State v. Marshall

• Decision Date: 08 September 1981
• Docket Number: No. 5614,5614
• Parties: STATE of Alaska, Alaska Public Offices Commission, Petitioner, v. Joseph D. MARSHALL, City Councilman for the City of Fairbanks and Assemblyman for the Fairbanks North Star Borough, Respondent.
• Court: Alaska Supreme Court

Page 227

633 P.2d 227

STATE of Alaska, Alaska Public Offices Commission, Petitioner, v. Joseph D. MARSHALL, City Councilman for the City of Fairbanks and Assemblyman for the Fairbanks North Star Borough, Respondent.

No. 5614.

Supreme Court of Alaska.

Sept. 8, 1981.

Elizabeth Page Kennedy, Asst. Atty. Gen., Anchorage, and Wilson L. Condon, Atty. Gen., Juneau, for petitioner.

Arthur L. Robson, Fairbanks, for respondent.

Before RABINOWITZ, C. J., and CONNOR, BURKE, MATTHEWS and COMPTON, JJ.

OPINION

CONNOR, Justice.

I. Introduction

This case involves a petition brought by the Alaska Public Offices Commission (APOC), before the court on original jurisdiction, which seeks to declare void ¹ the election of Joseph Marshall to the Fairbanks City Council and Fairbanks North Star Borough Assembly. On December 30, 1980, the case was submitted to superior court judge Eben Lewis as a special master of this court. The Master's Report, released April 10, 1981, found a violation of disclosure laws but recommended solely prospective enforcement of the forfeiture of office provision, pending APOC promulgation of regulations clarifying application of this sanction.

A. Facts

Stipulated facts and the Master's findings establish that Marshall violated state election laws by failing to timely file a seven-day pre-election contributions and expenditures report during the October, 1980, Fairbanks municipal and borough elections. The report was due September 30, 1980. The election was held October 7, 1980. Marshall's seven-day report was filed, i. e., received, by the APOC on October 16, 1980 (sixteen days late), although it was prepared October 14, 1980.

Marshall admits receiving on September 28th an APOC letter, dated September 24 1980, which informed him, in part, that his seven-day report was due September 30, 1980. After the deadline passed, the APOC, by letter dated October 6, 1980 (one day before the election), informed Marshall that his report was past due. The letter discusses civil fines for Marshall's filing delinquency, but makes no mention of a forfeiture of office sanction. The letter was not signed for (i. e., not received) until October 14th, the day Marshall finally prepared the report.

Marshall has a history of failing to timely file his contribution and expenditures reports for municipal and borough elections. During the 1974 elections, his seven-day pre-election report was filed twenty-two days late; no disciplinary action was taken. During the 1977 elections, his seven-day pre-election report was filed sixteen days late; again, no disciplinary action was taken.

Although Marshall, in the words of the Master, "had prior experience with the law requiring filing reports of campaign finances," the Master nonetheless concluded that Marshall's failure to timely file his 1980 pre-election report "should be characterized as careless or neglectful." This conclusion was based on a finding that "(n)o corrupt or fraudulent acts" were committed, and apparently on Marshall's testimony that he "just forgot" to file.

B. Statutory Framework

Candidates for elective office must disclose certain information in order to qualify for office. Among other things, the candidate must file up to five reports disclosing campaign contributions and expenditures: (a) one is due 30 days before the election; (b) one is due 7 days before the election; (c) one is due 10 days after the election; (d) one is due on December 31st of each year during which contributions or expenditures were made which were otherwise unreported; and (e) one is due within 24 hours of any contribution over $250 made during the week preceding the election. AS 15.13.110. Candidates for municipal office must comply with these reporting requirements unless the local government votes to take itself outside the scope of coverage. AS 15.13.010. Neither the city nor borough has exempted itself.

Three sanctions are available when a candidate violates the reporting requirements: imprisonment, civil fine, or forfeiture of office. Failure to make a statement or report, e. g., the seven-day pre-election report, is an explicit violation. AS 15.13.120(a)(1). Violations can be treated as misdemeanors, punishable by up to one year imprisonment or a maximum $5,000 fine. AS 15.13.120(a). Daily civil penalties may also result from late filing; the maximum amount for late seven-day reports is $50 per day. AS 15.13.125. Finally, an election or nomination "is void" if obtained concurrent with a violation of the chapter. AS 15.13.120(b). ²

The APOC has, by regulation, provided for a schedule of civil penalties and for a process of assessment, ³ notice, ⁴ challenge, ⁵ resolution, ⁶ and appeal ⁷ regarding these penalties. No regulations have been promulgated which directly deal with the forfeiture ⁸ of election sanction.

II. Legal Issues

After first finding original jurisdiction to be a legitimate exercise of this court's power, the Master concluded, inter alia : (a) that the forfeiture sanction is a constitutional exercise of legislative power because it "does not determine eligibility for public office but rather establishes a mechanism to determine whether an eligible candidate may be permitted to enjoy that office ..."; (b) that the statute does not require proof that the violation was willful, and, further, that there is "no indication of a legislative intent respecting the degree of willfulness" required; (c) that the statute fails to provide standards for testing the candidate's right to office; and (d) that AS 15.13.120(b), the forfeiture sanction, should be construed as directory rather than mandatory as applied to delinquent reporting violations, pending the promulgation of regulations detailing the sanction's applicability, and in any case should not apply to any 1980 elections. ⁹ We conclude that the statute is valid and that its plain language requires us to declare void Marshall's election to the city council and borough assembly.

A. Constitutionality of the Forfeiture Sanction

¹⁰

Although rarely stated as plainly as Alaska's law, numerous other states have similar forfeiture provisions. ¹¹ Several jurisdictions have declared these statutes unconstitutional on one of two grounds, neither of which applies here.

The first group of cases is premised on a separation of powers concept. State constitutions uniformly ¹² declare that the members of each state legislative house shall determine the election and qualifications of its members. ¹³ Construing this constitutional grant of authority as exclusive, courts reason that empowering the judiciary to investigate and declare an election void violates separation of powers. See Dinan v. Swig, 112 N.E. 91, 92, 93 (Mass.1916); Combs v. Groener, 256 Or. 336, 472 P.2d 281, 282-83 (1970). Contra, State ex rel. La Follette v. Kohler, 200 Wis. 518, 228 N.W. 895, 908-09 (1930). This approach, however, is inapplicable here. Marshall was elected to local legislative bodies. No constitutional provision grants these bodies the type of authority granted the state legislative houses regarding a member's qualifications and election. Thus even if the forfeiture sanction conflicts with art. II, sec. 12, of the Alaska Constitution insofar as state legislative elections are concerned, a question we do not reach, ¹⁴ it can nonetheless constitutionally apply to local elections. Although Article X of the Alaska Constitution, governing local governments, intends "maximum local self-government," and mandates that a "liberal construction shall be given to the powers of local government," art. X, sec. 1, no provision makes a grant of authority analogous to that found in art. II, sec. 12 (see note 13, supra ). The statute in question establishes an election procedure and we have previously noted that "it is within the province of the legislature to establish election procedures." Silides v. Thomas, 559 P.2d 80, 89 (Alaska 1977). Further, the provision of the reporting requirements that allows a local government to opt out of coverage, see AS 15.13.010(a), saves the statute from any unconstitutionality premised upon a conflict with maximum local self-government.

The second view holding forfeiture statutes unconstitutional interprets constitutionally specified qualifications for office as exclusive, and reasons that tying campaign disclosure requirements to the forfeiture sanction impermissibly adds qualifications for the office. See Maloney v. Kirk, 212 So.2d 609, 614 (Fla.1968) (split decision). A majority of courts, however, have rejected this view. See Secretary of State v. McGucken, 244 Md. 70, 222 A.2d 693, 695 (1966); Saari v. Gleason, 126 Minn. 378, 148 N.W. 293, 294-95 (1914), reaffirmed in Pavlak v. Growe, 284 N.W.2d 174, 177-78 (Minn.1979); Laborer's Educational & Political Club-Independent v. Danforth, 561 S.W.2d 339, 344 (Mo.1977); State ex rel. La Follette v. Kohler, 202 Wis. 518, 228 N.W. 895, 907-08 (1930). Two of these cases, however, did adopt this view to the extent they were confronted with a statutory scheme prohibiting the candidate from holding either the contested office or other public offices for a future period of time. The added qualification theory may more appropriately apply to such a situation, when qualifications are constitutionally-based, because such statutes may be construed as adding the condition that to qualify for office one must never have previously violated campaign laws. ¹⁵

We are persuaded by those cases upholding the forfeiture sanction, which reason that rather than imposing impermissible eligibility requirements, the forfeiture sanction merely excludes those who obtain office by unlawful means, i. e., in violation of campaign laws, and thus precludes them from reaping the benefit of their wrong. Our premise is that a valid election is an obvious, if unstated, constitutionally-based eligibility requirement for membership in a legislative body. See Pavlak, 284 N.W.2d at 180 n.4. The legislature's...