Requested by: William T. Cotton
On Behalf of: Alaska Judicial Council
Prepared by: Jenifer Kohout, Assistant Director
Date issued: February 27, 1997
Subject: Reporting requirements of a state agency under AS 15.13.145
This is in response to your request for an advisory opinion regarding the application of the new campaign disclosure law to the judicial retention duties of the Alaska Judicial Council (AJC).
Specifically, you seek confirmation that publication of AJC retention-related materials is permitted under the new law. Assuming that it is, you ask whether the AJC is required to file campaign disclosure reports.
Under the new law, "the state, its agencies, and its corporations" may not use state money to influence the outcome of an election. AS 15.13.145(a). The provision contains an exception for money used "to provide the public with nonpartisan information about . . . all the candidates seeking election to a particular public office." AS 15.13.145(c)(2). Because the money spent by the AJC to evaluate and inform the public about the suitability of all judges for retention is nonpartisan, educational and mandated by state law, those activities satisfy the exception.
The AJC, however, must now report that use. Consistent with AS 15.13.145(d), the AJC must file a statement of expenditures with the Commission within 10 days of making a campaign related expenditure over $250. AS 15.13.040(d).
Except as provided in (b) and (c) of this section, the state, its agencies, and its corporations may not use money held by the entity to influence the outcome of the election of a candidate to a state or municipal office.
AS 15.13.145(c )
Money held by an entity identified in (a) of this section may be used to provide the public with nonpartisan information about all the candidates seeking election to a particular public office.
Each judge is subject to approval or rejection as provided in AS 15 (Alaska Election Code). The judicial council shall conduct an evaluation of each judge before the retention election and shall provide to the public information about the judge and may provide a recommendation regarding retention or rejection. The council must provide the information to the public at least 2 months before the election and must ensure that the information is included in the official election pamphlet published by the office of the lieutenant governor.
When expenditure of money is authorized by (c) of this section and is used to influence the outcome of an election, the expenditures shall be reported to the commission in the same manner as an individual is required to report under AS 15.13.040.
Every individual, person or group making an expenditure shall make a full report, upon a form prescribed by the commission, of any expenditure whatsoever for advertising in newspapers or other periodicals, on radio, or on television; or for the publication, distribution, or circulation of brochures, flyers, or other campaign material for any candidate or ballot proposition or question.
The report required under (d) of this section shall contain the name, address, principal occupation and employer of the individual filing the report, and an itemized list of expenditures. The report shall be filed with the commission by the contributor no later than 10 days after the contribution or expenditure is made.
The campaign disclosure law passed by the legislature in 1996 contains a new provision, AS 15.13.145, which prohibits "the state, its agencies, and its corporations" from using money "to influence the outcome of the election of a candidate to a state or municipal office." The section, however, includes two exceptions. The second is relevant to the AJC. AS 15.13.145(c )(2) allows state-funded entities, like the AJC, to use their funds "to provide the public with nonpartisan information about . . . all the candidates seeking election to a particular public office."
Among other functions, the AJC plays a central role in judicial retention elections. State law directs the AJC to conduct an evaluation of each judge and provide the public with information about a judge prior the retention election. If it chooses, the AJC may make a recommendation regarding the retention or rejection of a judge. AS 22.05.100; 22.07.060; 22.10.150; 22.15.195. To inform the public, the AJC makes its evaluation materials available, purchases newspaper advertisements and operates a homepage. In addition, state law specifically requires that the AJC provide information to the Office of the Lieutenant Governor for inclusion in the official election pamphlet.
The Commission believes that the type of information the AJC provides to the public is nonpartisan, and is therefore permitted under AS 15.13.145. The Commission acknowledges that the AJCs evaluation and recommendation may influence the outcome of an election by inherently encouraging voters to act consistent with the AJCs conclusions. Rather than suggest partisanship, however, these actions are the direct result of the AJCs constitutional origins and statutory mandate.
The AJC itself is nonpartisan. It was established by article IV, section 8 of the Alaska Constitution. The Constitution requires that appointments to the Council are made on the basis of area representation, "without regard to party affiliation."
Further, the intent behind the AJCs statutory retention provisions is educational rather than partisan. The AJC is directed to gather information about each judge, compile that information, and provide it to the public so that voters may make an informed decision regarding retention. The information disseminated by the AJC provides the only consistent, relatively objective source of information about the suitability of judges for retention; in part because the Code of Judicial Conduct prohibits judges from campaigning on their own behalf except in limited circumstances. Expenditures for the purpose of disseminating this information to the public satisfy the exception in AS 15.13.145(c)(2).
Entities who qualify for the exception in AS 15.13.145, however, must report their expenditures to the Commission. AS 15.13.145(d) specifically requires that expenditures of money authorized by subsection (c) and used to influence the outcome of an election, must be "reported to the commission in the same manner as an individual is required to report under AS 15.13.040."
Under AS 15.13.040 and current Commission reporting requirements, an individual who makes an expenditure to influence the outcome of an election must file a statement of expenditure with the Commission within 10 days after the expenditure is made. AS 15.13.040(e) specifically states that the required expenditure report "shall be filed with the commission by the contributor no later than 10 days after the contribution or expenditure is made." As a result, AJC is required to report all expenditures it makes to influence the outcome of the election.
Although this opinion changes the Commissions previous holding that the AJC need not report, the change is necessary in light of the amendments to AS 15.13 which became effective on January 1, 1997.
Consistent with the new law, the AJC must file a statement of expenditures with the Commission within 10 days of making an expenditure to influence the outcome of the election.
The Commission approved this advisory opinion on February 27, 1997. The advice in this opinion applies only to the specific activity for which the advice was requested.
A copy of the original letter requesting the above advisory opinion is available upon request at the Alaska Public Offices Commission. (907) 276-4176.