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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Studley v. Alaska Public Offices Commission (1/27/2017) sp-7148

Studley v. Alaska Public Offices Commission (1/27/2017) sp-7148

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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, email  



                      THE SUPREME COURT OF THE STATE OF ALASKA                                       

JAMES  M.  STUDLEY,                                                  )  

                                                                     )     Supreme  Court  No.  S-15757  

                                Appellant,                           )  


                                                                     )     Superior Court No.  1JU-13-00669 CI  

           v.                                                        )  


                                                                     )     O P I N I O N  


ALASKA PUBLIC OFFICES                                                )  

COMMISSION,                                                          )  


                                                                     )     No. 7148 - January 27, 2017  

                                Appellee.                            )  




                          peal from the Superior Court of the State of Alaska, First  


                     Judicial District, Juneau, Philip M. Pallenberg, Judge.  


                     Appearances:             Fred  W.  Triem,  Petersburg,  for Appellant.  


                     Joanne M. Grace, Assistant Attorney General, Anchorage,  


                     Janell M. Hafner, Assistant Attorney General, and Craig W.  


                     Richards, Attorney General, Juneau, for Appellee.  


                     Before: Stowers, Chief Justice, Fabe, Winfree, Maassen, and  


                     Bolger, Justices.  


                     WINFREE, Justice.  



                     A self-employed real estate broker ran as a candidate for local elective  


office.       The  broker  sought  a  blanket  exemption  from Alaska's  financial  disclosure  


requirements to avoid reporting his clients' identities and the income earned from them.  


The Alaska Public Offices Commission denied the broker's request and assessed a $175  

----------------------- Page 2-----------------------

civil penalty for his failure to comply with the candidate reporting requirements.                                                                                                                                                                                           On  

appeal the superior court upheld the Commission's ruling.                                                                                                                                      The broker now appeals the                                                       

superior court's decision, contending the disclosure requirements violate his duty to                                                                                                                                                                                              

maintain client confidentiality, infringe his clients' privacy rights under the Alaska                                                                                                                                                                            

Constitution, and impair several personal constitutional rights.                                                                                                                                             We affirm the superior                            

court's decision upholding the Commission's ruling.                                                                                                    

II.                   FACTS AND PROCEEDINGS                           

                                            In 2012 James Studley, a real estate broker operating through a self-owned                                                                                                                             

corporation, ran for a borough assembly seat.                                                                                                         As a candidate for public office Studley                                                                   

was subject to Alaska's financial disclosure laws, administered and enforced by the                                                                                                                                                                                            

Alaska Public Offices Commission.                                                                                      He was required to file a Public Official Financial                                                                                  

Disclosure Statement reporting                                                                            the source of any                                              income exceeding $1,000                                                                   earned  


during the prior calendar year and the nature of the services rendered.                                                                                                                                                                                          

                                                                                                                                                                                                                                    Because Studley  


owned the corporation through which he operated, he was self-employed for purposes  


of the disclosure laws and so was required to report his actual client names as the income  



                                            Studley submitted his calendar year 2011 disclosure statement in July 2012  


and amended it three times.   On the line for identifying clients Studley provided no  


details,  but  he  made  notes  essentially  stating  that  he  was  prohibited  by  law  from  


disclosing the information.  Under a general entry he titled "Real Estate Sales" Studley  


reported "$20,000 - $50,000" in income.   During this process Studley contacted the  


Commission and directed it to four real estate statutes that he said should provide "an  


                      1                    See  AS  39.50.030(b)(1)(A)-(F).   

                      2                    See  AS  39.50.200(a)(10).  

                                                                                                                                         -2-                                                                                                                                            7148  

----------------------- Page 3-----------------------


exemption from disclosing confidential financial information."                                                                                                                Studley stated: "These                     

statutes specifically prohibit release of any financial information regarding my clients or                                                                                                                                            

customers without prior written approval or at the direction of the judicial system by                                                                                                                                               

court order."                         

                                     Campaign disclosure regulations permit a candidate to request a reporting                                                                                                    

                                                                   4       The  Commission  asked  Studley  to  provide  the  required  

exemption   or   a   waiver.                                                                                                                                                                                        

information for making an exemption request, including the name, mailing address, and  


email address of the person making the request; the provision under which the exemption  


was sought; the reasons for requesting the exemption; and a certification that all facts  


given were true.5  Studley responded by providing some of the requested information,  

including  his  name,  mailing  address,  email  address,  and  a  certification  that  the  


information was true and accurate.  Citing "AS 08-4145," he gave as the reason for his  


request that the statute does "not allow any financial disclosure or information that would  



be considered financially harmful to a client."    


                  3                  The four statutes he cited were:                                                       AS 08.88.071, outlining the Alaska Real                                                             

Estate   Commission's   duties   and   powers   and   grounds   for   disciplinary   sanctions;  

AS 08.88.081, providing, in its entirety, that "[t]he commission shall adopt regulations                                                                                                                      

necessary to carry out the purposes of this chapter"; AS 08.88.171, listing real estate                                                                                                                                     

licensee eligibility standards; and AS 08.88.685, requiring real estate brokers to adopt                                               

various written policies and procedures.                                      

                  4                  2 Alaska Administrative Code (AAC) 50.821 (2012).  


                  5                 See 2 AAC 50.821(a)(1)-(9).  


                  6                  It was subsequently clarified that "08-4145" is not a statute number, but  


rather the designation on an Alaska Real Estate Commission pamphlet that real estate  


licensees are required to present to customers and clients outlining a licensee's duties to  


those consumers.  The pamphlet explains that a licensee will "[n]ot disclose confidential  


information,  even  after  the  relationship  ends,  from  or  about  you  without  written  



                                                                                                                  -3-                                                                                                          7148

----------------------- Page 4-----------------------

                                                                      In a subsequent exchange Studley provided the Commission a copy of the                                                                                                                                                                                                                                                                                                       

Alaska Real Estate Commission pamphlet he had referred to as "AS 08-4145" and stated                                                                                                                                                                                                                                                                                                                                                 

that   no  information   about   a   client   may   be   disclosed   without   court   order.     Studley  

provided two hypothetical examples to illustrate how disclosing the existence or details                                                                                                                                                                                                                                                                                                                                         

 of a broker-client relationship might harm a client.                                                                                                                                                                                                                         Studley's first example discussed                                                                                                 

how a buyer might be able to infer that a couple is divorcing from client disclosures and                                                                                                                                                                                                                                                                                                                                                       

use that as negotiating leverage in a purchase; his second outlined privacy concerns for                                                                                                                                                                                                                                                                                                                                                            

 a person selling real property while filing for bankruptcy.                                                                                                                                                                                                                                                      He did not assert that these   

were actual client situations he faced.                                                                                                                                                               

                                                                      Later that day Studley sent the Commission another response asserting that                                                                                                                                                                                                                                                                                                

he was "not required" to file the disclosures because "I receive my money from my                                                                                                                                                                                                                                                                                                                                                                

various owned companies and I have listed both of my companies that pay me my                                                                                                                                                                                                                                                                                                                                                                    

income."   He explained that:                                                                                                                          "all of my clients are with contracts to my companies and                                                                                                                                                                                                                                

not to me personally"; "Alaska real estate law requires a court order or subpoena before                                                                                                                                                                                                                                                                                                                                          

I (a Broker) can release confidential information"; and "the legal system seems to weigh                                                                                                                                                                                                                                                                                                                                           

towards protecting the personal rights of all Alaskans['] financial data."                                                                                                                                                                                                                                                                                                                 

                                                                      Thefollowing                                                              week Commissionstaffdenied                                                                                                                                    Studley'sexemption                                                                                          request.   

The Commission explained that the four statutes Studley cited "do not provide any                                                                                                                                                                                                                                                                                                                                                             

 statutory reason that would exempt you as a candidate[] from disclosing real estate                                                                                                                                                                                                                                                                                                                                                

transactions that provided you income." Noting that "the value of real estate transactions                                                                                                                                                                                                                                                                                                           

is a public process and your involvement and [c]ommissions from this public process                                                                                                                                                                                                                                                                                                                                        

                                   6                                  (...continued)  


permission, except under a subpoena or court order."  The language from this pamphlet  


mirrors that of AS 08.88.620(4), stating that real estate licensees may "not disclos[e]  


 confidential information from or about the represented person without written consent,  


 except under a subpoena or another court order, even after termination of the licensee's  


relationship with the represented person."  

                                                                                                                                                                                                                           -4-                                                                                                                                                                                                             7148

----------------------- Page 5-----------------------

 [are] ascertainable already from other sources," the Commission concluded that the                                                                                                                                                                                                                        

transactions did not "fall under a constitutionally protected zone of privacy."                                                                                                                                                                                                                       The  

Commission observed that "the public's right to                                                                                                                                          know the sources of your income                                                                    

outweigh[s] any reason you may have to keep these matters private."                                                                                                                                                                                          The denial also                             

informed Studley that he could appeal the staff's decision directly to the Commission's                                                                                                                                                                             

appointed members within 30 days.                                                                                                    

                                                 Studley took no action to appeal. The Commission then sent him a "Notice                                                                                                                                                                

of   Penalty"   informing   him   that  civil   penalties   are   assessed   for   filing   incomplete  

disclosure statements, and that he was subject to fines accrued daily from the decision                                                                                                              

date until the election date.  The penalty was $10 per day, for a total of $350.  Studley   

was given 30 days to pay the penalty or appeal to the Commission.                                                                                                                                                                                   

                                                 Studley appealed the penalty, requesting a hearing and stating that he was                                                                                                                                                                               

"not allowed" to comply with the disclosure laws "on reporting contractual agreements."                                                                                                                                                                                                                                    

At the hearing the commissioners located a real estate statute defining "confidential                                                                                                                                                                                  

                                               7 and tooknoteofStudley's arguments thattherequired disclosures violated  


his clients' constitutional privacy rights.  


                                                The Commission later issued a "Final Order" ruling that none of the real  


estate statutes Studley cited prohibited the required disclosures. The Commission found  


that Studley "violated the reporting statute by not filing a complete [disclosure] report,"  


but reduced his civil penalty to $175 because he was an "inexperienced filer." The order  


informed Studley that he could request reconsideration within 15 days and that he could  


appeal to the superior court within 30 days.  




                                                AS 08.88.695(2);  see infra  Section IV.B.3 (discussing applicability of  


AS 08.88.695(2)).  

                                                                                                                                                       -5-                                                                                                                                                           7148  

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                                  Studley requested reconsideration.                                                      The Commission addressed Studley's                                     

request at a subsequent meeting, ultimately denying it for failure to provide a basis for                                                                                                                       


                                  Studley had not been represented by an attorney during his Commission                                                                                 

interactions; he retained counsel and filed an appeal with the superior court after the                                                                                                                         

Commission denied his request for reconsideration.                                                                               Studley cited the real estate statute                                  

establishing a licensee's duty to maintain a client's confidential information learned                                                                                                               

                                                      9 and the statutory "confidential information" definition examined  

during representation,                                                                                                                                                                          

at his Commission hearing.10                                               Studley also asserted that the required disclosures would  


violate his clients' constitutional privacy rights and would infringe on several of his own  


constitutional rights.  


                                 The superior court concluded that Studley "has not shown that he was  


called upon to disclose any confidential information" and that he "never made any  


specific assertion that any particular client's information should be kept confidential."  


The court rejected Studley's constitutional claims, explaining that "Studley did not  


demonstrate . . . that release of information about his clients would violate any of his  


clients' privacy rights [or that] his rights under any of the[ ] [asserted] constitutional  


provisions were violated."  Observing that Studley "provided no basis upon which [the  


Commission]   could   have  granted   him  an   exemption,"  the  court   affirmed   the  


Commission's decision.  


                 8               See   2  AAC   50.891(g)   ("The   commission   may   reconsider   an   order   as  

provided in AS 44.62.540. . . . A request for reconsideration must state specific grounds                                                                                                           

for reconsideration.").   

                 9               AS 08.88.620(4).  


                 10              AS 08.88.695(2).  


                                                                                                        -6-                                                                                                7148

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                                       Studley now appeals the superior court's decision with two "principal                                                                                                                

questions" for our review.                                                   First, do "real estate regulations that require a broker                                                                                                   not  to  

release confidential client information conflict with the [Commission's] regulations that                                                                                                                                                      

demand this disclosure by a broker who runs for public office?" (Emphasis in original.)                                                                                                                                                                      

Second, was Studley's "constitutional right of candidacy improperly conditioned upon                                                                                                                                                       

relinquishment of his constitutional right of privacy and the rights of privacy of his                                                                                                                                                           

clients[, or u]pon possible loss of his license and of his profession?"                                                                                          

III.                STANDARD OF REVIEW                                   

                                       "When the superior court has acted as an intermediate court of appeal, we                                                                                                                                  

review the merits of the administrative agency's decision                                                                                                                      without deference                                       to   the  

superior court's decision."11  "[W]e give deference to [an] agency's interpretation of a  


statute] so long as it is reasonable, when the interpretation at issue implicates agency  


expertise or the determination of fundamental policies within the scope of the agency's  

                                                            12      But we will substitute our own judgment for questions of law  


statutory functions." 

"when the statutory interpretation does not involve agency expertise, or the agency's  


specialized knowledge and experience would not be particularly probative."13   "In such  


cases we 'adopt the rule of law that is most persuasive in light of precedent, reason, and  


                   11                  Tolbert v.                     Alascom,   Inc.,   973   P.2d   603,  606-07  (Alaska 1999)                                                                                                     (citing  

Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co.                                                                                                   , 746 P.2d 896, 903 (Alaska 1987)).                                             

                   12                 Marathon Oil co. v. State, Dep't of Nat. Res., 254 P.3d 1078, 1082 (Alaska  


2011) (citing Matanuska-Susitna Borough v. Hammond, 726 P.2d 166, 175 (Alaska  



                   13                 Lakloey, Inc. v. Univ. of Alaska, 141 P.3d 317, 320 (Alaska 2006) (quoting  


Gunderson v. Univ. of Alaska, Fairbanks, 922 P.2d 229, 233 (Alaska 1996)).  


                                                                                                                         -7-                                                                                                                7148

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policy.' "            Questions of constitutional interpretation are also reviewed de novo under                                                     

the substitution of judgment standard.                                15  

IV.	        DISCUSSION  


            A.	          Candidates Must Report Sources And Amounts Of Income But May  


                         Seek An Exemption When Privacy Concerns Arise.  


                         1.	         Disclosure requirements  


                         Under  Alaska law a candidate for  elective office, including municipal  



office, must file a statement disclosing "income sources and business interests." 


municipal  candidate  must  disclose  this  information  when  declaring  candidacy  or  



submitting other required filings.                              The statement must provide "sources of income over  


$1,000" for the preceding calendar year, including "each source of the income" and the  


corresponding "amount of income" earned from the source, which "may be stated in a  



range rather than as an exact amount."                                    A candidate is considered self-employed when  


the  candidate  owns  a  controlling  interest  in  an  income-deriving  entity,  such  as  a  



partnership or a corporation.                               A self-employed candidate's source of income is the  

            14          Alyeska Pipeline Serv. Co. v. DeShong                                  , 77 P.3d 1227, 1231 (Alaska 2003)                    

(quoting  Guin v. Ha                 , 591 P.2d 1281, 1284 n.6 (Alaska 1979)).                        

            15          Brandal v. State, Commercial Fisheries Entry Comm'n, 128 P.3d 732, 735  


(Alaska 2006); see also Beeson v. City of Palmer, 370 P.3d 1084, 1088 (Alaska 2016)  


("We review questions of constitutional law de novo." (citing Anchorage v. Sandberg ,  


861 P.2d 554, 557 (Alaska 1993))).  


            16           AS 39.50.020(a).  


            17          Id.  

            18           AS 39.50.030(b)(1); 2 AAC 50.685(c).  


            19           AS 39.50.200(10).  


                                                                             -8-	                                                                     7148

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entity's individual "client or customer."                                        Disclosure statements are available to the                             



                         2.           Disclosure exemptions  


                         A candidate required to file a disclosure statement may request exemptions  



from reporting.                   Among other items, a candidate may request to keep "the name of an  



individual whowas asourceofincome"or "theamount of income" earned confidential. 


"The person requesting any exemption has the burden of proving each fact necessary to  



show that an exemption . . . is applicable."                                        A candidate may seek an exemption under  


2 AAC 50.775(c)(1) when "prohibited by law . . . from reporting" the information, or  


under 2 AAC 50.775(c)(2) when disclosure "would violate rights of the source under  



                                                                               Although the superior courtbased its decision  

stateor federal statutes or constitutions." 

                                             26 both parties relied on these two provisions and we accept them  



on a different provision, 

as the relevant authorities for this appeal.  


             20          Id.  

             21          AS 39.50.050(c);                  see also        2 AAC 50.801(a) (providing for inspection and                                     

copies of reports, records, and other information in Commission's possession).                                                 

             22          2  AAC  50.775(a).  

             23          Id.  

             24          Id.  

             25          2  AAC  50.775(c)(1),  (2).  

             26          See  2  AAC   50.775(e)   (providing   for  exemption  requests  when  "state   or  

federal  law  or  court  order  requires  the  .  .  .  information  to  be  kept  confidential").  

                                                                               -9-                                                                        7148

----------------------- Page 10-----------------------

                       B.                      Studley Did Not Demonstrate He Was Entitled To An Exemption.                                                                                                                                             

                                               1.	                    We regard Studley's assertions as arguments for an exemption.                                                                                                                                  

                                               Studley argues that candidate disclosure requirements "compete" with his                                                                                                                                                                             

statutory duty as a real estate agent to keep client information confidential, and that                                                                                                                                                                                        

reporting the information would violate his clients' privacy rights under the Alaska                                                                                                                                                                                                

Constitution.  Studley claims that his right to stand for elective office was conditioned  

upon the surrender of his right to practice as a real estate broker and that his equal                                                                                                                                                                                                   

protection rights were violated.                                                                                  He also contends he does not need to show that his                                                                                                                               

clients'   information   is   confidential   on   a   "case-by-case"   basis.     We   consider   these  

contentions together as an argument that Studley was entitled to a financial disclosure   

reporting exemption.   

                                               2.	                    Exemption requests must be supported by facts; hypothetical                                                                                                                              

                                                                      scenarios are insufficient.                       

                                               As a candidate requesting an                                                                      exemption it was                                           Studley'sburden to "prov[e]                                          


each fact necessary" to show that a reporting exemption applied.                                                                                                                                                                                                                                     

                                                                                                                                                                                                                                           Contending that he  


"cannot  know  the  circumstances  of  each  client,  [but]  can  envision  or  anticipate  


circumstances in which disclosure would be detrimental," Studley offers four "possible  



examples" where disclosure could be detrimental to a client.                                                                                                                                                              Studley argues that such  


hypothetical examples should suffice for an exemption, quoting Falcon v. Alaska Public  

                       27                      2 AAC 50.775(a).           

                       28                      The four hypothetical clients Studley offers as examples are:  (1) "a seller  


who anticipates a divorce or dissolution"; (2) "a buyer [with] a creditor who is looking                                                                                                                                                                                           

for property on which to place a lien"; (3) "[t]he victim of a crime"; and (4) a buyer with  


an "interest in keeping the selling price . . . confidential."                                                                                                                                            

                                                                                                                                                -10-	                                                                                                                                        7148

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 Offices Commission                                   for the proposition that "a case-by-case determination would be                                                                                       

 excessively burdensome."                                         Studley offered the Commission no facts pertaining to his                                                                               

 own situation supporting a reporting exemption.                                                                       

                                 We conclude that Studley's hypothetical scenarios are an insufficient basis                                                                                          

                                                                                                                                                30     Under 2 AAC 50.775(a)  

 for an exemption from the financial disclosure requirement.                                                                                                                              

 "the burden of proving each fact necessary to show that an exemption . . . is applicable"  


 is on the candidate seeking elective office.  Hypothetical scenarios do not qualify as  


 "fact[s] necessary to show that an exemption . . . is applicable."31  


                                 Studleywas in thebestpositiontoinvestigatehis clients' circumstances and  


present facts showing an applicable exemption.  But there is no evidence that Studley  


 tried to determine whether any client's name or commission amount could be legally  


protected from disclosure.  Studley's case is distinguishable from Falcon; that case was  


 decided before an exemption process existed, and real estate transactions have fewer  


                                                                                               32    Because Studley offered no facts showing an  

privacy considerations than healthcare.                                                                                                                                                                     


 applicable exemption with respect to any of his claims, he failed to meet his burden.  


                 29              570 P.2d 469, 480 (Alaska1977)(holding                                                             that absent regulationsproviding                       

 an exemption scheme, physicians are categorically exempt from                                                                                           "reporting the names of                             

 individual patients" in financial disclosure reports).                                                  

                 30              Because the Commission has no agency expertise, specialized knowledge,  


 or experience interpreting real estate confidentiality rules, we apply the substitution of  


judgment standard in making this determination.  See Lakloey, Inc. v. Univ. of Alaska,  


 141 P.3d 317, 320 (Alaska 2006).  


                 31              See 2 AAC 50.775(a).  


                 32              See Falcon, 570 P.2d at 479-80.  


                                                                                                    -11-                                                                                              7148

----------------------- Page 12-----------------------

                         3.	         Studley did not demonstrate that the required information was                                                       

                                     uniformly   confidential   and   that   disclosure   was  uniformly  

                                     prohibited by law.           

                         Studley   contends   that   he   is   under   a   statutory   duty   not  to   disclose  

confidential information, including client names and derived earnings. We consider this                                                                   

to   be   an   argument   that   disclosure   of   a   self-employed   real   estate   agent's   clients'  

information is always prohibited by law for purposes of Alaska's election disclosure                                                         



                         Alaska   Statute   08.88.620(4)   prohibits   a   broker   from   "disclosing  


confidential information from or about [a] represented person without written consent,  


except under  a subpoena or  another court order, even  after  termination of the .  .  .  



relationship."                    "[C]onfidential  information"  is  defined  in  AS  08.88.695(2)  as  


"information from or concerning a person" that:  


                                     (A)  the  licensee  acquired  during  the  course  of  the  


                         licensee's relationship as a licensee with the person;  


                                     (B)   the   person   reasonably   expects   to   be   kept  



                                     (C) the person has not disclosed or authorized to be  


                         disclosed to a third party;  


                                     (D) would, if disclosed, operate to the detriment of the  


                        person; and  


                                     (E) the person is not obligated to disclose to the other  



                        party in a real estate transaction . . . . 

            33           See  2  AAC  50.775(a),  (c)(1).  

            34           AS  0.88.620(4).  

            35           AS  08.88.695(2)  (emphasis  added).   A  real  estate  broker  is  considered  a  

licensee  in  this  context.   See  AS  08.88.695(7).  

                                                                            -12-	                                                                     7148

----------------------- Page 13-----------------------

The legislature's conjunctiveuse of the word"and"indicates                                                                         that allfiveconditions must                      

be satisfied to meet the "confidential information" definition.                                                                        36                 

                                                                                                                                            Here Studley failed to  



make the required showing. 


                              Studley argues that a real estate broker's clients reasonably expect their  


names and the broker-client relationship to be kept confidential because Alaska is a  


"non-disclosure state" and the information "is not part of the public record." He further  


contends that a candidate for elected office cannot be expected to determine whether  


clients disclosed his representation to third parties, which would render the information  


non-confidential under AS 08.88.695(2)(C).  


                             But  client  names  and  real  estate  broker  commissions  are  frequently  


disclosed to third parties. The Commission observes that disclosure of a client's identity  


"is generally necessary to enter into a purchase contract of sale, execute a deed, and close  


the transaction."  And during the January 2013 Commission meeting Studley admitted  


that  he  reveals  his  commission  amount  directly  to  counter  parties  in  real  estate  


transactions. Such disclosures are commonplace in land sale contracts, which generally  


include "the identity of the buyer and seller, the price to be paid, the time and manner of  

               36            SeeEmp't               Sec. Comm'n v. Wilson, 461P.2d 425, 428 (Alaska1969) ("[W]e                                                                

may assume that the legislature knew and understood the rules of grammar," and are                                                                                                     

"justified   in   relying   on   such   rules   in   the   interpretation   of   [Alaska]   laws."   (citing  

AS 01.10.040)).   

               37            We do not address all five elements of the definition because once we  


determine that one element is lacking, Studley's claim fails.  See AS 08.88.695(2).  


                                                                                           -13-                                                                                    7148

----------------------- Page 14-----------------------


payment,   and   the   property   to   be   transferred."                                  Much   of   this   information   is  also  

disclosed to third parties when real estate transactions are recorded.                                                39  

                       We do not suggest there can never be a transaction where a client's identity  


or the amount of the broker's commission is intended to be confidential. But we will not  


assume that all real estate broker's commissions and clients' identities must be and are  


always confidential.  And because Studley has not shown that any of his clients' names  


or his derived income were previously undisclosed to third parties, weaffirmthesuperior  


court's decision that he was not "prohibited by law . . . from reporting" this information  


to the Commission.40  


                        Studley also argues that the "crux of the problem is that a broker cannot  


know for certain what information is detrimental to a client, or whether the release of  


information  will  not  work  a  detriment  to  a  client  in  the  future."                                                   He  lists  four  


"circumstances"  in  which  he  "can  envision  or  anticipate"  disclosures  could  be  


                     41   But as noted earlier hypothetical scenarios do not show that disclosure  


would be detrimental to a real estate broker's actual clients. Alaska Statute 08.88.695(2)  


            38         Hall v. Add-Ventures,Ltd.                    ,695P.2d1081,               1086 n.6 (Alaska1985) (quoting                            

Custis v. Valley Nat'l Bank of Phx.                          , 375 P.2d 558, 561 (Ariz. 1962)).              

            39         See AS 40.17.040 (establishing that a district recorder shall maintain an  


index system for instruments "so the public may find documents by location and by  


names of grantors and grantees"). Studley contends that "no Alaska statute or regulation  


requires a property owner to record a transaction."  But he does not suggest that his  


clients do not in fact do so.  


            40         2 AAC 50.775(c)(1); see AS 08.88.695(2)(C).  


            41         See supra note 27 (outlining Studley's four hypothetical scenarios).  


                                                                        -14-                                                                   7148

----------------------- Page 15-----------------------

plainly   requires   that   a   disclosure   actually   be   detrimental   for   the   information   to   be  



                                 The mere possibility of theoretical harm does not mean a harm exists.  


                             Studley  relies  on Falcon  to  argue  that  his  clients'  "sensitive  personal  

                                                                                                                                 43    In Falcon we held that  



information" should be protected "from public disclosure." 

physicians did not need to "report[] the names of individual patients" because of the  


"significant privacyinterest"atstakein many physician-clientrelationships.44  But unlike  


Falcon where"[e]ven visits toageneralpractitioner may causeparticular embarrassment  


or opprobrium," we do not conclude that the disclosure of buyers and sellers of real  


estate will be similarly detrimental.45                                          In this case there is no indication of broad classes  


of  clients  who  must  uniformly  be  protected  from  election  disclosure  laws,  and  


AS 08.88.695(2) already provides a mechanism for protecting confidential information  


in individual circumstances.  Because Studley has failed to show that disclosure would  


actually be detrimental to any of his clients, we affirm the superior court's decision that  



Studley was not asked "to disclose any confidential information."                                                                                 


              42             See   AS   08.88.695(2)(D)   (requiring   that   the   confidential  information  

"would, if disclosed, operate to the detriment of the person" (emphasis added));                                                                                        see also   

Heller v. State, Dep't of Revenue                                         , 314 P.3d 69, 74 (Alaska 2013) ("The plainer the                                                       

meaning of the statute, the more persuasive any legislative history to the contrary must                                                                                       

be." (quoting                City of Dillingham v. CH2M Hill Nw., Inc.                                                  , 873 P.2d 1271, 1276 (Alaska                    

 1994)));  cf. id.                ("We give unambiguous statutory language its ordinary and common                                                                    

meaning . . . ." (citing                        City of Dillingham                       , 873 P.2d at 1276)).         

              43            Falcon v. Alaska Pub. Offices Comm'n, 570 P.2d 469, 480 (Alaska 1977).  


              44            Id.  

              45            Id. at 479-80.  


              46             See AS 08.88.695(2)(D).  


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                                     4.	                Studley has not demonstrated that the disclosures would violate                                                                                                     

                                                       his clients' constitutional privacy rights.                                                         

                                     In addition to his statutory argument Studley contends that disclosing his                                                                                                                        

clients' names and derived income would violate his clients' constitutional privacy                                                                                                                                      


                        Studley again relies on Falcon to argue that his clients' personal information  



should be kept confidential. 


                                     But just as with Studley's statutory argument, his constitutional privacy  


argument fails because he relies solely on generalized hypotheticals. If Studley had any  


specific client relationships where a constitutional right of privacy was a concern, it was  


his obligation to bring the facts of those relationships to the Commission's attention and  


request an exemption.  But Studley brought no specific requests.  


                                     We held in Falcon  that disclosing the identities of physicians' patients  


could not be required until the Commission promulgated regulations "provid[ing] a  


method for exempting certain classes of patients . . . or for determining whether certain  

                                                                                                                                    49  But the broker-client relationship is  

patients fall within special or sensitive classes." 

not like the physician-client relationship we addressed in Falcon, where because of  


"specialized practice[s], the disclosure of the patient's identity also reveals the nature of  


the treatment, and the particular type of treatment is one which patients would normally  


                   47                See   Alaska Const.                                    art.  I,      22   ("The right of the people to                                                                      privacy   is  

recognized and shall not be infringed."); 2 AAC 50.775(c)(2) (permitting candidates to                                                                                                                                                    

seek an exemption when a disclosure "would violate rights of the source under [the] state                                                                                                                                          

 . . . constitution[]").       

                   48                See Falcon, 570 P.2d at 479-80.  


                   49                Id. at 480.  


                                                                                                                  -16-	                                                                                                          7148

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seek to keep private."                                Studley does not present "classes of clients" who might have a                                                                              

common interest in privacy; he instead presents four unique circumstances that do not     

lend themselves to ready classification and are best dealt with on a case-by-case basis.                                                                                                              

And the Commission's regulations provide Studley with a method of preserving his                                                                                                             

                                                     51    Because no blanket exemption exists, we affirm the superior  

clients' confidentiality.                                                                                                                                                        

court's rejection of Studley's clients' constitutional claims.  


               C.             Studley's Remaining Personal Constitutional Claims Fail.  


                               Studley also argues that his own constitutional right to privacy would be  


infringed by the required candidacy financial disclosures.  But the required disclosures  


are neither "personal" nor "intimate," and Studley, at least with respect to potential  


conflicts of interest, has "waived his right to privacy by 'voluntarily entering the public  


arena.' "52  



                               Studley  also  asserts  that  he  has  been  "whipsawed"  by  "dueling"  


requirements, arguing that his statutory duty of confidentiality irreconcilably competes  


with the candidate disclosure laws, setting an "unconstitutional condition" that impairs  


his constitutional right of candidacy.  He contends that his right to stand for election is  


infringed because abiding by the disclosure requirements could subjecthimto discipline,  


suspension, or loss of his broker's license.  Studley argues that this violates his equal  


protection and substantive due process rights and acts as a barrier to his candidacy.  


                              But  the  constitutional  rights  of  self-employed  real  estate  brokers  like  


Studley who run for public office are protected.  A broker may stand for elective office  

               50             Id.  

               51             See  2 AAC 50.775.          



                              Falcon, 570 P.2d at 474 (citing N.Y. Times Co. v. Sullivan, 376 U.S. 254  


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----------------------- Page 18-----------------------


by either making the required disclosures or proving an exemption applies.                                                                                                                                        And  

Studley's right of candidacy was not impaired; he stood for election to the borough                                                                                                                     

assembly   and   could   have   avoided   any   penalty   by   following   the   Commission's  

procedures. Studley's                                    remaining personal constitutional argumentsareall                                                                                without merit.   

We affirm the superior court's decision on those issues.                                                                                         

V.               CONCLUSION  

                                  We AFFIRM the superior court's decision affirming the Commission's  


final order and civil penalty.  


                 53               2 AAC 50.775(a).  


                                                                                                          -18-                                                                                                             7148  

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