State v. Jeffery

170 P.3d 226, 2007 Alas. LEXIS 157, 2007 WL 3332718

• Court: Alaska Supreme Court
• Decided: November 9, 2007
• Docket: S-12101
• Status: Published

Opinions

OPINION

EASTAUGH, Justice.

I. INTRODUCTION

The question presented here is whether two sitting Alaska judges complied with AS 15.85.070 and .110, which require judges seeking retention in office to file "declarations of candidacy for retention" with the Alaska Division of Elections "no later than August 1." The two judges filed their declaration of candidacy forms after the statutory filing deadline had passed. The Division of Elections determined that both judges were ineligible to stand for retention. The superi- or court ultimately concluded that the division had abused its discretion in making that determination because the judges had substantially complied with the filing requirements. Because we conclude that the division's determination was supported by the facts and had a reasonable basis in law, we reverse and order the judges to vacate their seats within ninety days after this opinion takes effect per Appellate Rule 507(b).

It is easy and natural to be sympathetic to the appellees, given both the harshness of the result and the appellees' outstanding ree-ord for public service as judges, but the outcome here is compelled by unambiguous statutes.

I. FACTS AND PROCEEDINGS

Alaska judges wishing to retain their offices periodically stand for retention.¹ The Alaska Judicial Council (the council) is the agency charged with evaluating judges seeking retention and providing the public with information about those judges.² In November 2003 the council began the evaluation process for all possible 2004 retention candidates by sending questionnaires to each of the twelve judges who were potentially required to stand for retention in the 2004 general election. The questionnaires requested certain background information from the judges, such as the types of cases they had handled in the previous term of office and whether they were involved in any legal or disciplinary matters. Both Superior Court Judge Michael I. Jeffery and District Court Judge Naney Nolan promptly returned their completed questionnaires to the council. Two of the other ten judges required to stand for retention in 2004 if they wished to retain their judgeships did not return the questionnaires and informed the council they would not stand for retention. In January 2004 the council began the evaluation process for the ten judges seeking retention, including Judge Jeffery and Judge Nolan.

On June 8, 2004 the Division of Elections (the division) asked the council for the mailing addresses of the judicial retention candidates so the division could send them information about the Official Election Pamphlet. The council replied that same day by emailing the division the addresses for the ten judges, including Judge Jeffery and Judge Nolan. The following day, the division sent letters to the ten judges reminding them of the August 7 deadline for submitting their materials for inclusion in the voter pamphlet. The division's letter came in two versions. The version sent to Judge Jeffery and Judge Nolan began with the introductory clause "[allthough you have not yet filed for judicial retention," and then reminded them that "August 1 is the deadline to file for judicial retention." The other version, sent to judges who had already filed for retention, instead stated, "you have filed for retention."

In early July the council completed its evaluations of the ten judges, and on July 15 it e-mailed the division its retention and rejection recommendations for inclusion in the election pamphlet. This July 15 e-mail included the council's recommendations regarding both Judge Jeffery and Judge Nolan. Because the council found both judges to be qualified, the council members unanimously recommended that they both be retained.³

The statutory deadline for filing judicial declarations of candidacy for retention with the division was August 1.⁴ Neither judge filed a declaration of candidacy with the division by that date.

On August 16 Judge Jeffery wrote a letter to the division requesting an extension of the filing deadline and enclosing his declaration of candidacy form. The letter stated that "I realize these documents are late." He had executed his declaration on August 16. On August 19 Judge Nolan wrote a letter to the division enclosing her declaration of candidacy form. Her letter stated that "[tloday it came to my attention that I failed to timely file the Declaration of Candidacy for the 2004 judicial retention election." She had executed her declaration on August 19. In response, the division informed Judge Jeffery it could not extend the deadline and informed Judge Nolan it would not place her name on the ballot.

The two judges then filed separate complaints seeking injunctive and declaratory relief. Each sought and obtained a temporary restraining order and preliminary injunction requiring the division to put their names on the 2004 ballot and to accept their submissions for the election pamphlet. In the November 2004 election both judges were retained by their respective electorates.

The judges' cases were consolidated and all parties moved for summary judgment. The superior court concluded that because both judges had substantially complied with the statutory filing requirements the division had abused its discretion in not placing their names on the ballot.

The state and the Director of the Division of Elections appeal.

III. STANDARD OF REVIEW

We review the superior court's grant of summary judgment de novo, drawing all factual inferences in favor of, and viewing the facts in the light most favorable to, the non-prevailing party.⁵ Questions regarding the interpretation and application of a statute are questions of law to which we apply our independent judgment.⁶ If the question of law involves agency expertise, however, we will apply the rational basis test and defer to the agency's interpretation as long as it is supported by the facts and has a reasonable basis in law.⁷ A "statutory construction adopted by those responsible for administering a statute should not be overruled in the absence of weighty reasons."⁸

We interpret the Alaska Constitution and the Alaska Statutes "according to reason, practicality, and common sense, taking into account the plain meaning and purpose of the law as well as the intent of the drafters." ⁹

IV. DISCUSSION

A. Judge Jeffery and Judge Nolan Did Not File Declarations of Candidacy by the Statutory Deadline.

Alaska Statute 15.85.070 provides: "[elach judge seeking retention in office shall file with the director a declaration of candidacy for retention no later than August 1 before the general election at which approval or rejection is requisite." ¹⁰ Alaska Statute 15.35.110 provides: "[elach district judge seeking retention in office shall file with the director a declaration of candidacy for retention no later than August 1 before the general election at which approval or rejection is requisite." ¹¹ The "director" means the "director of elections." ¹² The Division of Elections concluded that Judge Jeffery failed to comply with AS 15.35.070 and that Judge Nolan failed to comply with AS 15.35.110. The question here is whether that conclusion is correct.

The judges raise two main arguments on appeal. First, they argue that they strictly, and not just substantially, complied with the August 1 filing deadline by virtue of the June 8 and July 15 communications between the council and the division. Alternatively, they argue that we should apply the substantial compliance standard to judicial retention election filing deadlines and hold that they substantially complied with the August 1 deadline when they filed their declaration of candidacy forms in mid-August. We address these arguments in turn.

1. The June 8 and July 15 communications between the council and the division were not the judges' declarations of candidacy.

The superior court found that both judges failed to "supply the Division with a formal statement declaring their candidacy." It nevertheless concluded that the judges met their statutory filing obligation because "Itlhe documents filed with the Division in the context of the judges' performance of other mandatory acts constituted" substantial compliance with the requirements of AS 15.35.070 and .110. On appeal Judge Jeffery and Judge Nolan do not argue that the two communications the council sent to the division on June 8 and July 15 merely substantially complied with the statutory requirements; they instead argue that those communications strictly complied with the statutory requirements.

They argue that because the Election Code, Title 15 of the Alaska Statutes, does not define "declaration of candidacy," we must interpret that phrase in accordance with its commonsense meaning. They argue further that the June 8 and July 15 communications between the council and the division qualify as declarations of candidacy under this commonsense definition because the communications "clearly relayed to the Division the fact that these judges had told the Council that they personally had declared their candidacy for retention." Their argument contains two contentions. First, that the judges "unambiguously declared their candidacy" to the council by completing the council's questionnaire. Second, that in its June 8 and July 15 e-mails, the council "unambiguously advised the Division that [Judge Jeffery and Judge Nolan] had stated their intent to stand for retention." The judges reason that the council's two communications are "declarations of candidacy" because each communication contained all the requisite information.

The Judiciary Article of the Alaska Constitution specifies that every superior court judge shall be subject to a retention vote in the first general election held more than three years after appointment and every sixth year thereafter.¹³ It also states that a superior court judge's office becomes vacant ninety days after an election for which the judge fails to file a "declaration of candidacy" to succeed himself or herself.¹⁴ The framers of the constitution left the "details of such declaration such as its form and the time limits for its filing" to the legislature.¹⁵

In response, the legislature established identical requirements for declarations of candidacy at every level of the judicial system: each judge must "file with the director [of the division] a declaration of candidacy for retention no later than August 1 before the general election at which approval or rejection is requisite." ¹⁶ The legislature only authorized the division to place on the ballot the names of judges who "properly filed a declaration of candidacy for retention."¹⁷ But other than requiring judges to designate the district in which they will seek retention,¹⁸ the statutes are silent with regard to what substance a filing must have to be considered a judge's "declaration of candidaCy.”

That the legislature provided little guidance to the division as to whether a given communication qualifies as a "declaration of candidacy" necessarily grants the division a certain degree of discretion in making that determination. In other words, whether a given filing satisfies the statutory requirement that each judge file with the director a declaration of candidacy is a question that involves the division's expertise.¹⁹ We will defer to an agency's interpretation of a question of law that involves agency expertise so long as the interpretation is supported by the facts and has a reasonable basis in law.²⁰ Here, the division did not consider the June 8 or -July 15 communications by the council to be the judges' declarations. of candidacy. The judges argue and the superior court concluded that this was an abuse of the division's discretion. But because its determination was supported by the facts and had a reasonable basis in law, the division is entitled to deference for both its interpretation of the constitution and the applicable statutes and for its application of the law to the cireumstances presented in this case.

As Judge Jeffery and Judge Nolan observe, the Election Code does not define the term "declaration of candidacy." Because these words have not "acquired a peeu-lar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage." ²¹ Black's Law Dictionary defines a declaration as "[al] formal statement, proclamation, or announcement, [especially] one embodied in an instrument."²² Webster's Dictionary similarly defines a declaration as "a formal statement; proclamation." ²³ Further, the Election Code refers to the declaration as something that each judge shall "file," ²⁴ which Black's Law Dictionary defines as a verb meaning "[to deliver a legal document to the court clerk or record custodian for placement into the official record." ²⁵

The division contends that the phrase "declaration of candidacy" refers to a document that, at a minimum, must "contain a personal, affirmative declaration of the judge to be a candidate." We defer to this definition because it comports with common usage of the terms "file" and "declaration." The superior court's conclusion that both judges failed to "supply the Division with a formal statement declaring their candidacy," if correct, would therefore be fatal to the judges' argument that they filed "declarations of candidacy."

The superior court's conclusion in this regard appears to be supported by the evidence. The two documents that the judges claim qualify as their declarations are an emailed address list of judges sent by the council to the division on June 8 and the council's recommendations regarding the ten judges (some of whom had already filed their declarations of candidacy with the division), sent on July 15. Neither communication expressly declared that either Judge Jeffery or Judge Nolan held a present intent to stand for retention. Neither communication indicated that it was being made for the purpose of conveying any such intent or for the purpose of satisfying AS 15.85.070 and AS 15.35.110. Neither communication referred to the declaration statutes at all, and the July 15 e-mail referred instead to the "Council's contribution to the voter pamphlet," a subject governed by a different statute and a different deadline. Neither communication indicated that the council was discharging any duty imposed on either judge to communicate with the division, or that the judges had given the council permission to do so. The council's purpose for the communications was most obviously to satisfy the council's own constitutional and statutory obligations; ²⁶ nothing implied a purpose of satisfying the candidates' own obligations to the division. And if the council had actually also intended to satisfy the declaration statutes, one would expect the council's communications to have expressly invoked the declaration statutes and mimicked the operative statutory language. The meticulous care the council took in informing these judges of their duty to file a declaration with the division by August 1 is inconsistent with reading the two communications to be those declarations.²⁷

The division's determination that the judges failed to file declarations of candidacy is a reasonable interpretation of the constitutional and statutory requirements and is supported by the facts. It was therefore error for the superior court to conclude that the division abused its discretion in determining that the council's two communications did not qualify as the judges' declarations of candidacy.²⁷

To the extent the judges and the dissent seem to argue that the judges "declared" their candidacies by responding to the council's evaluation in November 2003, we are unpersuaded. The controlling statutes require that the declarations be filed with the division of elections, not with the judicial council.

We are also unconvinced by the dissent's contention that the council's evaluations can be considered to be declarations of candidacy and that "since the Council is obligated by law to act on and inform the Division of the judge's declaration, a judge who submits an official declaration of candidacy to the Council meets the burden of making an affirmative declaration no less effectively than by submitting it directly to the Division." ²⁸ First, it fruitlessly confuses the inquiry, and the relevant terminology, to say that a judge submitted a "declaration" to the council. A response to the questionnaire is no "declaration" within the meaning of the controlling statutes. Nothing requires or permits a judge to submit a "declaration" of any sort to the council, much less a declaration satisfying the two declaration statutes at issue here. Moreover, because we hold in Part IV.A2 that AS 15.35.070 and AS 15.35.110 require strict compliance, even if we assume that the council could satisfy the declaration statutes, it certainly could do so only if it indeed filed a "declaration" satisfying the division, and presumably only after the judges gave it authority to do so. The council, by performing its own specified duties, has no implicit or explicit incidental authority or responsibility to convey declarations of candidacy to the division. And, as we will see in the next part of our discussion, there is no evidence in this case contemporaneous with the filing deadline that suggests the candidates had given the council authority to declare their candidacies, or that they thought the council's communications with the division had relieved them of their duty to file declarations of candidacy with the division.

2. Strict compliance with the filing deadline is required.

The judges also argue that, even if we hold that the June 8 and July 15 communications did not satisfy the statutory requirements, we should affirm the superior court on the alternative ground that judicial retention candidates need only substantially comply with election filing deadlines. The judges argue that strict compliance is only appropriate with regard to non-judicial candidates because they have to supply much more information than their judicial counterparts, presumably because information about judges is already available in the public ree-ords. They also point out that strict compliance is justified in the political arena because it prevents potential "gamesmanship," by which a candidate could otherwise wait until the last minute to decide to run after first seeing who else filed. This concern does not carry over to judicial retention elections because judicial candidates are unopposed.

The judges substantially complied with the August 1 deadline, they argue, when they filed their declaration of candidacy forms with the division in mid-August. The judges argue that those filings substantially complied with the deadline because the division "was not hampered in its preparations for the election" since the council had previously provided the necessary information. Further, they contend that although their mid-August filings were after the deadline, they were filed "comfortably before the Division's deadlines for printing ballots and election pamphlets."

"[Where the election statutes fix a date for filing petitions or certificates of candidacy, such documents must be filed before the expiration of the time fixed, and [the] election officials may not exercise any discretion in the matter."²⁹ In Falke v. State we stated that it is "well established, both in Alaska and in other jurisdictions, that election law filing deadlines are to be strictly enforced. Strict compliance is the rule, and substantial compliance the rare exception." ³⁰ Because filing dates are mandatory, "substantial compliance is not sufficient, absent substantial confusion or 'impossibility.' ³¹

Thus far we have permitted substantial compliance with an election filing deadline in only one case. In Silides v. Thomas, the candidate did not strictly comply with the deadline for filing his financial disclosure statement.³² 'We held that the election statutes that required Silides to simultaneously file his financial disclosure statement in Anchorage and his declaration of candidacy in Juneau were inherently unclear and impossible to comply with.³³ Because of the "lack of clarity inherent in" the statute and "the impossibility of compliance," we departed from the "normally salutary doctrine that election deadlines must be strictly construed and strictly enforced" and held that substantial compliance was sufficient.³⁴ In Division of Elections v. Johnstone, we did not rely on a substantial compliance theory, but we allowed Judge Johnstone to remain on the bench even though he failed to file his declaration of candidacy by the deadline.³⁵ We excused Judge Johnstone's failure to timely file his declaration of candidacy because we concluded that the Alaska Constitution was ambiguous with regard to when he was required to stand for retention.³⁶ Judge John-stone was not given any special treatment, however, because of his status as a judge. He was effectively given the same treatment as Silides, a non-judge.

In both Silides and Johnstone, we did not require strict compliance. But in both cases we held that statutory or constitutional ambiguity, and not a candidate's oversight, justified departure from the strict compliance standard.³⁷ Because the August 1 declaration deadlines cannot reasonably be considered ambiguous or impossible to comply with, there is no justification for departing from the strict compliance standard here.

The dissent may reason that the statutory retention process was confusing or that the statutes were somehow ambiguous.³⁸ There is no ambiguity in the clear language of AS 15.85.070 or AS 15.85.110 or in any of the procedures. There is no basis for importing a substantial compliance factor into their text.

As confirmation of that proposition, it is clear that no one was confused in June or July, or before August 19, 2004, or had any doubt about what the declaration statutes required. On June 9 the division sent the two judges letters stating "you have not yet filed for judicial retention.... August 1 is the deadline to file for judicial retention." In comparison, the division sent different letters to those judges who had filed a declaration; those letters stated "you have filed for retention." On July 15, the same day the council sent its July 15 e-mail to the division, the council also sent a memo to the ten judges, explaining both the duty to file a timely declaration and the consequences of failing to file on time:

In order to continue as a judge past next January, state statutes require you to file with the Director [of Elections] a declaration of candidacy ... no later than August 1.... If you do not file this declaration of candidacy with the Director of Elections on or before August 1, your name will not appear on the ballot this fall and your term as judge will end ninety days after the election.

This message unambiguously conveyed the clear statutory requirements and consequences. Given this message from the council to the judges, neither the council nor the judges could have thought any communication between the council and the division could satisfy the declaration statutes. And on August 16, 2004, when Judge Jeffery submitted his declaration of candidacy to the division, he stated in his accompanying letter "I realize these documents are late." On August 19, 2004, when Judge Nolan submitted her declaration of candidacy, she stated in her letter "(today it came to my attention that I failed to timely file the Declaration of Candidacy." These communications are inconsistent with any notion that the statutes or the procedures were ambiguous or confusing or that the council or reasonable persons could have thought that communication by the council with the division would relieve or had relieved the judges of their statutory duty to file declarations of candidacy with the division.

Furthermore, the declaration statutes effectively require a candidate to communicate to the division the candidate's current intention to stand for retention. The August 1 deadline chosen by the legislature is late enough in the election sequence that it provides an accurate declaration of each candidate's current intentions, unlike anything that might be inferred from whatever the judge may have told the council the prior November, before the evaluation process began.³⁹ Likewise, the August 1 declaration deadline allows jurists previously interested in retention to silently drop out before publication of any adverse evaluation by the council or adverse information from the Judicial Conduct Commission.⁴⁰ This might explain why the legislature adopted the August 1 deadline for declaring candidacy for retention ⁴¹ and the August 7 deadline for submitting information for inclusion in the election pamphlet.⁴²

A substantial compliance standard is thus inconsistent with both the text of the controlling declaration statutes and with the way the division, the council, and even the judges interpreted the declaration statutes on or before August 19, 2004.⁴³

B. The Judges Must Vacate Their Seats Within Ninety Days.

Having determined that the judges failed to file declarations of candidacy by the statutory deadline, we now consider the appropriate remedy. The superior court concluded that the forfeiture sanction would be inappropriate. It reasoned that because it had found that the judges' "filing snafus" would not impact the election process, the hardship that vacation would cause on both the judges personally as well as the "constitutional retention election system and the electorate" would be too severe.

On appeal Judge Jeffery and Judge Nolan argue that, under Johnstone,⁴⁴ we should weigh the hardship of our remedy on the judges and on the electorate against the hardship caused to the public from the judges' failure to timely file their declarations of candidacy. They note the personal hardship that would be imposed on them if they were required to forfeit their offices. More importantly, they argue, the public was unharmed by their actions because it had ample time to consider whether to support or oppose their candidacies. They observe that the council: (a) treated the judges as candidates when it conducted surveys in early 2004, (b) held a public hearing on the judges in May 2004, (c) issued a press release announcing that it supported the judges' retention on July 26, and (d) listed the judges as candidates on its website "many months before the election."

The constitution states in part that a superior court judge's office "becomes vacant ninety days after the election ... for which he fails to file his declaration of candidacy to succeed himself."⁴⁵ The legislature mirrored this wording when it enacted the two statutes that regulate when a superior court or district court judge's office becomes va-cant.⁴⁶ We interpret the Alaska Statutes "according to reason, practicality, and common sense, taking into account the plain meaning and purpose of the law as well as the intent of the drafters." ⁴⁷ The plain meaning of the constitution and the statutes is that vacation is the mandatory consequence for a judge's failure to file a declaration of candidacy.

Johnstone can be differentiated from this case. In Johnstone we held that we were establishing a new principle of civil law.⁴⁸ We therefore analyzed the hardship to Judge Johnstone and the electorate to determine whether our holding should only apply prospectively.⁴⁹ If our holding had not established a new principle of law, however, in the sense that it had not "overrule[d]) prior law or decide[d] an issue of first impression," the threshold test for prospective application would not have been met ⁵⁰ and our analysis of the hardship of our holding would not have been triggered.

Here, the law is clear that, absent statutory ambiguity, strict compliance with election filing deadlines is required,⁵¹ and the penalty for noncompliance is mandatory vacation of office.⁵² We have no doubt that requiring Judge Jeffery and Judge Nolan to vacate their office will lead to personal hardship. This must seem like a bitter reward for years of extraordinary public service by both judges. But because we are not establishing a new principle of law by holding that the judges' failure to meet the filing deadline triggered the mandatory vacation sanction, our decision is constrained by the controlling legal principles. It was error to rule that the hardship to the judges and electorate precluded application of the forfeiture sanction.⁵³

v. CONCLUSION

Because the division's determination that Judge Jeffery and Judge Nolan failed to file declarations of candidacy by the August 1 deadline was supported by the facts and had a reasonable basis in law, we REVERSE the superior court's judgment and ORDER the appellees to vacate their seats within ninety days after this opinion takes effect per Alaska Appellate Rule 507(b).⁵⁴

FABE, Chief Justice, not participating.

1 . Alaska Const. art. IV, § 6 ("[elach supreme court justice and superior court judge shall, in the manner provided by law, be subject to approval or rejection"); AS 15.35.030 ("[elach supreme court justice shall [periodically] be subject to approval or rejection"); AS 15.35.053 ("{elach judge of the court of appeals shall [periodically] be subject to approval or rejection"); AS 15.35.060 ("[eJach superior court judge shall [periodically] be subject to approval or rejection"); AS 15.35.100 ("[eJach district judge shall [periodically] be subject to approval or rejection").

2 . AS 22.10.150 (regarding superior court judges); AS 22.15.195 (regarding district court judges).

3 . The scores on the Judicial Council's retention survey were consistently very high for both judges. Judge Jeffery's overall average score was 4.3 and Judge Nolan's overall average score was 4.4.

4 . AS 15.35.070 (regarding superior court judges); AS 15.35.110 (regarding district court judges).

5 . Lewis v. State, Dep't of Corr., 139 P.3d 1266, 1268-69 (Alaska 2006).

6 . Catholic Bishop of N. Alaska v. Does 1-6, 141 P.3d 719, 722 (Alaska 2006).

7 . W. States Fire Prot. Co. v. Municipality of Anchorage, 146 P.3d 986, 989 (Alaska 2006) (citing Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987)).

8 . Storrs v. State Med. Bd., 664 P.2d 547, 552 (Alaska 1983) (internal quotations omitted).

9 . Native Vill. of Elim v. State, 990 P.2d 1, 5 (Alaska 1999).

10 . AS 15.35.070.

11 . AS 15.35.110.

12 . AS 15.60.010(3).

13 . Alaska Const. art. IV, § 6. AS 15.35.100(a) imposes the same requirement on district court judges, except that it provides that district court judges must stand for retention in the first general election held more than two years after their appointment and every fourth year thereafter.

14 . Alaska Const. art. IV, § 7 ("The office of any supreme court justice or superior court judge becomes vacant ninety days after the election at which he is rejected by a majority of those voting on the question, or for which he fails to file his declaration of candidacy to succeed himself."); see also AS 22.15.170(e) (applying same consequences to district court judges who fail to file declarations of candidacy).

15 . 6 Proceedings of the Alaska Constitutional Convention (PACC) App. V at 13 (December 5, 1955).

16 . AS 15.35.040 (regarding supreme court justices); AS 15.35.055 (regarding court of appeals judges); AS 15.35.070 (regarding superior court judges); AS 15.35.110 (regarding district court judges).

17 . See, eg., AS 15.35.090 ('The director shall place the name of a superior court judge who has properly filed a declaration of candidacy for retention on the ballot...."); AS 15.35.130 ("The director shall place the name of a district judge who has properly filed a declaration of candidacy for retention on the ballot. ...").

18 . AS 15.35.080 (regarding superior court judges); AS 15.35.100(b) (regarding district court judges).

19 . Judge Jeffery and Judge Nolan concede that "[uJnquestionably, the Division of Elections has the authority to exercise certain discretion in administering the election statutes."

20 . W. States Fire Prot. Co. v. Municipality of Anchorage, 146 P.3d 986, 989 (Alaska 2006) (citing Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987)).

21 . Div. of Elections v. Johnstone, 669 P.2d 537, 539 (Alaska 1983) (citing State v. Debenham Elec. Supply Co., 612 P.2d 1001, 1002 (Alaska 1980); Lynch v. McCann, 478 P.2d 835, 837 (Alaska 1970); AS 01.10.040 (providing in part: "Words and phrases shall be construed according to the rules of grammar and according to their common and approved usage.")).

22 . Black's Law Dictronary at 436 (8th ed.2004).

23 . Webster's New World College Dictionary at 375 (4th ed.2004).

24 . AS 15.35.070 (regarding superior court judges); AS 15.35.110 (regarding district court judges).

25 . Black's Law Dictionary at 660 (8th ed.2004); Silides v. Thomas, 559 P.2d 80, 88 (Alaska 1977).

26 . Alaska Const. art. IV, § 9 (stating that the council must perform duties assigned by law); AS 22.10.150 (requiring the council to "conduct an evaluation of each [superior court] judge before the retention election and shall provide to the public information about the judge ... 60 days before the retention election"); AS 22.15.195 (requiring the council to "conduct an evaluation of each [district court] judge before the retention election and shall provide to the public information about the judge ... 60 days before the election").

27 . Because we hold that the division did not abuse its discretion in determining that the judges failed to file declarations of candidacy, we do not need to decide whether the council could file a declaration of candidacy with the division on a judge's behalf.

28 . Dissent at 245.

29 . Falke v. State, 717 P.2d 369, 374 (Alaska 1986) (quoting Andrews v. Sec'y of State, 235 Md. 106, 200 A.2d 650, 651 (1964) (citation omitted)); see also Silides v. Thomas, 559 P.2d 80, 87 (Alaska 1977).

30 . Falke v. State, 717 P.2d 369, 373 (Alaska 1986) (citations omitted).

31 . State v. Marshall, 633 P.2d 227, 235 (Alaska 1981) (holding that declaration of candidacy filed ten minutes late was not "timely") (citing Silides, 559 P.2d at 86); see also Falke, 717 P.2d at 373 (substantial compliance standard improper unless statute ambiguous).

32 . Silides v. Thomas, 559 P.2d 80, 82 (Alaska 1977).

33 . Id. at 86.

34 . Id.

35 . Div. of Elections v. Johnstone, 669 P.2d 537, 542-45 (Alaska 1983).

36 . Id. at 544.

37 . Id.; Silides, 559 P.2d at 86.

38 . Dissent at 243, 245.

39 . The dissent contends that it is incorrect to assume "that the goal of a declaration requirement is to elicit a 'final decision,' rather than fust a clear declaration of present intent." Dissent at 247.

This contention is problematic. Whether or not a declaration is to be a "final decision," the statutes implicitly require a current decision, a present-day expression contemporaneous with the date it is filed. They seem inconsistent with conveying a stale decision, such as reflected in any information in the questionnaire responses sent to the council nearly eight months before. The dissent's contention may also assume that the council's communications with the division somehow amounted to a "clear declaration of present intent." But the July 15 communication is not a "declaration" at all. Nor is it a "clear" declaration, or a declaration of "present intent."

This contention also seems to depend on the council's discharge of its obligations in conducting and forwarding the evaluation results. The council's executive director explained in an affidavit filed in the superior court that "it would only be upon an affirmative statement by the judge that he or she did not intend to stand for retention that the judicial council would refrain from evaluating a judge who was required to stand for retention." Thus, the council would treat both a judge who altogether failed to respond to the November questionnaire and a judge who responded the same: It would evaluate both judges and forward the evaluation results for both to the division for inclusion in the election pamphlet. Therefore the council itself does not treat questionnaire responses as a declaration critical to triggering or discharging the council's duties.

40 . AS 22.30.011(h) (providing in relevant part that after a "judge has filed a declaration for candidacy for retention in office, the [Judicial Conduct Commission] shall report ... each public reprimand, suspension, or public censure received by the judge").

In selecting the August 7 deadline it seems improbable that the legislature intended that by supplying the evaluation and conduct information for the election pamphlet by August 7, the council would have any role in satisfying the August 1 declaration obligation the legislature imposed on the candidates.

41 . AS 15.35.070 (requiring declaration by superi- or court judge by August 1); AS 15.35.110 (requiring declaration by district judge by August 1).

42 . AS 15.58.050 (providing in relevant part that "[nlo later that August 7 ... the judicial council shall file ... a statement including ... the evaluation of each justice or judge conducted by the judicial council ... [and al statement describing each public reprimand, public censure, or suspension").

43 . It is therefore unnecessary to consider whether the judges substantially complied with the declaration statutes. We nonetheless are unconvinced by any assertion that the judges substantially complied when the council conveyed the evaluation and conduct information on July 15. Not only must the division receive the critical information-a straightforward expression of the candidate's intent, held at the moment of filing, to stand for retention-but the requirement of a "declaration" implies some degree of formality beyond a message to be inferred from the council's submissions for inclusion in the election pamphlet.

44 . Div. of Elections v. Johnstone, 669 P.2d 537, 545-45 (Alaska 1983).

45 . Alaska Const. art. IV, § 7.

46 . AS 22.10.100(b) (regarding superior court judges); AS 22.15.170(e) (regarding district court judges).

47 . Native Vill. of Elim v. State, 990 P.2d 1, 5 (Alaska 1999).

48 . 669 P.2d at 544.

49 . Id. at 545-46.

50 . Commercial Fisheries Entry Comm'n v. Byayuk, 684 P.2d 114, 117-18 (Alaska 1984) ("[WJhether the holding overrules prior law or decides an issue of first impression{ ] serves as a threshold test to determine whether a purely prospective application of a new rule of law is even at issue.").

51 . See, e.g., Falke v. State, 717 P.2d 369, 373 (Alaska 1986); Silides v. Thomas, 559 P.2d 80, 86 (Alaska 1977).

52 . See Alaska Const. art. IV, § 7 (regarding superior court judges); AS 22.10.100(b) (regarding superior court judges); AS 22.15.170(e) (regarding district court judges).

53 . We note that although Judge Jeffery and Judge Nolan failed to timely file declarations of candidacy, the judgments they have issued or will issue in the interim period between when they were supposed to vacate their office {ninety days after the November 2004 election) and when they are now ordered to vacate (ninety days after this opinion takes effect per Appellate Rule 507(b)) are protected from collateral attack under the de facto judge doctrine. See Gates v. City of Tenakee Springs, 954 P.2d 1035, 1038-39 (Alaska 1998).

54 . Alaska Appellate Rule 507 provides:

(a) The opinion of the appellate court, or its order under Rule 214, shall constitute its judgment, and shall contain its directions to the trial court, if any. No mandate shall be issued.

(b) Unless the opinion or order expressly states otherwise, the judgment of the appellate court takes effect and full jurisdiction over the case returns to the trial court on the day specified in Rule 512(a) for return of the record. However, in an appeal under Appellate Rule 207 relating to release prior to judgment, the judgment of the Court of Appeals takes immediate effect and full jurisdiction over the case returns to the trial court on the day the Court of Appeals issues its opinion or order deciding the appeal.

(c) A motion to stay the effect of the judgment of the appellate court beyond the day specified in Rule 512(a) shall be made to that court.

Alaska Appellate Rule 512(a) provides in pertinent part:

(3) In a case decided by the supreme court, the record shall be returned:

[al on the day after the time for filing a petition for rehearing expires, if no timely petition for rehearing is filed; or

[b] on the day after the supreme court disposes of the case on rehearing, if a timely petition for rehearing is filed.