Jones v. Biggs, Supreme Court No. S-18102

CourtSupreme Court of Alaska (US)
Writing for the CourtCARNEY, Justice.
Citation508 P.3d 1121
Parties Barbara JONES, in an official capacity as Municipal Clerk for the Municipality of Anchorage, and the Municipality of Anchorage, Appellants, v. Russell BIGGS, Appellee, and Meg Zaletel, Intervenor.
Docket NumberSupreme Court No. S-18102
Decision Date06 May 2022

508 P.3d 1121

Barbara JONES, in an official capacity as Municipal Clerk for the Municipality of Anchorage, and the Municipality of Anchorage, Appellants,
v.
Russell BIGGS, Appellee,
and
Meg Zaletel, Intervenor.

Supreme Court No. S-18102

Supreme Court of Alaska.

May 6, 2022


Ruth Botstein, Assistant Municipal Attorney, and Patrick N. Bergt, Municipal Attorney, Anchorage, for Appellants.

Samuel C. Severin, Chandler, Falconer, Munson & Cacciola, LLP, Anchorage, for Appellee.

Thomas P. Amodio, Reeves Amodio LLC, Anchorage, for Intervenor.

Before: Winfree, Chief Justice, Maassen, Carney, Borghesan, and Henderson, Justices.

OPINION

CARNEY, Justice.

I. INTRODUCTION

A citizen filed an application for a petition to recall a member of the Anchorage Assembly, alleging that the assembly member had committed misconduct in office by participating in an indoor gathering of more than 15 people in violation of an executive order. The municipal clerk rejected the application after concluding that the alleged conduct did not constitute misconduct in office. The superior court reversed the clerk's denial of the application. We affirm the superior court's decision.

II. BACKGROUND

The Anchorage Assembly is the Municipality of Anchorage's legislative body and holds weekly meetings generally open to the public. On August 3, 2020, the Anchorage mayor issued Executive Order 15 (EO-15) to slow the spread of COVID-19. The order limited indoor gatherings to no more than 15 people.

Russell Biggs filed an application for a petition to recall Assembly Member Meg Zaletel. The Municipal Clerk denied Biggs's application, which alleged that Zaletel "committed misconduct in office" when she "violat[ed] EO-15" by "knowingly participating in an indoor gathering of more than 15 people (a meeting of the Anchorage Assembly)" and "continuing to participate in an indoor gathering of more than 15 people ... after being specifically informed of the violation." The Clerk deemed the allegation legally insufficient because " ‘misconduct in office’ requires some component of dishonesty, private gain, or improper motive — which is not alleged within Recall Application 2020-05." The Clerk based her interpretation of "misconduct in office" on the definition of "official misconduct"

508 P.3d 1123

in the 2019 edition of Black's Law Dictionary, which includes a requirement of corruption or abuse of office, and the constitutional and statutory history of Alaska's recall provisions.

Biggs appealed the Clerk's denial of his application to the superior court. He argued that the Clerk erred by relying on Black's Law Dictionary's definition of "official misconduct." Biggs asserted that the Clerk should not have used "technical law dictionaries to interpret statutes" and instead should have interpreted them according to their "common and approved usage" as required by law.1 Biggs also argued that, if using Black's was appropriate, the Clerk should have relied on the broader definition of "misconduct" as "[a] dereliction of duty; unlawful, dishonest, or improper behavior, esp[ecially] by someone in a position of authority or trust," because it better aligned with the ordinary meaning of misconduct. Biggs argued that using the 2019 Black's definition of "official misconduct" would render AS 29.26.250 ’s "misconduct in office" ground for recall equivalent to the crime of official misconduct found in AS 11.56.850, contrary to the requirement that recall statutes are to be construed liberally. He also argued that the legislative history of the municipal recall statute did not support the Clerk's narrow reading and interpretation of "misconduct in office."

The superior court agreed with Biggs. It found that the Clerk's "inaccurate" interpretation of "misconduct in office" "was overly reliant on the current definition of ‘official misconduct.’ " The court reasoned that the 2019 edition of Black's was "far less probative of legislative intent than the definitions contained in the [e]dition in print in 1985 when AS 29.26.250 was enacted."2 Additionally, the court found that the corruption requirement added a scienter element akin to that required for official misconduct, which would undermine the goals of the recall statutes.

The court noted that the 1979 edition of Black's defined "misconduct in office" as "[a]ny unlawful behavior by a public officer in relation to the duties of his office, willful in character."3 This definition made clear, the superior court concluded, that "Zaletel's alleged unlawful behavior of participating in an over-capacity meeting as a public officer, after being warned that the gathering was unlawful, would constitute misconduct in office." The superior court reversed the Clerk's denial of Biggs's application for a petition.

The Municipality appeals the superior court's decision. We agree with the superior court's decision and analysis. We affirm the court's decision and adopt the relevant sections of its order.

III. STANDARD OF REVIEW

This appeal raises only questions of law regarding the interpretation of Alaska's recall statutes. "When interpreting Alaska's recall statutes, we exercise our independent judgment and adopt ‘the rule of law which is most persuasive in light of precedent, policy and reason.’ "4

IV. DISCUSSION

The Alaska Constitution provides that "[a]ll elected public officials in the State, except judicial officers, are subject to recall

508 P.3d 1124

by the voters" and that the legislature shall set forth the grounds and procedures for recall.5 Alaska Statutes 29.26.240 - .360 govern the recall of municipal officials and permit their recall on three grounds: "misconduct in office, incompetence, or failure to perform prescribed duties."6 To recall a municipal official an applicant must first file an application with the municipal clerk; among other requirements, the application must describe "in 200 words or less ... the grounds for recall stated with particularity."7 If the clerk determines that the application meets the requirements, the clerk must issue a recall petition.8 Proponents of the recall then gather signatures and file the petition with the clerk, who must certify whether the petition is sufficient.9 If it is certified as sufficient, the clerk must submit it to the governing body and a recall election must be held.10

Alaska's for-cause recall process follows "a middle ground" between states that treat recall as "special, extraordinary, and unusual" and construe grounds narrowly in favor of the office holder, and states that treat recall as "essentially a political process" and construe "all doubts ... in favor of placing the question before the voters."11 This means that a reviewing court must take factual allegations in the petition as true and assess "whether such facts constitute a prima facie showing of" at least one of the statutory grounds for recall.12 The recall statutes should be "liberally construed so that ‘the people [are] permitted to vote and express their will,’ "13 and the court must "avoid wrapping the recall process in ... a tight legal straitjacket" navigable only "by an attorney who is a specialist in election law matters."14 The threshold for legal and factual sufficiency is low: the allegation must be based on a statutory ground for recall and the facts alleged must describe the relevant acts or omissions with sufficient particularity to give the targeted official a "fair opportunity to defend his conduct in a rebuttal limited to 200...

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