Judge calls Wagoner omissions trivial

Posted: Tuesday, January 07, 2003

ANCHORAGE (AP) -- A state Superior Court judge in Anchorage has ruled that Tom Wagoner's election paperwork omissions were relatively trivial.

The decision handed down Monday by Judge Peter Michalski clears the way for the newly elected state senator from Kenai to take his seat when the Legislature convenes Jan. 21.

But Wagoner's critics have already moved on to the state Supreme Court, arguing that the lower court misinterpreted the state's election disclosure law. They want the Supreme Court to say that any failure to meet the law's deadlines for disclosing possible conflicts of interest means automatic disqualification for election challengers, though not for incumbent legislators.

''This is not a question of sloppy mistakes. It's about having informed voters,'' said Chuck Robinson, the Soldotna lawyer representing two constituents suing to have the election overturned.

Robinson said similar mistakes by runner-up Jerry Ward would not disqualify him from reclaiming his Senate seat, however, because Ward was an incumbent and therefore was covered by a different law.

Wagoner was sued after his election in November for failing to mention details of several business interests on official disclosure forms.

After the lawsuit was filed, the Alaska Public Offices Commission investigated and levied a reduced fine of $150 on Wagoner for two omissions. He failed to report that he had been the officer of a condominium homeowners association in California, though he declared his condo ownership, and he failed to give the name of his rental business, though he named his rental tenants.

The election challenge has also opened up a pre-session political rumble among Republicans. Both Wagoner and Ward are Republicans, though Wagoner ran against Ward as a Republican Moderate to avoid facing the more conservative incumbent in the closed-party primary.

Sen. Robin Taylor testified early in the Wagoner case that incoming Senate President Gene Therriault of Fairbanks might have lost his leadership bid to Taylor if Ward had been deciding instead of Wagoner.

On Monday, the Legislative Budget and Audit Committee intervened on Wagoner's side before the Supreme Court. It argued in a brief that for constitutional reasons the court should not interfere in legislative elections except in dire circumstances. Therriault is the committee's chairman.

The committee's earlier effort to intervene before Michalski had been opposed in court by outgoing Senate President Rick Halford.

Meanwhile, Wagoner's lawyer said Monday it was outrageous for the plaintiffs, whom he characterized as Ward supporters, to seek automatic disqualification for challengers but not incumbents.

''The guys who have the staff and experience don't face this penalty. How fair is that?'' said Jeff Jefferson. He told the Supreme Court that such a dual standard would violate constitutional equal-protection guarantees.

Ward, who held an Anchorage-Kenai senate seat since 1996, missed at least one such campaign filing deadline last year. He disclosed details of a loan from a lobbyist used to buy a trailer and establish residency in Nikiski only after an inquiry from the Anchorage Daily News.

Robinson said legislators could face fines and oversight by their ethics committee but wouldn't face disqualification for failing to meet deadlines.

''Once you're a member of the Legislature, they get to determine the discipline for their own members,'' he said.

The Supreme Court set Jan. 6 as the deadline for briefs as it weighs taking up the case.

State lawyers, arguing the election should not be overturned, called such mistakes common in the run-up to elections.

But the two Kenai plaintiffs from his district, William Grimm and Merrill McGahan, argued that Wagoner might have lost the race if voters knew those facts. Wagoner beat Ward by 123 votes.

Judge Michalski ruled Monday that the plaintiffs failed to show that Wagoner deliberately lied or that the omissions could have changed the election results.

Wagoner's detractors say the law doesn't require proof that a candidate was trying to hide something.

Michalski said even a strict reading of the law must leave room to gauge whether a candidate has ''substantially complied.''

''Between the obvious cases there are many shades of gray which are the product of the vagaries of language, the complexities of human life and human error, as well as knowing efforts to obfuscate and mislead,'' the judge wrote. ''Differentiation between the immaterial and the significant must be achieved on a case-by-case basis using a substantial compliance test.''

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