Dansereau v. Ulmer

COMPTON, Justice,

dissenting in part.

I dissent from section III.B.2 of the court’s opinion. In that section the court reverses the trial court’s grant of summary judgment in the State’s favor on the issue of whether the TCC/Doyon/AEN postcard mailing violated AS 15.56.030(a)(2), even though Contestants never argued this issue on appeal. I would hold that the issue of whether the postcard mailing violated AS 15.56.030(a)(2) should not be considered, because Contestants failed to raise it.

In their brief, Contestants assert generally that “[t]he mailing [of the postcard] itself constitutes federal criminal violations under 18 U.S.C. section 597 , [and] 42 U.S.C. section 1973i(c). Additionally, it is a corrupt practice as defined in A.S. 15.20.540, A.S. 15.56.010, and A.S. 15.56.030.” Contestants then assert specifically a violation of AS 15.56.010, which requires the words “paid for by” on any communication intended to influence an election. Following this, Contestants focus entirely on 42 U.S.C. § 1973i(c), the so-called federal “cash for vote” prohibition. They cite federal cases and Federal Prosecution of Election Offenses (5th ed. 1988), which analyzes section 1973i(e).

Contestants never assert that the cash drawing announced in the postcard violates AS 15.56.030(a)(2), nor do they assert that the alleged federal law violation is a violation of AS 15.56.030(a)(2). Their general assertion, offered without elaboration, that “[t]he mailing ... is a corrupt practice as defined in ... A.S. 15.56.030” is the sum total of their argument on this issue. We require more than this under the waiver rule. See, e.g., Wirum & Cash Architects v. Cash, 837 P.2d 692, 713-14 (Alaska 1992) (“Where a point is not given more than a cursory statement in the argument portion of a brief, the point will not be considered on appeal.”).

The court notes, as one justification for addressing the purported violation of AS 15.56.030(a)(2), that the State “presented its position” on the issue. Op. at n. 15. While it is true that in its argument the State cites to AS 15.56.030(a)(2) — something Contestants never do — it only does so as part of its larger argument that the postcard mailing did not violate the “corrupt practice” provision of AS 15.20.540(3). Furthermore, the focus of the waiver rule is on whether the proponent of a point has raised and adequately briefed it. The State’s reference to AS 15.56.030(a)(2) did not relieve Contestants of their responsibility under the waiver rule to raise and brief the purported violation of that provision if they wished the court to consider it.

The other justification the court offers for addressing the AS 15.56.030(a)(2) issue is that, by doing so, it may prevent persons from “needlessly violating] the statute and jeopardizing] future elections.” Op. at n. 15. Yet, on the “two issues critical to determining whether distributing the postcard was a corrupt practice,” id., the court (1) declines to decide whether a cash-prize drawing is always an offer of a “valuable thing;” and (2) remands the case for a determination of whether AFN intended to influence voters to vote for a particular candidate. Op. at 569-70 and n. 16. The court announces no new principle of law, nor does it resolve any of the key legal issues arising under AS 15.56.030(a)(2); it simply holds that the trial court erred in granting summary judgment in the State’s favor on the AS 15.56.030(a)(2) issue. The court therefore does not accomplish what it sets out to do: In the future, a party contemplating a cash-prize drawing scheme will still not know whether such a scheme is permitted under AS 15.56.030(a)(2), and may therefore “needlessly violate the statute.”

I might be persuaded that a “public interest” exception to the waiver rule should be adopted, were the court to propose one. It may well be that litigants should not be deprived of review of issues relating to strong public policy, affecting the citizens of the state as a whole, simply because the issues have not been adequately raised by counsel. On the other hand, in this case the court has embraced once again the rule that “every reasonable presumption will be indulged in favor of the validity of an election,” citing Turkington v. City of Kachemak, 380 P.2d 593, 595 (Alaska 1963). If we are to indulge every reasonable presumption in fa *574 vor of the validity of the election, the failure of the Contestants to raise the AS 15.56.030(a)(2) issue must constitute a waiver of that issue.

The court’s resolution of the AS 15.56.030(a)(2) issue is troublesome for reasons other than that it cannot be said fairly that the issue was raised by Contestants. First, the court provides virtually no guidance to the superior court on how to address the issue on remand. For example, the court does not declare whether the intent to induce is to be determined by applying an objective or a subjective standard.

Second, the court holds that “there is no genuine dispute regarding the value of the offer the postcards transmitted in this case,” Op. at n. 16, without any evidence in the record that the cash drawing at issue is a valuable thing to the target voting group. The court rests its holding on the assumption that “[ajlthough the actual value of a chance to win one thousand dollars is potentially small, depending upon the number of drawing entrants, the perceived value of the chance to win a one thousand dollar drawing may be considerably higher in the eyes of potential participants.” Id. In deciding previous election contests, we have relied on expert testimony or other evidence, rather than mere conjecture, to determine whether election laws were violated. See, e.g., Boucher v. Bomhoff, 495 P.2d 77, 81 (Alaska 1972) (voiding vote on constitutional convention referendum; decision based in part on expert testimony that the misleading ballot language biased voters). Today the court strays from this practice, and bases its holding that the drawing offered a valuable thing on nothing more than its own sense of what the drawing participants may have perceived.

After holding that there can be no genuine dispute that the cash drawing in the present case was an offer of a valuable thing, the court states, as previously noted, that it need not decide whether a cash drawing is always an offer of a valuable thing. Op. at n. 16. If the court is not prepared to say that a cash drawing is always an offer of a valuable thing, how can it say, without supporting evidence, that the cash drawing in this case is an offer of a valuable thing? If a cash drawing is not always an offer of a valuable thing, then the question must be factual. If so, its resolution should be left to the trial court.

This is the mischief played when courts take it upon themselves to address issues to which the litigants have paid scant, if any, attention. When there are no criteria to guide a court in addressing an issue not raised by the litigants, “the decision whether a litigant gets a new trial becomes wholly arbitrary.” Clark v. Greater Anchorage, Inc., 780 P.2d 1031, 1039 (Alaska 1989) (Compton, J., dissenting in part).

Contestants have not raised a claim that the postcard mailing violated AS 15.56.030(a)(2). Their sweeping assertion that the mailing constituted a corrupt practice under AS 15.56.030 does not ever address subsection (a)(2). They have failed utterly to argue that the cash drawing was “money or [an]other valuable thing” offered “with the intent to induce the [voter] to vote for or refrain from voting for a candidate.” Because they have failed to argue this point, the court should not consider it. I would affirm the judgment of the superior court.