Barbara Jones, in an official capacity as Municipal Clerk for the Municipality of Anchorage, and the Municipality of Anchorage v. Russell Biggs ( 2022 )

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, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
BARBARA JONES, in an official )
capacity as Municipal Clerk for the ) Supreme Court No. S-18102
Municipality of Anchorage, and the )
MUNICIPALITY OF ANCHORAGE, ) Superior Court No. 3AN-20-08262 CI
)
Appellants, ) OPINION
)
v. ) No. 7592 – May 6, 2022
)
RUSSELL BIGGS, )
)
Appellee, )
)
and )
)
MEG ZALETEL, )
)
Intervenor. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Kevin M. Saxby, Judge.
Appearances: 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.
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” 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
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“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
1
Alaska Statute 01.10.040(a) directs that “[w]ords and phrases shall be
construed . . . according to their common and approved usage.”
2
We note that the current grounds for recall were established in 1972, though
the statute was reorganized in 1985. Compare ch. 118, § 2, SLA 1972, with ch. 74, § 9,
SLA 1985; see also Meiners v. Bering Strait Sch. Dist., 687 P.2d 287, 295 (Alaska 1984)
(discussing history of recall provisions in Alaska). The superior court referred to the
1979 Fifth Edition of Black’s Law Dictionary, but it should have looked at the Revised
Fourth Edition published in 1968. The error, however, is harmless because the relevant
portion of the definition of “misconduct in office” is identical in both the 1968 and 1979
versions. Compare Misconduct in Office, BLACK’S LAW DICTIONARY (rev. 4th ed. 1968),
(continued...)
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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
2
(...continued)
with Misconduct in Office, BLACK’S LAW DICTIONARY (5th ed. 1979).
3
Citing Misconduct in Office, BLACK’S LAW DICTIONARY (5th ed. 1979)
(identical in 1968 edition).
4
State, Off. of Lieutenant Gov., Div. of Elections v. Recall Dunleavy, 491
P.3d 343, 354 (Alaska 2021) (quoting von Stauffenberg v. Comm. for an Honest &
Ethical Sch. Bd., 903 P.2d 1055, 1059 n.9 (Alaska 1995)).
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IV. DISCUSSION
The Alaska Constitution provides that “[a]ll elected public officials in the
State, except judicial officers, are subject to recall 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”
5
Alaska Const. art. XI, § 8.
6
AS 29.26.250.
7
AS 29.26.260.
8
AS 29.26.270.
9
AS 29.26.280-.290.
10
AS 29.26.310-.320.
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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 words.”15
At issue in this case is whether participating in a meeting in knowing
violation of an executive order constitutes “misconduct in office.” The municipal recall
statute does not define the term.16 We have held there was no prima facie showing of
misconduct in office when elected officials “legally exercis[ed] the discretion granted to
11
State, Off. of Lieutenant Gov., Div. of Elections v. Recall Dunleavy, 491
P.3d 343, 352-53 (Alaska 2021) (quoting Meiners v. Bering Strait Sch. Dist., 687 P.2d
287, 294 (Alaska 1984)).
12
Id. at 356 (quoting von Stauffenberg v. Comm. for an Honest &Ethical Sch.
Bd., 903 P.2d 1055, 1059-60 (Alaska 1995)).
13
Meiners, 687 P.2d at 296 (alteration in original) (quoting Boucher v.
Engstrom, 528 P.2d 456, 462 (Alaska 1974)); Recall Dunleavy, 491 P.3d 343, 355
(Alaska 2021).
14
Meiners, 687 P.2d at 301.
15
Id. at 302.
16
See AS 29.26.250.
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them by law.”17 But we have not defined “misconduct in office,”18 and we need not do
so here. As we held in Meiners and Recall Dunleavy, recall statutes must be “liberally
construed so that ‘the people [are] permitted to vote and express their will.’ ”19 The
Clerk did the opposite by applying a definition that added requirements including a
criminal degree of intent, and “wrapp[ed] the recall process in . . . a tight legal
straightjacket.”20
The superior court concluded that the Clerk “applied an inaccurate
definition of ‘misconduct in office’ in determining that [Biggs’s] application . . . was
insufficient, and concluded incorrectly that a showing of ‘some component of
dishonesty, private gain, or improper motive’ was required for the allegation’s legal
sufficiency.” The court therefore reversed the Clerk’s denial. We agree and adopt the
superior court’s reasoning as quoted below.21
17
von Stauffenberg, 903 P.2d at 1060.
18
See Meiners, 687 P.2d at 299 n.14 (declining to decide whether alleged
conduct amounted to misconduct in office when it met different statutory ground for
recall).
19
Id. at 296 (alteration in original) (quoting Boucher v. Engstrom, 528 P.2d
456, 462 (Alaska 1974)); State, Off. of Lieutenant Gov., Div. of Elections v. Recall
Dunleavy, 491 P.3d 343, 355 (Alaska 2021).
20
Meiners, 687 P.2d at 302.
21
The excerpt of the superior court’s decision has been revised and modified
to conform with our format. Bracketed footnotes and in-text brackets regarding the
Black’s edition used indicate substantive modifications made where needed.
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****
The Municipal Clerk’s rejection of Biggs’s application
. . . was based on the Clerk’s interpretation of the meaning of
“misconduct in office.” “Misconduct in office” is not defined
in the recall statutes or the municipal code. The Municipal
Clerk reasoned that a legally sufficient allegation of
misconduct “requires some component of dishonesty, private
gain, or improper motive.” The Clerk derived this rule from
a review of the [2019] Black’s Law Dictionary’s definition of
“official misconduct”: “1. A public officer’s corrupt
violation of assigned duties by malfeasance, misfeasance, or
nonfeasance. 2. Abuse of public office.”34 She also looked
to the Black’s Law Dictionary’s definition of “corrupt” as
“[h]aving unlawful or depraved motives; given to dishonest
practices, such as bribery.”35
Biggs argues that resorting to the definitions of
“official misconduct” and “corrupt” in Black’s Law
Dictionary was improper for a few different reasons. First,
Black’s is a technical law dictionary, and the “words and
phrases” of Alaska’s statutes are to be “construed . . .
according to their common and approved usage.”36 The
Alaska Supreme Court specifically instructed that recall
statutes “should be liberally construed so that ‘the people
_______________________________________________
34
Official Misconduct, BLACK’S LAW DICTIONARY
(11th ed. 2019).
35
Corrupt, BLACK’S LAW DICTIONARY (11th ed.
2019).
36
AS 01.10.040; see also, e.g., Adamson v.
Municipality of Anchorage, 333 P.3d 5, 16 (Alaska 2014);
Norville v. Carr-Gottstein Foods Co., 84 P.3d 996, 1001 n.3
(Alaska 2004).
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[are] permitted to vote and express their will.’ ”37 Thus,
Biggs argues that a broader, more accessible meaning of the
phrase “misconduct in office” should apply.
Second, while conceding that the Alaska Supreme
Court will at times use Black’s to assess common meanings
of words and phrases for the purpose of statutory
interpretation,38 Biggs argues that there are instances in which
the Court has rejected Black’s definition when it is overly
precise in a way that is not on point for the litigated issue.39
Here, he asserts that using the Black’s definition of “official
misconduct” is unhelpful because it adopts a definition that
is the functional equivalent of the crime of official
misconduct with no suggestion of any legislative intent to do
so.40 Alaska has long had a statute listing the elements of the
crime of official misconduct,[41] but there is no indication in
the record that the legislature intended for that definition to
apply in the civil context of a recall for misconduct in office.
_______________________________________________
37
Meiners v. Bering Strait Sch. Dist., 687 P.2d
287, 296 (Alaska 1984) (alteration in original) (quoting
Boucher v. Engstrom, 528 P.2d 456, 462 (Alaska 1974)).
38
E.g., Benavides v. State, 151 P.3d 332, 335-36
(Alaska 2006); Univ. of Alaska v. Geistauts, 666 P.2d 424,
430 (Alaska 1983).
39
Parson v. State, Dep’t of Rev., 189 P.3d 1032,
1037 (Alaska 2008); Little Susitna Constr. Co. v. Soil
Processing, Inc., 944 P.2d 20, 24 (Alaska 1997); Rhines v.
State, 30 P.3d 621, 625-26 (Alaska 2001).
40
AS 11.56.850(a).
41
Alaska Statute 11.56.850(a) provides:
A public servant commits the crime of official
misconduct if, with intent to obtain a benefit or
to injure or deprive another person of a benefit,
the public servant (continued...)
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This court agrees with the reasoning . . . in Aderhold v. City
of Homer & Heartbeat of Homer that, in a recall context,
“requir[ing] misconduct in office to be criminal would . . .
undermine the intent and effectiveness of the recall statutes
. . . and would deny the voters’ right to effectively seek recall
of their elected officials.”42
Biggs further argues that the definition of the word
“misconduct,” when not defined within the context of the
crime of official misconduct, has a broader meaning more
compatible with the recall context. He cites to Black’s
definition of misconduct as “[a] dereliction of duty; unlawful,
dishonest, or improper behavior, esp[ecially] by someone in
a position of authority or trust.”43 He argues that this
definition is more in line with the ordinary meaning of
misconduct one finds in non-technical dictionaries. And the
requirement that the misconduct must be “in office” can be
met by showing that the subject was acting in his or her
official capacity when committing the alleged misconduct.
________________________________________________
41
(...continued)
(1) performs an act relating to the public
servant’s office but constituting an
unauthorized exercise of the public servant’s
official functions, knowing that act is
unauthorized; or
(2) knowingly refrains from performing a duty
which is imposed upon the public servant by
law or is clearly inherent in the nature of the
public servant’s office.
42
No. 3AN-17-06227 CI at 4 (Alaska Super.,
May 23, 2017).
43
Misconduct, BLACK’S LAW DICTIONARY (11th
ed. 2019).
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Thus, borrowing the corrupt element from “official
misconduct” is unnecessary for the purpose of interpreting
“misconduct in office.”
The Municipality argues that it is not requiring
misconduct to be criminal and is instead drawing an analogy
from the definition of official misconduct in order to better
understand “misconduct in office.” But it is unclear what use
this analogy is when it effectively includes a scienter
requirement that raises the bar for misconduct in office to be
on par with official misconduct. If the legislature wanted to
add additional scienter elements to its broad reference to
misconduct in office, it could have done so, as it has for
findings of misconduct in other circumstances. But the
legislature has instead elected not to further constrain the
meaning of “misconduct in office” for the purposes of
municipal recall petitions.
Significantly, to this court, the definitions in the most
current edition of Black’s would be far less probative of
legislative intent than the definitions contained in the edition
in print . . . when AS 29.26.250 was enacted.[44] The [Fourth]
Edition of Black’s was most current [when the statute was
enacted], and it. . . [ ] defined misconduct in office as “[a]ny
unlawful behavior by a public officer in relation to the duties
of his office, willful in character.”[45] . . . . If this definition is
________________________________________________
44
See ch. 118, § 2, SLA 1972. “When construing
statutes de novo, we consider three factors: ‘the language of
the statute, the legislative history, and the legislative purpose
behind the statute.’ ” City of Valdez v. State, 372 P.3d 240,
248 (Alaska 2016) (quoting Oels v. Anchorage Police Dep’t
Emps. Ass’n, 279 P.3d 589, 595 (Alaska 2012)).
45
Misconduct in Office, BLACK’S LAW
DICTIONARY (rev. 4th ed. 1968). See supra note 2 (noting
applicability of Black’s Revised Fourth Edition but superior
court citation to Fifth Edition was harmless error).
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applied in this case, then 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.
Biggs’s arguments are persuasive on this issue. The
Clerk’s definition of “misconduct in office” was overly
reliant on the current definition of “official misconduct” in a
way that obviated, rather than captured, the ordinary meaning
of AS 29.26.250. Consequently, the “corrupt” requirement
does not apply within the meaning of “misconduct in office.”
And this court agrees with [the superior court in an earlier
recall case] that “there is no de minimis exception under
Alaska law mandating that an alleged ground for recall must
reach a certain threshold of severity to be certified.”46
But this court also appreciates that Alaska is a “for
cause” recall state, and that there must be some sufficient
allegation of actual misconduct in order for a petition to go
forward.47 Officials must be able to identify, and potentially
avoid, the conduct that would serve as the basis for a recall
petition.[48] Zaletel’s alleged violation of EO-15 is sufficient
to meet that threshold. She allegedly violated EO-15 in her
official capacity as an assembly member and actively
participated in a meeting that violated an existing emergency
order. This is enough for her misconduct to have been “in
office” and enough to make a prima facie case.
________________________________________________
46
Midtown Citizens Coal. v. Municipality of
Anchorage, No. 3AN-20-09614 CI at 6 (Alaska Super.,
Jan. 25, 2021).
47
von Stauffenberg v. Comm. for an Honest &
Ethical Sch. Bd., 903 P.2d 1055, 1059-60 (Alaska 1995);
Meiners v. Bering Strait Sch. Dist., 687 P.2d 287, 294
(Alaska 1984).
48
See von Stauffenberg, 903 P.2d at 1059.
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This court, in reviewing applications for recall
petitions, treats the factual claims as true. And the recall
statutes are to be construed liberally. Participating in an
assembly meeting, as an assembly member, in knowing
violation of municipal law, while obviously defensible, is
legally sufficient to support an allegation of misconduct in
office for the purposes of a recall petition. The decision must
be left up to the voters.
****
V. CONCLUSION
Because the superior court correctly found that the Clerk applied an
inaccurate definition of “misconduct in office” in determining that Biggs’s application
was insufficient, which improperly required a showing of “some component of
dishonesty, private gain, or improper motive,” we AFFIRM the decision of the superior
court.
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