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Walleri v. City of Fairbanks (10/2/98), 964 P 2d 463


     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907)
264-0608, fax (907) 264-0878.


             THE SUPREME COURT OF THE STATE OF ALASKA

MICHAEL J. WALLERI,           )
                              )    Supreme Court No. S-8186
               Appellant,     )
                              )    Superior Court No.
          v.                  )    4FA-96-2906 CI
                              )
CITY OF FAIRBANKS,            )    
JAMES HAYES, ROBERT WOLTING,  )    O P I N I O N
BILLIE RAY ALLEN, JIM IMMEL,  )
JERRY CLEWORTH, and           )    [No. 5036 - October 2, 1998]
DAVID STEPHENSON,             )
                              )
               Appellees.     )   
                              )


          Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
                  Niesje J. Steinkruger, Judge.

          Appearances:  Michael J. Walleri, pro se,
Fairbanks.  Paul J. Ewers, Deputy City Attorney, Office of the City
Attorney, Fairbanks, for Appellees.

          Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.

          COMPTON, Justice.


I.   INTRODUCTION
          Michael Walleri appeals the dismissal of his action
against the City of Fairbanks to void or reform a contract between
it and a third party for the sale of certain municipal utilities. 
We affirm in part and reverse in part.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          In the summer of 1996, the City of Fairbanks concluded
negotiations to sell its telephone, electric, sewer, and water
utilities (collectively the Fairbanks Municipal Utilities System or
FMUS) to a group of private business interests (Buyer Group).  The
contract for sale was signed that August.  The contract contained
a provision making it subject to approval by the voters of the City
of Fairbanks.  That same month, the Fairbanks City Council passed
an ordinance approving the sale and referring the matter for
inclusion on the October 8, 1996, city general election, as
required by the city charter. [Fn. 1]  At that election, the voters
approved the sale as presented on the ballot.
     B.   Proceedings
          Walleri, a taxpayer and utilities ratepayer, sued the
City of Fairbanks and certain city officials (referred to
collectively as the City), claiming that the terms of the actual
contract were at odds with the terms on the ballot measure.  The
City answered and moved to dismiss on various grounds.  Walleri
later amended his complaint to allege the following counts:
(1) violation of Fairbanks City Charter section 8.4 (contract
unauthorized by vote); (2) breach of the duty to exercise
reasonable care in negotiations; (3) constructive fraud; and
(4) violation of Fairbanks City Charter section 2.8 (concerning
open meetings).  As a remedy, Walleri asked the court to (1) void
the contract or (2) reform the contract to conform to the measure
actually passed.
          Following oral argument, the superior court ruled from
the bench, dismissing all four counts of the complaint on two
alternative grounds: (1) each count was an election contest under
Fairbanks City Code of Ordinances section 3.127, [Fn. 2] which sets
forth the sole method for contesting a city election, and Walleri
failed to comply with the procedural requirements of that section;
(2) each count involves non-justiciable political questions. 
Additionally, with respect to count IV, the court held that
Fairbanks City Charter section 2.8, concerning open meetings, was
preempted by the State Open Meetings Act.  See AS 44.62.310-.312.
The court noted that Walleri had failed to allege a violation of
the State Open Meetings Act in his amended complaint.
          The City then moved for attorney's fees.  Walleri
opposed, arguing that he was a public-interest litigant against
whom attorney's fees could not be awarded.  The court found that
Walleri did not satisfy the requirements for public-interest-
litigant status and awarded attorney's fees to the City in the
amount of $14,168.50.  Walleri appeals the dismissal of his case
and the attorney's fees award.
III. DISCUSSION
          Walleri presents four distinct issues: (1) none of his
causes of action were election contests; (2) all of his causes of
action are justiciable; (3) the State Open Meetings Act did not
preempt the Fairbanks City Charter provision concerning open
meetings; and (4) an award of attorney's fees against him was
inappropriate because he was a public-interest litigant.
     A.   Are Any or All of Walleri's Causes of Action Properly  
          Deemed "Election Contests"? 

          Walleri acknowledges that he did not comply with the
procedural requirements for an election contest (set forth supra
note 2).  If any of his causes of action are properly deemed
election contests, they were properly dismissed.  This presents the
question:  What is an "election contest"?
          1.   What is an election contest?
          Fairbanks City Code of Ordinances section 3.127 provides
for the contest of city elections.  In Boucher v. Bomhoff, 495 P.2d
77, 80 (Alaska 1972), we stated that the overriding concern in an
election contest is "to ascertain whether the alleged impropriety
in fact establishes doubt as to the validity of the election
result."  The reason for the rigid procedural requirements for
election contests is that "public policy demands that election
results have stability and finality."  Dale v. Greater Anchorage
Area Borough, 439 P.2d 790, 792 (Alaska 1968) (citing Curry v.
Dawson, 379 S.W.2d 287, 289 (1964)).  Whether a cause of action
should be deemed an election contest thus turns on the remedy
sought.  If granting the remedy would defeat the public interest in
the stability and finality of election results, it is appropriate
to deem the cause of action an election contest and to require
compliance with the procedures for such contests.  Conversely, if
the remedy will not affect the stability and finality of the
election result, then the cause of action should not be deemed an
election contest.  
          2.   Do any of the counts of Walleri's complaint
constitute an election contest?

          We conclude that none of the counts of Walleri's
complaint constitutes an election contest.  The only remedy sought
by Walleri is the invalidation or reformation of the contract. 
Nowhere does Walleri challenge the validity of the election result. 
His complaint does not implicate the public policy favoring the
stability and finality of such results.
 
          In its opinion from the bench, the superior court
suggests that any claim "regarding"an election is subject to the
rules for an election contest.  We agree with Walleri's argument
that such a rule would be poor policy.  As explained above, it is
in line with the policy behind the stringent procedural
requirements for election contests to classify as election contests
only those causes of action in which a remedy sought would affect
the stability and finality of the election.  To classify as an
election contest any claim "regarding"an election would not make
the results of elections themselves any more stable.

          The City argues that to void the contract is equivalent
to voiding the election.  We disagree.  The election has
significance independent of the contract.  If it is proven that the
contract does not match the terms voted on by the citizens of
Fairbanks, no legal impediment appears to preclude the City from
renegotiating a contract according to the terms actually voted
upon.
          The City next suggests that Roberts v. Brownsboro
Independent School District, 575 S.W.2d 371 (Tex. App. 1979),
supports its argument and is "virtually identical"to the instant
case.  In Roberts, plaintiff sought, by declaratory judgment, to
invalidate the city council order calling a school bond election
after that election had occurred.  See id. at 371-72.  While the
Roberts court focused on the idea that an attack on any part of the
election process must be deemed an "election contest,"we note that
granting the remedy sought in Roberts would have had the direct
effect of invalidating the election.  See id. at 373-74.  In the
instant case, however, once it is recognized that the election has
significance independent of the contract, it is clear that voiding
the contract does not invalidate the election.  Roberts is, thus,
distinguishable.  The City presents a number of other out-of-state
cases.  However, each of these cases is also distinguishable in
that the remedy requested required the invalidation of the election
result. [Fn. 3]  
          Finally, the City argues that because the contract came 
first, only the election may be challenged.  It is uncontested that
the contract was negotiated and signed prior to the election.  That
being the case, the City argues that if the ballot language did not
conform to the contract, it must be the ballot language that is
defective.  The City suggests that a challenge to the ballot
language is clearly an election contest.
          This argument depends on a principle already rejected
above -- that the election has no significance independent of the
contract.  Once it is accepted that the contract and the election
result (authorizing entry into a contract with particular terms)
are distinct, it is irrelevant which came first. 
     B.   Are Any or All of Walleri's Causes of Action Non-
          Justiciable Political Questions?

          The superior court held, in the alternative, that each of 
Walleri's counts involved a non-justiciable political question. 
The superior court reasoned thus: 
                         The issue of selling the city utilities
                    is a policy value judgment issue to be decided
                    by the City Council and the voters . . . . 
                    The basic issue [in each count of Walleri's
                    complaint is] whether the ordinance or the
                    sale is right or wrong or good or bad . . .
                    and these political questions are best left to
                    legislative bodies, not the courts. . . .
                    
                         This court finds that the grounds for a
                    political question are met.  There is a
                    textually demonstrable commitment of the issue
                    to another political department.  Here it is
                    to the City Council . . . and the court finds
                    that the decision of what to do with city
                    property is a decision for the city and its
                    voters.
                    
         "To aid in the identification of nonjusticiable political
questions we have employed the approach adopted by the United
States Supreme Court in Baker v. Carr [369 U.S. 186 (1962)]."
State, Dep't of Natural Resources v. Tongass Conserv'n Soc'y, 931
P.2d 1016, 1018 (Alaska 1997) (citing Abood v. League of Women
Voters of Alaska, 743 P.2d 333, 336 (Alaska 1987); Malone v.
Meekins, 650 P.2d 351, 357 (Alaska 1982)).  Under our
interpretation of Baker, one of the criteria for finding a
political question is, as the superior court suggests, "a textually
demonstrable commitment of the issue to a coordinate political
department."  650 P.2d at 357 (citing Baker, 369 U.S. at 217). 
And, as the superior court suggests, Fairbanks City Charter section
8.4 demonstrably commits the issue of the "rightness or wrongness"
of selling the City's utilities to the city council and to the
voters.  However, the superior court misapplied the criteria for
finding a political question to the facts of the instant case. 
          Count I does not ask the court to determine the
"rightness or wrongness"of the decision to sell FMUS.  Rather it
suggests that the contract is invalid for failure to comply with
Fairbanks City Charter section 8.4, which requires voter
ratification of an ordinance authorizing the sale of a public
utility.  Count IV also does not challenge the correctness of the
decision to sell FMUS.  It too alleges a procedural violation --
failure to comply with Fairbanks City Charter section 2.8, which
sets forth local open meetings requirements.  Counts II and III
allege individual acts of breach of duty of care and constructive
fraud by City officials.  These counts do not appear to ask the
court to determine whether the contract was a good idea. [Fn. 4] 
We do not find that any of the counts of Walleri's complaint
involves a political question.
     C.   Did Walleri State a Cause of Action under the Fairbanks
City Charter's Open Meetings Provision?

          Section 2.8 of the Fairbanks City Charter provides that
all city council meetings must be open to the public, except that
the council may discuss in a closed or executive session "any
question which would tend to defame or prejudice the reputation and
character of any person."  In count IV of his complaint, Walleri
alleges that the city council met in closed executive sessions at
least seven times to discuss the sale of FMUS, in violation of the
charter provision referenced above.  The superior court held that
Walleri could not state a cause of action under section 2.8 because
that provision is preempted by AS 29.10.200, 29.20.020, and
44.62.310.
          The superior court is correct.  Alaska Statute 29.10.200
lists provisions that "apply to home rule municipalities as
prohibitions on acting otherwise than as provided.  These
provisions supersede existing and prohibit future home rule
enactments that provide otherwise."  (Emphases added.)  No one
contends that Fairbanks is not a home rule municipality.  Alaska
Statute 29.20.020 is one of the provisions mentioned in
AS 29.10.200.  Alaska Statute 29.20.020 provides in part that the
"[m]eetings of all municipal bodies shall be public as provided in
AS 44.62.310."  Alaska Statute 44.62.310(a) provides in part that
"[a]ll meetings of a governmental body of a public entity of the
state are open to the public except as otherwise provided by this
section or another provision of law."  Alaska Statute 44.62.310(c)
lists the subjects that may be considered in executive session. 
This list is broader than the exception provided in section 2.8 of
the Fairbanks City Charter -- the Fairbanks City Charter provides
"otherwise."  It is thus preempted, by the terms of AS 29.10.200.
[Fn. 5]  Walleri's argument entirely ignores the effect of the
explicit language of AS 29.10.200, and so is not well taken. [Fn.
6]

     D.   Was the Attorney's Fees Award against Walleri
          Appropriate?

          Because we reverse the dismissal of counts I, II, and III
the City is not, at this time, the prevailing party.  We therefore
vacate the award of attorney's fees.
IV. CONCLUSION
          We AFFIRM the dismissal of count IV; REVERSE the
dismissal of counts  I, II, and III; VACATE the award of attorney's
fees; and REMAND the case for further proceedings consistent with
this opinion.


                            FOOTNOTES


Footnote 1:

     Fairbanks City Charter section 8.4 provides, in its entirety: 
"An entire public utility owned by the city shall not be sold or
leased except by authority of an ordinance ratified by a majority
of the qualified voters voting on the question."


Footnote 2:

     Section 3.127 provides as follows:

                    Contest of election.
                    
                         A defeated candidate or any ten (10)
                    qualified voters who contested an election may
                    bring an action in the superior court within
                    ten (10) days after the council has concluded
                    that said election was validly held and the
                    results entered upon the minutes.  Such legal
                    action shall be upon the grounds set forth in
                    AS 15.20.540 for contesting state elections. 
                    The judge shall render a decision as required
                    by AS 15.20.560 for state elections.  If no
                    such action is commenced within the ten (10)
                    day period, the election and the election
                    results shall be conclusive, final and valid
                    in all respects.
                    
                    
                    Footnote 3:
                    
                         In Taylor v. Roche, 248 S.E.2d 580, 581
                    (S.C. 1978), plaintiffs sought to invalidate a
                    constitutional amendment because the form of
                    the question on the ballot used to obtain
                    approval for that amendment was misleading. 
                    This is conceptually different from the
                    instant case.  The crucial "election result"
                    in Taylor was the passage of the
                    constitutional amendment.  The crucial
                    "election result"in the instant case is the
                    authorization of the sale of the utilities,
                    under particular terms.  See Fairbanks City
                    Charter section 8.4.  The contract itself,
                    which Walleri seeks to invalidate, is not the
                    election result.
                    
                              In Dehoff v. Attorney General, State
                    of Tennessee, 564 S.W.2d 361, 362 (Tenn.
                    1978), the plaintiff sought a declaratory
                    judgment that a referendum election was void
                    because the ballot question had not adequately
                    explained the effects of the act to be
                    approved.  The court broadly interpreted the
                    term "election contest"to include any action
                    that "seeks a judicial determination that an
                    election is invalid, whatever the cause of
                    invalidity."  Id. at 363-64.  The City argues
                    that, as the Tennessee court looked past the
                    declaratory-judgment form of Dehoff's action
                    to its ultimate effect of invalidating the
                    election, we should look past the contract-
                    voiding form of Walleri's action to its
                    alleged ultimate effect of invalidating the
                    election.  But, as we explained above,
                    Walleri's action will not in fact have that
                    ultimate effect.
                      
                              State ex rel. Byrd v. Board of
                    Elections of Summit County, 417 N.E.2d 1375
                    (Ohio 1981), is similar to Dehoff.  Plaintiff
                    sought to invalidate an election by means of a
                    writ of mandamus and by an action in quo
                    warranto.  See id. at 1377.  The court
                    concluded that these actions were unavailable
                    -- the plaintiff was required to follow the
                    statutory procedures for an election contest. 
                    See id. at 1377-79.  The key difference,
                    again, is that the plaintiff in Byrd sought to
                    invalidate the results of an election, while
                    Walleri does not.
                    
                              In Dinwiddie v. Board of County
                    Commissioners of Lea County, 708 P.2d 1043,
                    1045 (N.M. 1985), plaintiffs challenged both
                    the validity of the election and its result. 
                    Dinwiddie stands for the unremarkable
                    proposition that, because a challenge to
                    either the validity of the election or a
                    challenge to the result "seek[s] to alter the
                    certified result of the election,"such a
                    challenge is an election contest.  Id. at
                    1045-46.  This is unhelpful to the City --
                    Walleri's complaint does not seek to alter the
                    certified result of the election.
                    
                    
                    Footnote 4:
                    
                         The City suggests a general rule that
                    "[t]he nonjusticiability of a political
                    question cannot be overcome by questioning the
                    'legality' of the means employed to implement
                    the policy."  The cases that the City cites do
                    not, however, stand for this broad
                    proposition.  These cases simply hold that
                    questions regarding "legislative rules"are
                    nonjusticiable, absent exceptional
                    circumstances, as the constitution
                    specifically commits to the legislature the
                    authority to provide for its own rules of
                    procedure.  See Abood v. League of Women
                    Voters of Alaska, 743 P.2d 333, 339-40 (Alaska
                    1987); Abood v. Gorsuch, 703 P.2d 1158, 1163-
                    64 (Alaska 1985); and Malone v. Meekins, 650
                    P.2d 351, 356 (Alaska 1982).
                    
                    
                    Footnote 5:
                    
                         Walleri concedes that the Council could
                    hold the meetings at issue in executive
                    session under AS 44.62.310.
                    
                    
                    Footnote 6:
                    
                         We recognized the preemptive effect of
                    the statutory predecessor to AS 29.10.200 in
                    Jefferson v. State, 527 P.2d 37, 43 n.33
                    (Alaska 1974):  "If the legislature wishes to
                    'preempt' an entire field, they must so state. 
                    We note that the legislature has done this in
                    its new Title 29, Municipal Code."  [Referring
                    to the predecessor to AS 29.10.200.] 
                    (Citation omitted.)