the underlined portions
to 5.11:
If any candidate nominated at the party
primary nomination dies, withdraws, resigns,
becomes disqualified from holding office for
which he is nominated, or is certified as
being incapacitated in the manner prescribed
by this section after the primary election
and 10 days or more before the general
election, the vacancy may be filled by party
petition. The central committee of any
political party or any party district
committee may certify as being incapacitated
any candidate nominated by their respective
party by presenting to the secretary of state
a sworn statement made by a panel of three
licensed physicians, not more than two of
whom shall be of the same political party,
that the candidate is physically or mentally
incapacitated to an extent that would in his
judgment prevent the candidate from active
service during the term of office if elected.
. . . before the ballot is handed to the
voter. The name of any candidate
disqualified under the provisions of this
section shall not appear on the general
election ballot.
Am. ch. 125, 18, SLA 1962. O'Callaghan argues that
"disqualified under the provisions of this section" must have
been intended in its broadest sense because "provisions" is
plural not singular.
O'Callaghan's argument has some merit since, under our
rules of statutory construction, we presume that the legislature
has not used superfluous words. See City of Homer v. Gangl, 650
P.2d 396, 399 (Alaska 1982). The 1962 amendment is troubling and
makes the subsection ambiguous.5 We agree with O'Callaghan that
the legislature intended "disqualified under this section" to
broadly include all five means of creating a vacancy. However,
we conclude that this sentence is merely an instruction to the
Director to eliminate from the ballot the name of a candidate who
no longer desires or is no longer qualified to seek office as a
candidate of the party for which he or she was nominated. This
type of instruction occurs throughout the election code and is
designed to delete, if time permits, the names of nonviable
candidates from the ballot so that they will not distract voters
or draw votes from viable candidates. See AS 15.25.055; AS
15.25.200; see also AS 15.25.056. The last two sentences of AS
15.25.110, read together, support this interpretation:
The director shall place the name of the
person nominated by party petition on the
general election ballot. The name of a
candidate disqualified under this section may
not appear on the general election ballot.
Thus, the names of Ward and Lindauer, who withdrew as AIP
candidates, may not appear on the ballot as viable candidates of
the AIP, and Coghill's name may not appear on the ballot as a
candidate of the Republican party. However, it is not necessary
to conclude that these candidates could not appear on the ballot
as candidates of another party if they accepted that party's
nominating petition. Jack Coghill did just that.
We consider this to be the most reasonable
interpretation of AS 15.25.110 because it prevents a candidate
from appearing on the ballot as the candidate of two different
political parties.6 This construction also protects against two
different candidates' names appearing on the ballot as the
candidate for the same political party. We have previously
stated that constitutional provisions should be given a
reasonable and practical interpretation in accordance with common
sense. Kochutin v. State, 739 P.2d 170, 171 (Alaska 1987). This
sentiment is equally applicable to statutory construction.
Accordingly, we hold that, under AS 15.25.110, a candidate
nominated at the primary election who "dies, withdraws, resigns,
becomes disqualified from holding office for which the candidate
is nominated, or is certified as being incapacitated" is
prohibited from having his or her name placed on the general
election ballot as the candidate of the party for which he or she
was nominated at the primary election.7
Despite O'Callaghan's claims to the contrary, there is
nothing in the legislative materials to suggest that the
legislature meant to prevent a candidate who withdraws after the
primary election from being placed on the ballot as the candidate
of another party.8 The focus of the subsection is to outline the
procedures for filling vacancies. We have adopted an
interpretation of the statute which best serves that purpose.
See Commercial Fisheries Entry Comm'n v. Apokedak, 680 P.2d 486,
489-90 (Alaska 1984) (in ascertaining the meaning of a statute,
the primary guide is the language used, construed in light of the
purpose of the enactment).
It is quite likely that the legislature never
contemplated the turn of events that occurred in the 1990
election. Therefore it is not surprising that the election code
fails to clearly address the policy concerns raised by
O'Callaghan during oral argument before this court.9 However,
given our clear policy favoring open access to the ballot, it
would be incongruous for us to now stretch to find a prohibition
against Coghill's candidacy when the election code does not
clearly prohibit it. See Vogler v. Miller, 660 P.2d 1192 (Alaska
1983); Warwick v. State ex rel. Chance, 548 P.2d 384 (Alaska
1976) (restrictions on those who may run for office impinge on
the right to vote).
The superior court's order is AFFIRMED.
_______________________________
1. O'Callaghan argues for the first time in his appellant
brief that Coghill and Hickel's names should not have been placed
on the ballot because they were not members of the AIP and did
not pay a $100.00 filing fee when they accepted nomination under
the AIP's party petition. These arguments were not raised at the
trial level nor were they included in the points on appeal. We
will not review new arguments or points of error that were
neither raised before the trial court nor included in the points
on appeal unless the issue presented is "1) not dependent on any
new or controverted facts; 2) [is] closely related to the
appellant's trial court arguments; and 3) could have been gleaned
from the pleadings, or if failure to address the issue would
propagate plain error." Sea Lion Corp. v. Air Logistics of
Alaska, 787 P.2d 109, 115 (Alaska 1990).
Although these new arguments are not dependent on any
controverted facts, they could not have been gleaned from
O'Callaghan's complaint nor were they closely related to the
statutory construction issue argued below. O'Callaghan never
questioned the procedure Coghill employed to fill the AIP
vacancy. At one point during the hearing, he stated:
I have no problem with Mr. Coghill
filing to fill the vacancy of the AIP. What I
have the problem with is the Division of
Elections putting his name on the ballot by
virtue of that petition.
The filing fee and the party affiliation arguments are clearly a
new and different attack on Coghill's candidacy. O'Callaghan also
attacks the legitimacy of Gov. Hickel's candidacy, a party who is
not involved in this appeal. Basic due process considerations
mandate that we not entertain these arguments for the first time
on appeal.
2. We interpret this statute using our independent
judgment. Wien Air Alaska, Inc. v. Dep't of Revenue, 647 P.2d
1087, 1090 (Alaska 1982) ("As repeatedly noted by our court, it
is within the court's special competency to independently
interpret a statute.").
3. Alaska Const. art. III, 2 provides the governor's
qualifications. "The governor shall be at least thirty years of
age and a qualified voter of the State. He shall have been a
resident of Alaska at least seven years immediately preceding his
filing for office, and he shall have been a citizen of the United
States for at least seven years." Art. III, 7 provides that
the lieutenant governor "shall have the same qualifications as
the governor."
4. See Chugach Natives, Inc. v. Doyon, Ltd., 588 F.2d 723
(9th. Cir. 1978) (when the same words or phrases are used in
different parts of a statute they are presumed to carry the same
meaning throughout). We adopted a similar rule in Ebell v.
Seapac Fisheries, Inc., 692 P.2d 956 (Alaska 1984). "When a
phrase has acquired a generally understood meaning, it is
presumed, in the absence of circumstances pointing to a different
conclusion, that the legislature intends to convey that meaning."
Id. at 958.
5. What makes AS 15.25.110 so ambiguous is that the last
sentence refers to a "candidate disqualified under this section"
but the preceding sentences do not clearly define how or when a
candidate is to be considered "disqualified." In fact, the
section does not obviously disqualify any candidate. The term
"disqualify"means "[t]o divest or deprive of qualifications; to
incapacitate." Black's Law Dictionary 472 (6th ed. 1990). The
first sentence of AS 15.25.110 merely lists the five ways a
vacancy may be created which may, in turn, be filled by party
petition. The second sentence, however, does involve what could
be considered a disqualifying process in that an outside body is
stripping a candidate of the opportunity to participate in the
election. Therefore it is possible that the phrase "disqualified
under the provisions of this section"may have been an ill chosen
reference to the incapacitation provisions that were added in the
same 1962 amendment. However, for the reasons that follow, we do
not adopt this interpretation.
6. Our interpretation is consistent with the legislature's
recently expressed willingness to permit candidates to change
parties so long as dual candidacies are prevented. The
legislature amended the election code in 1989. AS
15.25.030(a)(14) formerly read:
The declaration shall state in substance
. . . that the person is not a candidate for
any other office to be voted on at the
primary or general election and that the
candidate has not filed another nominating
petition or declaration of candidacy for the
office for which this [declaration/petition]
is filed.
The 1989 amendment changed this section to read:
The declaration shall state in substance
. . . that the person is not a candidate for
any other office to be voted on at the
primary or general election and that the
person is not a candidate for this office
under any other declaration of candidacy or
nominating petition.
AS 15.25.030(a)(14) (Supp. 1991). AS 15.25.180(a)(14), a related
provision, was similarly amended. This change was explained by
Sen. Pourchot, the amendment's sponsor:
Sen. Pourchot explained that some
candidates switch parties and then file for
the same office. Taken literally, no
candidate could withdraw or change his
declaration even before the cutoff date.
This section rewords the provision to clarify
that a candidate may have filed previous
declaration of candidacy for the same office,
but there is not a dual filing. Sen.
Pourchot noted that this was done to take
into account the situation where a candidate
files by a petition under one party and then
withdraws and files by petition under a
different party. The effect of this
provision is to allow people to legitimately
withdraw from an office or switch parties and
refile for the same office, but not allow
people to file simultaneous declarations for
the same office.
House Judiciary Committee, Minutes of Meeting held April 19,
1989.
The Senator's comments certainly indicate that the
legislature was unconcerned with candidates doing exactly what
Jack Coghill did, at least during the period before the primary.
Each subsection of the election code should be construed in light
of every other subsection to create a harmonious whole. Anchorage
v. Scavenius, 539 P.2d 1169, 1174 (Alaska 1975). Therefore the
1989 amendment supports our conclusion that dual candidacies are
prohibited by AS 15.25.110, but that the statute does not
prohibit a candidate from withdrawing as the nominee of one party
to accept another party's nominating petition.
7. Obviously a candidate who dies, becomes disqualified or
is found to be incapable of holding office will not be placed on
the ballot as a candidate of another party. Therefore,
practically speaking, only withdrawal or resignation will permit
a candidate to seek office under a new political party after the
primary election.
8. Given the ambiguity of AS 15.25.110, it would be most
helpful to discover a clear historical record of the
legislature's purpose in adding this sentence to the subsection.
See Alaska Public Emp. Ass'n v. State, 525 P.2d 12, 14 (Alaska
1974) (when statute ambiguous, it is necessary to examine
legislative history of the statute as well as its policy and
purpose). Unfortunately, there is virtually no existing
legislative history on either the 1960 or 1962 versions of
5.11, the predecessor to AS 15.25.110. According to a 1960
memorandum, the only extant history of the 1960 enactment, the
section was originally designed to establish a procedure for
filling a vacancy caused by death, withdrawal, or
disqualification by party petition. See Alaska Legislative
Council, Memorandum to Members of Legislature (January 20, 1960).
There are no existing legislative materials for the crucial 1962
amendment.
9. Among other things, O'Callaghan hypothesized that two
lieutenant governor candidates could conspire to steal the
election by withdrawing at the last moment from their respective
tickets (leaving their running mates statutorily ineligible to
seek the governor's office) and joining on a new political party
ticket as the sole viable candidates. While this is a legitimate
policy concern, we are convinced that other statutory and
judicial remedies are available to protect the electorate against
such an eventuality.
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