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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Municipality of Anchorage v. Mjos (03/27/2008) sp-6245
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| MUNICIPALITY OF ANCHORAGE, | ) |
| and BARBARA GRUENSTEIN, | ) Supreme Court No. S- 13039 |
| Municipal Clerk, | ) |
| ) Superior Court No. 3AN- 08-05309 CI | |
| Appellants, | ) |
| ) O P I N I O N | |
| v. | ) |
| ) No. 6245 - March 27, 2008 | |
| PETER O. MJOS, M.D., | ) |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, William F. Morse, Judge.
Appearances: Robert P. Owens, Assistant
Municipal Attorney, Pamela Weiss, Assistant
Municipal Attorney, and James N. Reeves,
Municipal Attorney, Anchorage, for
Appellants. Bruce A. Bookman, Bookman &
Helm, LLP, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
PER CURIAM.
Dick Traini, a member of the Anchorage Assembly,
declared his candidacy for reelection on January 25, 2008. Dr.
Peter Mjos filed an action against the Municipality of Anchorage
and the Municipal Clerk for injunctive relief and declaratory
judgment that Traini was ineligible to run for reelection under
the three-consecutive-term limitation found in Anchorage
Municipal Charter 4.02(e). The superior court held that Traini
was ineligible to run for reelection under subsection 4.02(e)
based on its finding that a partial term counted as a term for
the purposes of the sections three-term limit. The Municipality
appealed. This court granted expedited consideration and heard
oral argument on March 27, 2008. We reverse for the following
reasons.
FACTS AND PROCEEDINGS
On April 16, 2001, Dick Traini was elected to the
Anchorage Assembly in a special mid-term election. He served for
a full year before being reelected for his first full three-year
term on April 2, 2002. Traini was then reelected again on April
18, 2005 for another three-year term.
Because Traini was considering running for another
term, Barbara Gruenstein, the Anchorage Municipal Clerk,
requested that an attorney give an opinion on the proper
interpretation of the assembly term limits described in Anchorage
Municipal Charter 4.02(e). This term limit provision was added
to the Municipal Charter by popular vote in 1990. Municipal
Charter 4.02 provides in part that:
Section 4.02. Term, membership and
qualifications.
(a) If all assemblymen are elected from
single member districts, the term of an
assemblyman is two years. If some or all
assemblymen are elected from multi-member
districts, the term of an assemblyman is
three years.
. . . .
(e) A person who has served on the assembly
for three consecutive terms may not be
reelected to the assembly until one full term
has intervened.
By letter dated January 7, 2008, the attorney gave his opinion
that serving on the Assembly for less than three years did not
count as a term toward the three-term limit.
On January 25, 2008, Traini declared his candidacy for
reelection to the Assembly. After Trainis declaration,
Gruenstein informed Traini that he was qualified to seek
reelection to the Anchorage Assembly for an additional term of
three years and that his name would appear on the ballot at the
municipal election to be held on April 1, 2008.
On February 28, 2008, Dr. Peter O. Mjos filed suit in
the superior court and sought a preliminary injunction pursuant
to Alaska Civil Rule 65(a) to require the municipal clerk to
remove Trainis name from the April 1, 2008 ballot. Mjos also
moved for declaratory judgment that Traini could not be elected
to the Assembly, regardless of whether his name remained on the
ballot. Mjos based his motion on the assertion that Trainis
initial election to the Anchorage Assembly for one year counted
toward the three-term limit imposed by Municipal Charter 4.02(e),
and thus Traini was not eligible to be reelected to the Anchorage
Assembly until one full term had intervened. The Municipality of
Anchorage and Gruenstein (collectively Municipality) responded
by filing a cross-motion for declaratory judgment that Municipal
Charter 4.02(e) limits assembly members to three consecutive full
terms.
Briefing on the subject was completed and oral
argument was heard before the superior court on March 17, 2008.
The superior court issued its final judgment from the bench and
in a written order that same day. The superior court found that
the word terms as used in Municipal Charter 4.02(e) includes a
partial term, and therefore held that Traini was not eligible for
reelection.
The Municipality appeals.
DISCUSSION
In our view there is a presumption in favor of
candidate eligibility. In cases where there is a statutory
ambiguity as to whether or not a candidate is eligible to run for
office, the statute should be construed in favor of eligibility,
so long as it may be reasonably so read.1 In light of this
presumption, the question here is whether the phrase three
consecutive terms, as used in subsection 4.02(e) can reasonably
be interpreted to refer only to full terms. We believe that this
question is close and that the interpretation adopted by the
superior court that terms in subsection 4.02(e) refers to both
full and partial terms is logical and more consistent with
established principles of statutory interpretation. Nonetheless,
we conclude that interpreting the language in question to refer
only to full terms is reasonably possible.
The argument in favor of the superior courts
interpretation focuses on the use of the word full in the phrase
until one full term has intervened. Use of the modifier full
here implies that the unmodified word terms as first used in
subsection 4.02(e) encompasses partial as well as full terms. If
the drafters of the provision thought that use of the word term
or terms meant only full terms, the modifier full would be
unnecessary surplusage.
Use of the modifier full in the second usage of term in
subsection 4.02(e) therefore suggests that because the modifier
is not employed in the first usage, terms there may be either
full or partial terms. But this does not necessarily mean that
the unmodified word terms in its first usage in subsection
4.02(e) cannot reasonably be read to refer only to full terms.
Subsection 4.02(a) states that the term of an assemblyman is
three years. Term here clearly refers to a full term, even
though the word full is not included. It is possible that a
drafter focusing on subsection 4.02(a) might think that term or
terms wherever used later would necessarily refer to full terms
and that the use of the modifier full was not necessary. Under
this interpretation, use of the modifier full to describe the
necessary interval that must pass before a three-term Assembly
member could run again might be explained as merely an exercise
in caution rather than an intended signal that the earlier usage
of the word terms was meant to include partial terms.
The principle disfavoring an interpretation of a
statute that fails to give meaning to a word or section is a
guideline only. In Homer Electric Assn v. Towsley,2 we observed,
after acknowledging this principle, that it does not apply in all
circumstances. We noted that [r]edundancy in legislative
drafting, as in other writing, is not uncommon.3 Here we think
that it is reasonably possible in light of the plain meaning of
the word term used in subsection 4.02(a) that a draftsman
intended terms used in the first part of subsection 4.02(e) to
have the same meaning as in subsection 4.02(a) notwithstanding
the contrary implication that arises from modifying term in the
second usage in subsection 4.02(e) with the word full.
Since we conclude that both parties interpretations of
subsection 4.02(e) are reasonably possible, we apply the
presumption in favor of candidate eligibility referred to above.
Accordingly, the judgment of the superior court is REVERSED, and
this case is REMANDED to the superior court for entry of judgment
in favor of the appellants.
_______________________________
1 Statutes dealing with the right of voters to
choose public officials and the right of
citizens to aspire to and hold public office,
should receive a liberal construction in
favor of assuring the right to exercise
freedom of choice in selecting public
officials and also the right to aspire to and
hold public office.
63C Am. Jur. 2d Public Officers and Employees 53 (1997) (citing
Cannon v. Gardner, 611 P.2d 1207, 1211 (Utah 1980)). We have
likewise expressed a preference in favor of eligibility for
elective office. OCallaghan v. State, 826 P.2d 1132, 1137
(Alaska 1992); Warwick v. State ex rel. Chance, 548 P.2d 384, 389
(Alaska 1976).
2 841 P.2d 1042, 1045 (Alaska 1992).
3 Id.
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