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Keri-Ann Baker

Thomas P. Amodio

kbaker@

tom@

Attorneys for Plaintiff

IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

THIRD JUDICIAL DISTRICT AT ANCHORAGE

THOMAS STROOZAS, )

)

Plaintiff, )

v. )

)

CITY OF HOMER and the HOMER )

CITY COUNCIL, ) Case 3AN-19-10977 CI

)

Defendants. )

)

MEMORANDUM IN SUPPORT OF MOTION FOR TEMPORARY

RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION

This case involves constitutional rights of the highest order—the right to vote, and to have one’s vote counted.[1] It also involves the companion right, equally important, to have representation in government by a person of one’s choice.[2] Revolutions have been fought over such rights.

Plaintiff Tom Stroozas (“Stroozas” or “Plaintiff”) and other voters in the City of Homer (“City”) election for the City of Homer City Council (“Council” or “City Council”) on October 1, 2019, cast their votes in favor of four candidates seeking election: Joey Evenson, Storm Hansen-Cavasos, Shelly Erickson, and the Plaintiff, Tom Stroozas. Evenson won 33% of the popular vote, Hansen-Cavasos won 24% of the popular vote, Erickson won 24% of the popular vote and Stroozas won 18% of the popular vote. Hansen-Cavasos received 663 votes and Erickson received 656 votes.

On October 4, 2019, the City’s Election Canvas Board held a meeting where it certified the October 1, 2019 election results.[3] On October 14, 2019, the Council certified the results of the election. Prior to the Council’s certification of the election results, Plaintiff filed a contest of the election results challenging the eligibility of Hansen-Cavasos. Despite the Plaintiff’s protest and the evidence included in it, the certification proceeded and seated a candidate that was ineligible to sit for the election. Stroozas and other residents of the City are entitled to elect an eligible candidate of their choosing. Stroozas is therefore entitled to an order directing the Homer City Clerk to swear in the next eligible candidate with the highest percentage of the votes. The City must obey the law which it failed to do when it seated ineligible candidate, Hansen-Cavasos on the City Council.

RELEVANT FACTS

On August 8, 2019, before the deadline for registering as a candidate, Hansen-Cavasos filed the necessary declarations or other documentation to appear as a candidate for the City Council on the ballot for the October 1, 2019 City of Homer election.[4] Defendant City of Homer accepted the candidate filings of Hansen-Cavasos and determined that she was qualified to run in the election for the City Council. Although the Homer City Clerk is charged under the § 4.10.040 of the Homer City Code with determining whether candidates are qualified prior the election, historically the Clerk has not performed an independent investigation into a candidate’s filings. Instead the Clerk has relied on the sworn statements of the candidates. Based solely the statements in her Declaration of Candidacy, Hansen-Cavasos appeared on the ballot as a candidate for the City of Homer City Council in spite of the fact that she had not met the one-year durational residency requirement required by law.

In conjunction with the certification of the election results on by the Council on October 14, 2019 the Council seated Evenson and Hansen-Cavasos as the winners of the election.[5] Ineligible candidate, Hansen-Cavasos received 7 more votes than eligible candidate Erickson.[6] Hansen-Cavasos was certified and seated despite being ineligible to run since she had not resided within the City boundaries for one year immediately prior to the election. In certifying the election and seating an ineligible candidate to the City Council, the City has failed to apply its own code and ordinances and denied eligible candidates from serving as the duly elected representatives of the voters in the City.

ARGUMENT

Stroozas, and other City of Homer voters, will be irreparably harmed because an ineligible candidate was seated instead of the eligible candidate with the second highest number of votes. The City’s conduct would therefore deny these voters their constitutional right to vote and the guarantees of a representative form of government. In contrast to the irreparable harm to Stroozas and the voters, the City will suffer at most negligible inconvenience by being required to swear in and seat the next eligible candidate.[7] Accordingly, Stroozas is entitled to an order directing the City and the City Council to swear in and seat Erickson on the City Council.

To be eligible as a candidate Hansen-Cavasos must have been a resident of the City for at least one year. “A person is eligible for the office of City Council…if the person is a voter of the City as prescribed by HCC § 4.05.010 and has been a resident within the City for a period of one year immediately preceding the election day on which the person is a candidate.”[8]

Concerns related to Hansen-Cavasos’ ineligibility to serve on the City Council surfaced almost immediately. On October 7, 2019, Stroozas timely filed an election contest as provided for in the Homer City Code. The election contest averred that Hansen-Cavasos was not legally qualified as a candidate for City Council because Hansen-Cavasos had not been a resident of the City for at least one year immediately preceding the October 1, 2019 election as required by law.[9] The election contest filed by Stroozas also contained substantial evidence clearly demonstrating that Hansen-Cavasos had maintained a residence outside the city limits of Homer until approximately one month prior to the election date. Despite serious questions being raised as to the validity of Hansen-Cavasos’ eligibility the Homer City Council seated both Evenson and Hansen-Cavasos. Moreover, Hansen-Cavasos was seated, prior to the completion of an adequate investigation into her residency. Although the City is not necessarily required to investigate every allegation made against a candidate, given extent and specificity of the evidence in the election contest, the City knew or should have known that Hansen-Cavasos’ residential address was located outside the City until August 8, 2019. Further, the City was aware that on April 4, 2019, less than six months prior to the date of the election, that Hansen-Cavasos completed a voter registration with the State of Alaska positively affirming that her address outside the city limit was her residence. Consequently, the City never should have seated Hansen-Cavasos on the City Council. At a minimum given the clear residency presumption created by Hansen-Cavasos’ April 2019 voter registration the City should have at a minimum delayed its certification and seating of Hansen-Cavasos until a sufficient investigation could be performed. The City’s rush to seat an ineligible candidate on the City Council in violation of the law, prior to performing a sufficient investigation in light of the evidence presented in the election contest, is troubling. The City claimed that pursuant to HCC § 2.08.030(c) the Council was required to seat Hansen-Cavasos. However, HCC § 2.08.030(c) does not require the Council to seat a candidate that was ineligible to run for office from the outset.

HCC § 2.08.030(c) states in pertinent part that “[a] person so elected to office under this chapter shall take office at the first regular Council meeting following the election, immediately after the final certification of that election…”[10] The mandate requiring that a candidate be seated at the first City Council meeting after the Election Canvas Board certifies the election, contained in HCC § 2.08.030(c)[11], is implicitly contingent on that candidate being lawfully elected under Chapter 2.08, HCC. Since Hansen-Cavasos was ineligible to run for office there was no mandate for the City Council to immediately seat the ineligible Hansen-Cavasos to a position on the City Council. Likewise, seating Hansen-Cavasos prior to the completion of an investigation was improper and gives the appearance of an elected body that is willing to disregard its own law in pursuit of a political agenda. The Homer City Council’s failure to comply with its own code has denied Stroozas and the citizens the right to choose a legally-qualified and eligible candidate of their choice and the seating of Hansen-Cavasos to a position she was ineligible for is void ab initio.

A. PLAINTIFF IS ENTITLED TO A TRO/PRELIMINARY INJUNCTION.

To determine whether a party is entitled to injunctive relief, Alaska courts apply a “balance of hardships” approach that focuses on three factors:

1. The harm to the plaintiff;

2. The harm to, or protection of, the defendant; and

3. The strength of plaintiff’s case.[12]

Once plaintiff has met the preliminary threshold of showing irreparable harm, and that defendants will not be unduly harmed by the injunction (or that the harms can be adequately mitigated), plaintiff need only raise serious and substantial questions as to the merits of the case.[13] The “serious and substantial question” standard means that the “issues raised cannot be ‘frivolous or obviously without merit.”[14] On the other hand, where the preliminary injunction will harm the defendant, and the defendant cannot be adequately protected, “a showing of probable success on the merits is required before a temporary restraining order or preliminary injunction can be issued.”[15]

Plaintiff and other City of Homer voters will be irreparably harmed by the City’s failure to obey the law by seating an ineligible candidate to serve on the City Council. Under A.S. 15.05.020(8), the City is required to presume Hansen-Cavasos’ residence is located in the district where she filed her voter’s registration in April 2019. Plaintiff and the other voters will have been denied their fundamental rights, guaranteed by the U.S. and Alaska Constitutions—the right to vote for an eligible candidate (and to have their votes counted), and to be represented by the person they chose. There is no relief, other than the injunctive relief requested, which can protect Plaintiff. It is equally apparent that a TRO or injunction will cause no harm to the City or the City Council.

Accordingly, Plaintiff need only raise serious and substantial questions going to the merits of the case. In this case, Plaintiff clearly meets this minimal threshold showing and is thus entitled to a preliminary injunction. In fact, as the following discussion demonstrates, Plaintiff satisfies even the more stringent standard of a “probable success on the merits.”[16]

B. PLAINTIFF WILL SUFFER IMMEDIATE AND IRREPARABLE HARM ABSENT INJUNCTIVE RELIEF.

Plaintiff, and every voter who cast his or her vote for the eligible candidates for City Council, will be irreparably harmed unless the court issues the requested injunctive relief. No relief, other than a TRO or an injunction, can protect Plaintiff from harm. Unless the court issues the injunction, Plaintiff and other voters will have been denied their constitutional rights. The City’s decision denies them the right to vote, to have their votes counted, and to elect the candidates to represent them in the local government. Thus, Plaintiff and the other voters will both be disenfranchised and unrepresented on the City Council by the candidate of their choosing. Accordingly, irreparable harm is certain absent injunctive relief.

C. THERE WILL BE NO HARM TO THE CITY.

Just as clearly, there will be no appreciable harm to the City if injunctive relief is granted. To the contrary, rather than suffering harm, the City is only required to perform its legal obligation to swear in and seat on the City Council the eligible candidates who won highest number of votes cast. The City Council is composed of six members. A quorum of the City Council consists of four council members.[17] Passing a City Ordinance, Resolution or Motion requires at least four votes.[18] Thus, even if this court grants injunctive relief the City can still conduct its regular business. Consequently, rather than harm, the City will suffer no more than inconvenience from the granting of the requested injunctive relief. As Plaintiff will be irreparably harmed compared to the negligible inconvenience that the City will experience, Plaintiff need only raise serious and substantial questions going to the merits.[19]

D. PLAINTIFF HAS RAISED SERIOUS AND SUBSTANTIAL QUESTIONS GOING TO THE MERITS.

There can be no doubt that Plaintiff has raised serious and substantial, “non-frivolous” questions going to the merits. Indeed, Plaintiff has satisfied the more stringent standard of probable success on the merits.

1. The City is Required to Follow its Own Code

The City is incorporated pursuant to Title 29, Alaska Statutes as a first class city which allows the City to adopts its own election rules.[20] In additional to its own election requirements the City has specifically adopted all state and federal laws pertaining to municipal elections.[21] Pursuant to HCC § 2.08.020, the City enacted a one-year durational residency requirement for candidates running for City Council and this unambiguous durational residency requirement has been deemed constitutional.[22] At issue is whether Hansen-Cavasos meets the durational residency requirement necessary to qualify as a candidate for City Council. As shown below Hansen-Cavasos failed to meet the one-year durational residency requirement imposed by the HCC and state law. The City can change this law if it chooses but it is not allowed to disobey an existing law. Moreover, Hansen-Cavasos failed to meet the one-year durational residency requirement even when applying the less stringent analysis used to determine a residence of a voter.

a. Statutory Requirements for Public Office Require Heightened Scrutiny

When determining whether or not a candidate has met the statutory requirements, such as filing deadlines for public office, the courts have consistently applied strict scrutiny to those requirements.[23] This heightened standard is applied unless the election requirements are ambiguous or impossible.[24] The courts have also approved longer durational residency requirements for a candidate that are not legally proper for purposes of establishing voting residency.[25] While a more liberal approach the concept of residency has been applied to vote registration, there has not been a similar liberalization as it applied to candidate qualification.[26] The City failed to comply with its own law when it ignored the clear presumption of residency created when Hansen-Cavasos declared, under penalty of perjury, that she resided outside the city limits on her April 2019 voter registration. The City cannot arbitrarily reduce the residency standards for a candidate, especially given the courts clear preference to apply heightened scrutiny to candidates. Accordingly, the City’s decision to ignore a presumption for a candidate that if applied to a voter would disqualify that voter is unlawful.

b. Hansen-Cavasos failed to Qualify as a Resident for One Year

Under the City and State Voting Residence Factors

Even assuming arguendo that the more liberalized rules for determining a voter’s residence also apply to a determination that a candidate satisfied the one-year durational requirement necessary to serve on the City Council - Hansen-Cavasos still fails to meet this minimum requirement. Determining a voter’s residency intent is a question of fact for this court to determine after reviewing the evidence.[27] The evidence demonstrates that Hansen-Cavasos is ineligible to sit on the City Council because she failed to comply with the one-year residency durational requirement imposed by law. A court will look to the circumstances including objective evidence before reaching a decision regarding a person's intention to establish residency.[28] Intent is gathered primarily from the acts of a person but a voter may testify concerning her intention but such testimony is not necessarily conclusive.[29] The determination of an individual's residence is dependent upon an individual's “expressed intent and conduct.”[30] However there are some bright lines imposed by law that cannot be ignored such as the residency presumption created in a voter registration as discussed below.

The City has adopted its own rules for determining the residence of a voter[31] and pursuant to HCC § 4.01.010 the City has specifically incorporated state law provisions applicable to the determination of a voter’s residence contained in Alaska Statutes § 15.05.020.[32] Under Alaska Statute § 15.05.020(8) “[t]he address of a voter as it appears on the official voter registration record is presumptive evidence of the person’s voting residence. This presumption is negated only if the voter notifies the director in writing of a change of voting residence.”[33] “Under the Alaska Constitution, voters in state and local elections must be residents of the election district in which they vote. Residence is defined by statute as that place in which the person's habitation is fixed, and to which, whenever absent, the person has the intention to return. AS 15.05.020(2). The legislature has created a presumption of residency under AS 15.05.020(8): The address of a voter as it appears on the official voter registration record is presumptive evidence of the person's voting residence. This presumption is negated only if the voter notifies the director in writing of a change in voting residence.”[34]

In the Dodge case the court reviewed a number of factual situations involving residency for purposes of voting.[35] The court held that for purposes of residency, voters registered to vote listing their residence at commercial and industry buildings (not residences) must be presumed valid unless the voter provides written notice of a change of residence.[36] The court upheld the presumption even when the voter filed an affidavit claiming the voter had established residency elsewhere.[37]

Further, the court looked at changes adopted in 2017 after the state began using the permanent fund dividend (“PFD”) application to register, or modify the registrations of, individuals to vote using the address listed in the PFD application.[38] A voter submitted a PFD application listing his business address instead of his residence.[39] This business address listed on the PFD application was different from his prior voter registration address.[40] The state, as required under the 2017 statutory change, mailed the voter a notice allowing the voter to “decline to be registered, maintain his or her existing voter registration, or register to vote at a different address.”[41] The voter did not respond, and the state registered the voter at the address listed in the PFD application.[42] The voter cast a provisional ballot at a polling location in his prior residential district which was rejected.[43] The court held that the voting registration change was lawfully changed pursuant to AS § 15.07.070.[44] Thus, the court upheld the presumption that a residence, for voting purposes, is established at the address listed on the voter registration until the voter informs the election division in writing of a change of residence.[45] Importantly this was true even if the voter does not affirmatively change the residential address on his or her voter registration.[46]

Unlike the unwitting voter in Dodge, Hansen-Cavasos intentionally listed her residency for purposes of voting, and on her 2018 PFD application filed in early 2019, at 54730 Rolling Meadows – an address outside the boundaries of the City.[47] Pursuant to her voter registration form, Hansen-Cavasos’ claimed residency outside the City limits approximately six months prior to the election. Not only was the voter registration a positive affirmation by Hansen-Cavasos of her residency, it was done on a form clearly indicating that the person “MUST provide the Alaska residence address where you claim residency.”[48] Finally, the registration contains a clear notice directly above the signature space indicating that the signatory certifies the accurate of the provided information “under penalty of perjury”, with an additional sentence in bold below that labeled “WARNING” explaining that providing false information could result in conviction of a misdemeanor. The voting registration residence affirmatively certified under penalty of perjury is Hansen-Cavasos’ presumed residence until she informed the division in writing that she was changing her presumptive residence. Hansen-Cavasos did not change her voting residence until August 8, 2019 – the same day she filed her candidacy for City Council.[49] Accordingly, Hansen-Cavasos’ residency presumption outside Homer city limits was negated only when she notified the director in writing of a change in her voting residence and that was not done until she filed her Declaration of Candidacy and Voter Registration on August 8, 2019 approximately eight weeks before the election. As a matter of law, this is insufficient and untimely to be a candidate in the City’s 2019 election.

The law is clear, and the City must follow the law. The city cannot accept Hansen-Cavasos’ after-the-fact affidavit and subsequently submitted evidence claiming her intent was to establish her residence at a different location other than the location she affirmatively certified was her residence when she renewed her voter’s registration in April 2019 – six months before the election. Moreover, Hansen-Cavasos’ conduct[50] demonstrates her residency was outside the City of Homer until she filed her Declaration of Candidacy for City Council. However, because the courts have already determined that the voter registration creates a presumption of residency this conduct is irrelevant.

The City does not get to pick or choose which laws to follow. Accordingly, the City cannot ignore the residency presumption created by Hansen-Cavasos when she “certified under penalty of perjury” that her residence was in Fritz Creek (not Homer) in April of 2019. Moreover, the City does not get to choose to ignore the residency presumption simply because Hansen-Cavasos filed an affidavit claiming residency elsewhere. Accordingly, under state and City Code Hansen-Cavasos did not satisfy the one-year durational residency requirements necessary to serve on the City Council.

2. The City’s Conduct Denies Plaintiff and Other Voters their Constitutional Right to Vote and to Have their Votes Counted.

As a qualified voter and candidate for office, Plaintiff plainly has the constitutional right to vote in City of Homer elections for the candidate of his choice, and to have his vote counted. Just as plainly, the City’s conduct denies Plaintiff (and other voters) this important constitutional right.

The United States Supreme Court has made it “indelibly clear” that “all qualified voters have a constitutionally protected right to vote…, and to have their votes counted….”[51] The right to vote can “neither be denied outright…, nor destroyed by alteration of ballots…, nor diluted by ballot-box stuffing….”[52] Moreover, “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.”[53]

The Reynolds Court also noted that it is “as equally unquestionable that the right to have one’s vote counted is as open to protection…as the right to put a ballot in a box.”[54] Thus, the right to vote “includes the right to have the vote counted at full value without dilution or discount.”[55]

In this instance, the City’s action in seating an ineligible candidate not only debases the rights of the eligible candidates, but it also abrogates the rights of voters entirely. The votes of all of these voters—24%—are discounted and abrogated just as surely as if the opponents had destroyed their votes or engaged in ballot-box stuffing. The City’s conduct here goes beyond mere debasement or dilution of the votes, and effectively disenfranchises every voter who cast his or her vote for eligible candidates, denying them their right to vote and to have their votes counted.[56]

In fact, unless the City’s conduct is declared void ab initio then the City could effectively disenfranchise not only those voters who voted for an eligible candidate, but also every voter who voted in the City election. Under City Code, in the event Hansen-Cavasos resigned her seat, the current council members could manipulate that vacancy so that they could appoint a new member to the City Council instead of swearing in the next eligible candidate.[57] Thus, every voter in the City will have been denied their right to vote. Such manipulation cannot be allowed, and the City should be required to swear in the eligible candidate from the City election with the next highest percentage of votes.[58] Accordingly, the City’s conduct clearly denies Stroozas and all voters who voted for eligible candidates their fundamental right to vote, and to have those votes counted.

3. The City’s Conduct Violates the Voters’ Constitutional Right to be Governed by Eligible Representatives of their Choosing.

Equally important as the right to vote (and to have that vote counted) is the core constitutional right to be represented by an eligible candidate of one’s choice. As Daniel Webster noted, “‘the right to choose a representative is every man’s portion of sovereign power.’”[59] The City’s conduct here denies Stroozas and the other City voters this core constitutional right.

The U.S. Supreme Court has repeatedly held that “‘each and every citizen has an inalienable right to full and effective participation in the political processes’ of the legislative bodies of the Nation, State, or locality…,” because “in this country the people govern themselves through their elected representatives.”[60] Since most “‘citizens can achieve this participation only as qualified voters through the election of legislators to represent them,’ full and effective participation requires ‘that each citizen have an equally effective voice in the election of members of his…legislature.”[61] As the Court has also stated, the “right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.”[62]

In this instance, the City’s conduct denies Stroozas and other, eligible candidates and voters this critical constitutional right – to elect and be represented by an eligible candidate. These voters exercised their right to choose the representatives who would represent them on the City Council but instead saw the City Council seat an ineligible candidate. If the City Council is allowed to ignore the law to swear in an ineligible candidate instead of swearing in an eligible candidate with the highest percentage of votes this will deny the voters that exercised their inalienable right to “full and effective participation in the political process…,”[63] and their “portion of sovereign power.”[64] Just as surely as the voters exercised this right, the City’s conduct vitiates and violates that right: the City will not seat an eligible candidate—the one chosen by the voters themselves—to represent them on the City Council.

Thus, the City’s action denies Stroozas and other eligible candidates and voters who voted for an eligible candidate this important constitutional right.

4. The City’s Conduct Denies the Rights of the Winning Eligible Candidate to Represent the Voters on City Council.

The City’s conduct also debases and undermines the constitutional rights of the winning eligible candidate. Erickson, a candidate that is eligible to serve on the City council is being denied the right to serve because the City has ignored the law and seated an unqualified candidate on the City Council. Thus, Erickson has the constitutional right to serve on the City Council because she was an eligible candidate that received the highest percentage of votes for this position. The City’s refusal to seat Erickson clearly denies Erickson her rights.

5. The City’s Conduct is Barred by the Legal Doctrines of Estoppel and Quasi-Estoppel.

Two additional legal doctrines lead inescapably to the conclusion that the City must appoint an eligible candidate to the City Council (and that the vacation and appointment process should not be applied) from the eligible candidates elected at the October election: estoppel and quasi-estoppel. In this instance, should be estopped for seating a candidate that is ineligible for election.[65]

Estoppel prevents a party from asserting a certain position or taking certain action.[66] The elements of estoppel are: “(1) assertion of a position by conduct or word, (2) reasonable reliance thereon, and (3) resulting prejudice.”[67] In applying estoppel against a local government, a fourth element also plays “an important role”: “estoppel will be enforced only to the extent justice so requires.”[68]

In this instance, the City, with full knowledge that Hansen-Cavasos had not resided in the City for the year immediately prior to the October election allowed the ineligible candidate to be sworn in before even “concluding” its investigation into her eligibility. This action should be declared void ab initio and the City should be required to seat an eligible candidate with the highest percentage of votes.[69] Therefore, the City is estopped from preventing the eligible candidate with the highest percentages of votes from taking the seat on City Council and representing the voters. Consideration of the fourth element, “to the extent justice so requires,” serves to bolster this conclusion: justice requires that the constitutional rights of the voters be recognized and upheld.[70]

The doctrine of quasi-estoppel also operates to preclude the City from barring Erickson from serving as the elected Council member on the City Council. Quasi-estoppel “‘appeals to the conscience of the court to prevent injustice’ by precluding a party from taking a position so inconsistent with one he has previously taken that circumstances render assertion of the second position unconscionable.”[71] Unlike estoppel generally, quasi-estoppel does “‘not require ignorance or reliance as essential elements,’ but ‘any representation made to the party claiming quasi-estoppel must have been based [on] full knowledge of the facts.’”[72] Among the factors that the court considers in applying quasi-estoppel are:

(1) “whether the party asserting the inconsistent position has gained an advantage or produced some disadvantage through the first position”; (2) “the magnitude of the inconsistency”; (3) “whether changed circumstances tend to justify the inconsistency”; (4) whether the party claiming estoppel relied on the inconsistency to his detriment; and (5) “whether the first assertion was made with full knowledge of the facts.”[73]

Applying quasi-estoppel to the situation here, it would be unconscionable for the City to bar Erickson, an eligible candidate with the highest percentage of votes from taking a seat and serving as the voters’ representatives on the City Council. The City knew or should have known that Hansen-Cavasos was ineligible to serve on the City Council and decided to swear Hansen-Cavasos[74] into office anyway knowing full well that Hansen-Cavasos was ineligible because she registered to vote in another district until August 8, 2019. Clearly, it would be unconscionable for the City to refuse to seat the eligible candidate with the highest percentage of votes.[75]

CONCLUSION

Plainly, Plaintiff has raised serious and substantial, non-frivolous issues going to the merits. In fact, Plaintiff has even met the higher threshold of probable success on the merits. Accordingly, the Court should grant Plaintiff injunctive relief directing the City to remove the ineligible candidate Hansen-Cavasos and directing the City Clerk to swear in eligible candidate Erickson.

DATED this ___th day of November 2019 at Anchorage, Alaska.

Reeves Amodio LLC

Attorneys for Plaintiff

By: _____________________________

Keri-Ann Baker

ABA #1812129

By: _____________________________

Thomas P. Amodio

ABA #8511142

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing was

mailed and emailed to

the following this ____ day of ________________, 2019.

Michael Gatti

JDO Law

mgatti@

Mary Pinkel

JDO Law

mpinkel@

3000 A Street, Suite 300

Anchorage, Alaska 99503

_________________________________________

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[1] Reynolds v. Sims, 377 U.S. 533, 554-55 (1964).

[2] See Board of Estimate v. Morris, 489 U.S. 688, 693 (1989).

[3] A copy of a Certificate of Election is attached and incorporated hereto as Exhibit A.

[4] A copy of Hansen-Cavasos Declaration of Candidacy is attached and incorporated hereto as Exhibit B.

[5] Id.

[6] See Exhibit A; See also HCC Resolution 19-74 certifying the results of the October 1, 2019 regular City of Homer election and attachments, a copy of which is attached as Exhibit C.

[7] Likewise, it is difficult for the City to argue that it is harmed by being required to seat the eligible candidate and follow the law. Only eligible candidates should be duly elected by the voters to serve as their representatives on the City Council.

[8] HCC § 2.08.020.

[9] HCC § 2.08.020.

[10] HCC § 2.08.030(c).

[11] HCC § 2.08.030 contains an exception for runoff elections that is not applicable in this factual scenario.

[12] North Kenai Peninsula Road Maintenance Service Area v. Kenai Peninsula Borough, 850 P.2d 636, 639 (Alaska 1993). See Keystone Services, Inc. v. Alaska Transportation Comm’n, 568 P.2d 952 (Alaska 1977) and Alaska Public Utilities Comm’n v. Greater Anchorage Area Borough, 534 P.2d 549 (Alaska 1975).

[13] North Kenai Maintenance Area, 850 P.2d at 639; Keystone Services, 568 P.2d at 954; A.J. Industries, Inc. v. Alaska Public Service Comm’n, 470 P.2d 537 (Alaska 1970).

[14] North Kenai Maintenance Area, 850 P.2d at 639, quoting State v. Kluti Kaah Native Village, 831 P.2d 1270, 1273 (Alaska 1992).

[15] North Kenai Maintenance Area, 850 P.2d at 639, quoting State v. United Cook Inlet Drift Ass’n, 815 P.2d 378, 378-79 (Alaska 1991).

[16] See A.J. Industries, 470 P.2d at 540 and Powell v. City of Anchorage, 536 P.2d 1228, 1229 nn. 2 and 11 (Alaska 1973).

[17] HCC § 2.08.040(h). “Quorum – Voting. Four Council members shall constitute a quorum. Four affirmative votes are required for the passage of an ordinance, resolution, or motion. A member of the Council acting as Mayor Pro Tem shall not lose his vote as the result of serving in such office. The Mayor is not a Council member and may vote only in the case of a tie. The final vote on each ordinance, resolution, or substantive motion may be a roll call vote or may be done in accordance with subsection (k) of this section (see AS 29.20.160(c)(d))”.

[18] Id.

[19] Keystone Services, 568 P.2d at 954; A.P.U.C. v. Greater Anchorage, 534 P.2d at 554; and A.J. Industries, 470 P.2d 537.

[20] AS § 29.04; see also HCC § 1.10.010.

[21] HCC § 4.01.010.

[22] HCC § 2.08.020(a); see also Castner v. Homer, 598 P.2d 953 (Alaska 1953); Pursuant to HCC § 2.08.020(a) Hansen-Cavasos must meet the one-year durational residency requirement and comply with the conditions in HCC § 4.05.010. Stroozas does not dispute Hansen-Cavasos’ compliance with the provision of HCC § 4.05.010 and thus this pleading does not address those requirements.

[23] Falke v. State, 717 P.2d 369 (Alaska 1986)(holding that an election policy allowing substantial compliance with statutory election requirements is not appropriate as candidates for office must strictly comply with those requirements); see also State v. Jeffrey, 170 P.3d 226 (Alaska 2007).

[24] Id.

[25] Castner v. Homer, 598 P.2d 953.

[26] Id.

[27]Lake & Peninsula Borough, 329 P.3d 214, 222 (Alaska 2014).

[28] Lake & Peninsula Borough, 329 P.3d 214.

[29] Id.

[30] Lake & Peninsula Borough, 329 P.3d 214 citing Gordon v. Blackburn, 618 P.2d 668, 672 (Colo. 1980); Maksym v. Bd. Election Comm’rs, 950 N.E.2d at 1060-61 (Ill. 2011); People v. O’Hara, 96 N.Y.2d 378 (N.Y. 2001).

[31] HCC § 4.05.020. “The residence of a person is that place in which habitation is fixed, and to which, whenever he is absent, he has intention to return. If a person resides in one place but does business in another, the former is the person’s place of residence. Temporary camps do not constitute a dwelling place. b. A change of residence is made only by the act of removal joined with the intent to remain in another place. There can only be one residence. c. A person does not gain or lose his residence solely by reason of his presence while employed in the service of the United States or of this State, or while a student of an institution or asylum at public expense, or while confined in a public prison or while residing upon an Indian or military reservation, or while residing at the Alaska Pioneers Home. d. No member of the armed forces of the United States, his spouse or his dependent is a resident of this State solely by reason of being stationed in the State. e. A person does not lose his residence if he leaves his home and goes to another country, state, or place within this State for temporary purposes only and with the intention of returning. f. A person does not gain a residence in a place to which he comes without a present intent to establish a permanent dwelling there. g. A person loses his residence in this State if he votes in an election held in another state, and has not upon his return regained his residence in this State under the provisions of this chapter and State law. h. The term of residence is computed by including the day on which the person’s residence commences and by excluding the day of the election.

[32] AS § 15.05.020. “(1) A person may not be considered to have gained a residence solely by reason of presence nor may a person lose it solely by reason of absence while in the civil or military service of this state or of the United States or of absence because of marriage to a person engaged in the civil or military service of this state or the United States, while a student at an institution of learning, while in an institution or asylum at public expense, while confined in public prison, while engaged in the navigation of waters of this state or the United States or of the high seas, while residing upon an Indian or military reservation, or while residing in the Alaska Pioneers’ Home or the Alaska Veterans’ Home. (2) The residence of a person is that place in which the person’s habitation is fixed, and to which, whenever absent, the person has the intention to return. If a person resides in one place, but does business in another, the former is the person’s place of residence. Temporary work sites do not constitute a dwelling place. (3) A change of residence is made only by the act of removal joined with the intent to remain in another place. There can only be one residence. (4) A person does not lose residence if the person leaves home and goes to another country, state, or place in this state for temporary purposes only and with the intent of returning. (5) A person does not gain residence in any place to which the person comes without the present intention to establish a permanent dwelling at that place. (6) A person loses residence in this state if the person votes in another state’s election, either in person or by absentee ballot, and will not be eligible to vote in this state until again qualifying under AS 15.05.010. (7) The term of residence is computed by including the day on which the person’s residence begins and excluding the day of election. (8) The address of a voter as it appears on the official voter registration record is presumptive evidence of the person’s voting residence. This presumption is negated only if the voter notifies the director in writing of a change of voting residence.”

[33] AS § 15.05.020(8).

[34] Id.

[35] Dodge v. Meyer, 444 P.3d 159, 162-163 (Alaska 2019)(holding that a contested ballot would not be counted even when it was cast by a voter whose voting district was automatically changed after he listed his business address when applying for his PFD and failed to respond to notifications from election officials that his change of voter registration residence would be changed automatically).

[36] Id.

[37] Id.

[38] Id.

[39] Id.

[40] Id.

[41] Id.

[42] Id.

[43] Id.

[44] Id.

[45] Id.

[46] Id. Importantly, evidence was provided that the voter never intended to switch his residence and simply listed his business address for convenience.

[47] A copy of Hansen-Cavasos’ State of Alaska Voter Registration Application dated April 4, 2019 is attached and incorporated hereto as Exhibit D.

[48] Id.

[49] A Copy of the Hansen-Cavasos’ State of Alaska Voter Registration Application dated August 8, 2019 is attached and incorporated hereto as Exhibit E.

[50] Hansen-Cavasos’ conduct demonstrates that she lived outside the City boundaries which can be presented to this court at length in a hearing but since the court has created a clear residency presumption it is likely the court need not even look to Hansen-Cavasos’ conduct as it can render a decision based on the presumption alone.

[51] Reynolds v. Sims, 377 U.S. 533, 554 (1964) (citations omitted). Although the facts in Reynolds and the other Supreme Court cases discussed below involved re-apportionment disputes, the Court does not limit its forceful articulation of these important constitutional rights to the re-apportionment arena. Furthermore, these rights apply not only to Congress and state legislatures, but to local governments as well. See Board of Estimate v. Morris, 489 U.S. 688, 692 (1989).

[52] Id. at 555 (citations omitted).

[53] Id. (footnote omitted).

[54] Id. at 554-555, quoting U.S. v. Mosley, 238 U.S. 383, 386 (1915).

[55] Id. at 555, quoting South v. Peters, 339 U.S. 276, 279 (1950) (Douglas, J., dissenting).

[56] Reynolds v. Sims, 377 U.S. at 554.

[57] See HCC § 2.08.50; See also HCC § 2.08.40(i).

[58] In the alternative the City could also avoid disenfranchisement of the voters by immediately holding an election and allowing the voters to choose their own representation.

[59] Board of Estimate v. Morris, 489 U.S. 688, 693 (1989), quoting Luther v. Borden, 48 U.S. (7 How.) 1, 30 12 L.Ed. 581 (1849) (statement of counsel).

[60] Morris, 489 U.S. at 693, quoting Reynolds v. Sims, 377 U.S. at 565.

[61] Id., quoting Reynolds, 377 U.S. at 565.

[62] Reynolds, 377 U.S. at 555.

[63] Morris, 489 U.S. at 693.

[64] See id.

[65] Moreover, the City should be preemptively estopped from manufacturing a vacancy and potentially appointing an unelected person to the City Council.

[66] Municipality of Anchorage v. Schneider, 685 P.2d 94, 97 (Alaska 1984).

[67] Id.

[68] Id.

[69] The City should not be allowed to improperly seat an ineligible candidate, manufacture a vacancy and then appoint an unelected individual when it was the City Council who created the possibility of a vacancy by swearing in a candidate that was ineligible from the outset.

[70] See discussion in Parts 1 and 2, above.

[71] Rockstad v. Erikson, 113 P.3d 1215, 1223 (Alaska 2005), quoting Jamison v. Consolidated Utilities, Inc., 576 P.2d 97, 102 (Alaska 1978).

[72] Id., quoting Jamison 576 P.2d at 102.

[73] Id., quoting Jamison at 102-03.

[74] Upon information and belief Hansen-Cavasos cast a provisional ballot in her own election which should have given the City some notice of the serious questions concerning Hansen-Cavasos’ residency claims.

[75] Likewise, the City should be prospectively barred from attempting to manufacture a vacancy and fill it with an unelected person of its choosing instead of the candidate elected by the voters.

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