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Lake & Peninsula Borough Assembly v. Oberlatz

Supreme Court of Alaska

July 11, 2014

LAKE & PENINSULA BOROUGH ASSEMBLY, Appellant,
v.
DANIEL W. OBERLATZ, RAYMOND "SONNY" PETERSEN, JOHN HOLMAN, JOHN C. GILLAM, and ROBERT B. GILLAM, Appellees. DANIEL W. OBERLATZ, RAYMOND "SONNY" PETERSEN, JOHN HOLMAN, JOHN C. GILLAM, and ROBERT B. GILLAM, Appellants,
v.
LAKE & PENINSULA BOROUGH ASSEMBLY, and, in their individual and official capacities, Borough Mayor GLEN ALSWORTH, SR., Borough Assembly Members LORENE " SUE" ANELON, LYNN CARLSON, MYRA OLSEN, and RANDY ALVAREZ, and Borough Clerk KATE CONLEY, Appellees

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[Copyrighted Material Omitted]

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Appeal from the Superior Court of the State of Alaska, Third Judicial District, Dillingham, John Suddock, Judge. Superior Court Nos. 3DI-11-00023 CI and 3AN-11-12385 CI (Consolidated).

Gary A. Zipkin, Guess & Rudd P.C., Anchorage, for Appellant/Appellee Lake and Peninsula Borough and Appellees Alsworth, Anelon, Carlson, Olsen, Alvarez, and Conley.

Timothy A. McKeever and Scott Kendall, Holmes Weddle & Barcott, P.C., Anchorage, for Appellees/Appellants Oberlatz, Petersen, Holman, J. Gillam, and R. Gillam.

Before: Winfree, Stowers, and Bolger, Justices. Fabe, Chief Justice, and Maassen, Justice, not participating.

OPINION

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WINFREE, Justice.

I. INTRODUCTION

Five voters each maintain a home in a borough and a home outside that borough. Two of the voters voted in the borough's 2010 election. All five voters voted in the borough's 2011 election. Although each voter was registered to vote in the borough, the borough's canvassing committee rejected the voters' ballots in each election on the ground that the voters were not borough residents. The voters appealed to the superior court and asserted direct claims against the borough and a number of borough officials in their official and individual capacities. The court ruled that the voters were borough residents and legally qualified to vote in the 2010 and 2011 borough elections, and that the voters shall remain eligible to vote in future borough elections absent substantial changes in circumstances. The court denied the voters full reasonable attorney fees against the borough under AS 09.60.010(c), concluding that they did not bring constitutional claims, but awarded them partial attorney fees under Alaska Civil Rule 82. The court also awarded partial attorney fees under Rule 82 to the individual defendants against whom claims had been previously dismissed on immunity grounds.

The borough appeals the merits of the residency determinations and the voters appeal the attorney fees awards. We affirm the superior court's decisions that the voters were borough residents and eligible to vote in the 2010 and 2011 borough elections, but vacate the order that the voters are automatically eligible to vote in future elections. We reverse the superior court's determination that the voters did not bring constitutional claims covered by AS 09.60.010(c), and remand for new attorney fees determinations.

II. FACTS AND PROCEEDINGS

A. The Voting

The Lake and Peninsula Borough is a home rule borough located in southwest Alaska. Borough elections are conducted by mail, with ballots mailed to those voters registered with the State of Alaska to vote in the

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Borough. The Borough Clerk reviews returned ballots for compliance with election requirements. The Clerk separates (i.e., challenges) ballots mailed to and returned from addresses outside the Borough for individual review by the Borough's Canvassing Committee (Committee).

In the 2010 Borough election, the Clerk challenged the ballots of Robert Gillam and Daniel Oberlatz because they were mailed to and returned from addresses outside the Borough. Based on public records listing Oberlatz's and Robert Gillam's residential addresses in Anchorage, the Committee unanimously voted to affirm the challenges on the ground that Oberlatz and Robert Gillam were not Borough residents and therefore not eligible to vote in the election. Oberlatz appealed the Committee's decision to the Borough Assembly (Assembly), which denied the appeal.[1]

In the 2011 Borough election, the Clerk challenged the ballots of Robert Gillam, John Gillam, John Holman, and Raymond " Sonny" Petersen because they were mailed to and returned from addresses outside the Borough. The Committee sua sponte challenged Oberlatz's ballot based on its 2010 determination of Oberlatz's non-residency. After reviewing the voters' addresses in public records and hearing testimony about their residencies, the Committee sustained the challenges to all five voters' ballots. The voters appealed to the Assembly. Based on information from the voters' sworn affidavits, their attorney's testimony, and the Committee, the Assembly unanimously denied each appeal.

B. The Voters' Individual Backgrounds

1. Robert Gillam

Robert Gillam built his first home in the Borough in 1984. He and his family currently own and spend considerable time in a family home in the Borough. He also lives in a house in Anchorage, where his business has an office, for over six months per year. He registered to vote in the Borough in February 2010. Before that time, he was registered to vote in Anchorage and considered himself an Anchorage resident.

2. John Gillam

John Gillam lived in his family's Anchorage home as a child and attended school there. He spent considerable time at his family's home in the Borough where he still has his own room and personal effects. He registered to vote in Anchorage when he turned 18 and voted there regularly until he changed his registration to the Borough in 2011. He went to college outside Alaska, began graduate school in Dublin, Ireland in 2010, and accepted short-term employment in Zug, Switzerland, where he lives. He spent about 15 to 16 days in the Borough in both 2010 and 2011, but did not visit the Borough in 2012.

3. John Holman

John Holman lived year-round in the Borough until he was seven years old, after which he spent summers at his father's lodge in the Borough. He purchased his father's lodge in 2007 and lives in a home at the lodge from May through October. He returns to his house outside the Borough during the winter months. He was registered to vote in the Palmer-Wasilla area until 2011, but changed his registration to the Borough in 2011 because he considers the Borough to be his home and because he wanted to be eligible to vote on the Save Our Salmon Initiative on the municipal ballot.

4. Daniel Oberlatz

Daniel Oberlatz moved to the Borough in May 1995 and established a business there. Around 2005 he purchased a house in Palmer for his wife and children to live in. At that time he owned two houses in the Borough: his personal residence and his business base. He sold the personal residence in 2008, around which time his wife and children moved to Anchorage from Palmer. He uses the business base, which is owned by his

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company, as his home when he is in the Borough. He spends 30 to 90 days per year in the Borough for work and recreation, and the remainder of the year in Anchorage. He and his wife recently purchased land in the Borough on which they plan to build a larger family home. He registered to vote in the Borough in ...


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