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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Ulmer v Alaska Restaurant & Beverage Assoc. et al. (11/09/2001) sp-5495

Ulmer v Alaska Restaurant & Beverage Assoc. et al. (11/09/2001) sp-5495

     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.


ALASKA,                       )
                              )    Supreme Court No. S-9676
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-99-9106 CI
(AWSWA),                      )    O P I N I O N
             Appellees.       )    [No. 5495 - November 9, 2001]

          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                      Karen L. Hunt, Judge.

          Appearances: John B. Gaguine, Assistant
Attorney General, and Bruce M. Botelho, Attorney General, Juneau,
for Appellant.  Thomas P. Amodio, Foster Pepper Rubini & Reeves
LLC, Anchorage, for Appellees.

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

          CARPENETI, Justice.

          In 1999 Lieutenant Governor Fran Ulmer certified and
prepared an initiative petition to increase the statutory excise
tax on alcoholic beverages.  Shortly thereafter, the Alaska
Restaurant and Beverage Association, the Alaska Cabaret, Hotel,
Restaurant and Retailers Association, and the Alaska Wine and
Spirit Wholesalers Association (collectively "ARBA") [Fn. 1]
challenged the petition, claiming it was unconstitutional and that
the petition summary was legally defective because it did not
include the amount of the tax increase and it implied that the tax
increase covered a group not included in the statute or in the
initiative.  Upon cross-motions for summary judgment, the superior
court concluded the petition was constitutional but that the
petition summary was legally defective.  The initiative sponsors,
who are not party to these proceedings, then abandoned the
initiative by failing to timely file the petition with the
lieutenant governor.  The state now appeals the conclusion that its
petition summary was defective.
          Because the initiative sponsors are not party to these
proceedings, because the initiative petition is dead, and because
there is no current controversy as to whom the excise tax applies,
we conclude that this case is moot.  As no exception to the
mootness doctrine applies in this case, we dismiss this appeal.
          Alaska Statute 43.60.010 imposes an excise tax on
alcoholic beverages. [Fn. 2]  In early summer of 1999, an
application for an initiative petition to substantially increase
that tax was submitted to Lieutenant Governor Fran Ulmer.  The
initiative petition tracks the statutory language, except for the
tax amounts.  The initiative proposed changing the tax on malt
beverages from $0.35 to $3.02 a gallon, the tax on wine or other
beverages with up to twenty-one percent alcohol from $0.85 to $7.25
a gallon, and the tax on beverages with more than twenty-one
percent alcohol from $5.60 a gallon to $37.60.  The lieutenant
governor certified the application in July 1999 and prepared the
initiative petitions.  Pursuant to AS 15.45.090 the initiative
petition included a summary of the subject matter of the bill [Fn.
3] as well as the complete text of the bill. [Fn. 4]  The summary
of the petition reads as follows:
               Tax Increase on Alcoholic Beverages
          Imposes a tax increase on persons who make or
sell in the state malt alcoholic beverages, wine and hard or
distilled alcoholic beverages, or consigns shipments of these
beverages into the state.  Should this initiative become law?
          In August 1999 ARBA filed a timely complaint [Fn. 5] for
declaratory and injunctive relief against the lieutenant governor,
arguing that the initiative petition was unconstitutional and that
the lieutenant governor's petition summary was defective.  In
November ARBA filed a motion for summary judgment.  The state
opposed, [Fn. 6] asking the superior court to grant summary
judgment in its favor. 
          The superior court granted partial summary judgment in
favor of the state, concluding that the initiative was
constitutional.  The court also granted partial summary judgment in
favor of ARBA on the question of the validity of the petition
summary, concluding that the petition summary was deficient as a
matter of law, because it was both inaccurate (because it said the
tax was to be imposed on out-of-state sales of alcoholic beverages
produced in-state, contrary to the language of the initiative), and
misleading (because it did not specify the amount of the tax
increase).  The final judgment enjoined the state from counting the
signatures on those petitions bearing the defective summary.  
          ARBA filed a motion for attorney's fees.  The state
opposed ARBA's motion but did not file its own motion for
attorney's fees.  The superior court concluded that both parties
had prevailed and that each was thus to bear its own costs and
fees.  It therefore did not award costs or fees to either side. 
          The initiative petition was not filed within the one-year
period provided for in AS 15.45.140 and thus has no force or
effect. [Fn. 7]  It consequently was not included on any ballot.
          The state appeals the grant of summary judgment in favor
of ARBA on the validity of the petition summary.
          We resolve issues of standing and mootness using our
independent judgment because, as matters of judicial policy, these
are questions of law. [Fn. 8] 
          The initiative sponsors failed to file the petition with
the lieutenant governor as required by AS 15.45.140, and they are
not parties to this appeal.  While the state points out that the
failure to file could render this appeal moot, it urges us to reach
the merits on three bases.
          First, the state argues that this matter is not moot
because the "sponsors ceased their signature-gathering efforts"
within the one-year submission period and, if this court reverses,
the sponsors could then file a motion to have the one-year filing
period tolled because of the superior court's erroneous ruling. 
The state next argues that if the case is moot, we should reach the
merits of the case in order to determine the prevailing party for
purposes of attorney's fees.  Third, the state contends that this
case falls within the public interest exception to the mootness
doctrine.  For the reasons explained below, we reject each
     A.   This Case Is Moot.
          "[We] refrain from deciding questions where the facts
have rendered the legal issues moot." [Fn. 9]  "A claim will be
deemed moot if it has lost its character as a present, live
controversy.  We have further held that [a] case is moot if the
party bringing the action would not be entitled to any relief even
if" it prevails. [Fn. 10]  Mootness can also occur when "a party no
longer has a personal stake in the controversy and has, in essence,
been divested of standing." [Fn. 11]  "The basic requirement for
standing in Alaska is adversity." [Fn. 12]  Without adversity a
case may be rendered moot. [Fn. 13]  Even in a declaratory judgment
case such as this, where the rights or obligations of parties are
delineated by the court, courts should avoid "becoming involved in
premature adjudication of disputes that are uncertain to occur."
[Fn. 14]  
          The state itself characterizes its request for relief as
providing guidance for the drafting of future petition summaries. 
This characterization necessarily admits that the present
controversy is moot.  The initiative is dead and there is no
current controversy over whether AS 43.60.010 imposes the excise
tax on in-state manufacturers of alcoholic beverages who sell their
product out of state. 
          And, even if the state prevailed, no relief could be
granted: The initiative is without force or effect; the initiative
sponsors are not involved in these proceedings; and the state's
tolling argument is unpersuasive, as discussed below.
          The state argues that this case is not moot because the
superior court's decision may have affected the sponsors' ability
to gather the required number of signatures.  It then proposes that
if we reverse the superior court, the initiative sponsors could
seek to have the one-year period tolled based on the superior
court's erroneous decision.  The state concedes that there is no
provision in the initiative statutes for tolling of the one-year
period for filing, but it sees a "live controversy" remaining based
on the "special circumstances" of this case and the initiative
sponsors' theoretical ability to have the doctrine of equitable
tolling applied to their collection of signatures.  
          However, the initiative sponsors have not made such an
argument and there is no evidence that they intend to do so.  The
state's speculation about what other parties may choose to do in
the future is exactly the sort of indeterminacy that the mootness
doctrine was developed to avoid.  The state cannot point to any
legal remedy that it would be able to achieve through consideration
of this appeal, so its argument is moot.
          We reach the merits of a moot case if an exception to the
mootness doctrine applies, such as the possibility that appellate
review changes the status of the prevailing party and thus an award
of attorney's fees, or because the public interest exception
applies.  There is no legal basis to conclude that the merits of a
moot case can be reached because deciding it one way might allow a
party who is no longer participating in the proceedings to initiate
an action to toll the statutory one-year filing period -- an action
that was not initiated prior to the appeal and that may not even
have been considered by the initiative sponsors.
          Because there is no present, live controversy and the
state no longer has a stake in the outcome of this dispute and thus
is divested of standing, we conclude that this case is moot.
          We turn now to the exceptions to the mootness doctrine.
     B.   The Issue of Attorney's Fees Does Not Warrant
Consideration of the Merits of this Case.
          The state argues that even though this matter is moot, we
should nonetheless reach the merits for purposes of attorney's
fees, relying on LaMoureaux v. Totem Ocean Trailer Express, Inc.
[Fn. 15]  The state argues that if we reverse the decision of the
superior court, then the state will be the prevailing party and, as
such, will be entitled to an award of attorney's fees.  
          ARBA notes that there is no attorney's fee issue pending
in this case and argues that there is no support for reaching the
merits on this basis in this case.  We agree.
          In LaMoureaux, we stated that a party's ability to appeal
is not based on a distinction between an award of monetary damages
or an award of attorney's fees. [Fn. 16]  Thus, where a party has
been awarded attorney's fees, but the case is otherwise moot, we
will reach the merits to determine who prevailed for purposes of
attorney's fees. [Fn. 17]
          But in this case, the superior court did not award
attorney's fees to either side.  ARBA filed a motion for attorney's
fees.  The state did not.  In the state's opposition to ARBA's
motion, it explicitly stated its position as to attorney's fees: 
          [ARBA] simply cannot be seen as the prevailing
parties here.  Indeed, the [state] was the real prevailing party. 
However, [the state] is not seeking an award of costs and fees,
instead taking the position that neither side prevailed, and that
each should bear its own costs and attorney's fees.
The state cannot now argue that because the superior court might be
reversed on appeal that it somehow has a right to an award of
attorney's fees from the court below. 
          Because there was no award of attorney's fees that would
be affected by appellate review and the issue has not been
preserved for appeal, we decline to reach the merits on this basis.
     C.   The Public Interest Exception to the Mootness Doctrine
Does Not Apply.
          Applicability of the public interest exception requires
consideration of three factors:  (1) whether the disputed issues
are capable of repetition, (2) whether the mootness doctrine, if
applied, may repeatedly circumvent review of the issues, and (3)
whether the issues presented are so important to the public
interest as to justify overriding the mootness doctrine. [Fn. 18] 
"None of these factors is dispositive; each is an aspect of the
question of whether the public interest dictates that a court
review a moot issue.  Ultimately, the determination of whether to
review a moot question is left to the discretion of the court."
[Fn. 19] 
          The state takes a broad view of the applicability of the
public interest exception to this case, arguing that review on the
merits here will provide guidance for future petition summary cases
[Fn. 20] and that, as evidenced by this case, the issue can evade
          ARBA, on the other hand, frames the issue narrowly,
arguing that a challenge to the adequacy of a petition summary is
"a very fact-dependent determination based on the wording of the
initiative itself and the specific wording of the summary,"
circumstances not likely to be repeated.  In addition, given the
short period allowed for filing challenges to the lieutenant
governor's certification, issues of this type have not tended to
evade review. 
          We agree with ARBA.  This is an appeal concerning the
summary of a voter initiative proposal provided by the lieutenant
governor.  Although such appeals typically must be decided by
election day to avoid becoming moot, [Fn. 21] there is no reason to
believe that we cannot resolve such appeals in a timely fashion. 
Indeed, we have frequently done that. [Fn. 22]  The election laws
require that initiatives be submitted and approved well in advance
of the actual election, [Fn. 23] and challenges to the lieutenant
governor's determination must be brought within thirty days of
notice of the lieutenant governor's action. [Fn. 24]  This allows
time for legal challenges to the certification of the proposal to
be timely resolved.  The cases where such challenges have been
timely resolved belie the state's argument that the issues in this
appeal will evade review. [Fn. 25]
          We agree that providing guidance to the courts and the
lieutenant governor as to what constitutes a sufficient petition
summary might in another case be important enough to the public
interest to justify overriding the mootness doctrine.  But in this
case there is nothing to be gained from review of the merits.  We
have already set forth the test for the sufficiency of a petition
summary and the criteria for review. [Fn. 26]  Review of the merits
in this case would add nothing to that test -- it would only
address a now-dead proposal to increase the alcoholic beverage tax
by  percentages that may not ever be proposed again.  As there is
no current controversy related to those upon whom the tax would
actually be imposed, an opinion on that issue would be purely
advisory.  We therefore conclude that the public interest exception
to the mootness doctrine does not apply in this case.
          Because this case is moot and no exception to the
mootness doctrine applies, this appeal is DISMISSED.


Footnote 1:

     Throughout this opinion we refer to the appellants
collectively as "ARBA," an acronym denoting the first named
appellant, Alaska Restaurant and Beverage Association.

Footnote 2:

     AS 43.60.010 provides:

          (a) Every brewer, distiller, bottler, jobber,
retailer, wholesaler, or manufacturer who sells alcoholic
beverages in the state or who consigns shipments of alcoholic
beverages into the state, whether or not the alcoholic beverages
are brewed, distilled, bottled, or manufactured in the state,
shall pay on all malt beverages (alcoholic content of one percent
or more by volume), wines, and hard or distilled alcoholic
beverages, the following taxes:
               (1) malt beverages at the rate of 35
cents a gallon or fraction of a gallon;
               (2) wine or other beverages of 21
percent alcohol by volume or less, at the rate of 85 cents a
gallon or fraction of a gallon;  and
               (3) other beverages having a content of
more than 21 percent alcohol by volume at the rate of $5.60 a

Footnote 3:

     See AS 15.45.090(2).

Footnote 4:

     AS 15.45.090(1) provides that the initiative petition must
contain "a copy of the proposed bill if the number of words
included in both the formal and substantive provisions of the
bill is 500 or less."

Footnote 5:

     AS 15.45.240 provides that "[a]ny person aggrieved by a
determination made by the lieutenant governor under AS 15.45.010-
15.45.220 may bring an action in the superior court to have the
determination reviewed within 30 days of the date on which notice
of the determination was given."

Footnote 6:

     Because the lieutenant governor was sued in her official
capacity, the parties and the superior court referred to her as
"the state."  This opinion does so as well.

Footnote 7:

     AS 15.45.140 provides:

               The sponsors must file the initiative
petition within one year from the time the sponsors received
notice from the lieutenant governor that the petitions were ready
for delivery to them, and the petition must be signed by
qualified voters equal in number to 10 percent of those who voted
in the preceding general election and resident in at least
two-thirds of the house districts of the state.  If the petition
is not filed within the one-year period provided for in this
section, the petition has no force or effect. 

Footnote 8:

     See Kleven v. Yukon-Koyukuk School Dist., 853 P.2d 518, 525
n.13 (Alaska 1993) (citing Bowers Office Prod. v. University of
Alaska, 755 P.2d 1095, 1096 (Alaska 1988)).

Footnote 9:

     O'Callaghan v. State, 920 P.2d 1387, 1388 (Alaska 1996)
(internal quotation marks omitted). 

Footnote 10:

     Gerstein v. Axtell, 960 P.2d 599, 601 (Alaska 1998)
(internal quotation marks and citations omitted) (brackets in

Footnote 11:

     15 Martin H. Redish, Moore's Federal Practice  101.90 (3d
ed. 1998).

Footnote 12:

     Trustees for Alaska v. State, 736 P.2d 324, 327 (Alaska

Footnote 13:

     See Redish, Moore's Federal Practice  101.90.

Footnote 14:

     Id. at sec. 101.80[1].

Footnote 15:

     651 P.2d 839, 840 n.1 (Alaska 1982).

Footnote 16:

     See id.

Footnote 17:

     See id.; see also Hickel v. Southeast Conference, 868 P.2d
919, 928 (Alaska 1994).

Footnote 18:

     See Legislative Council v. Knowles, 988 P.2d 604, 606
(Alaska 1999).

Footnote 19:

     Kodiak Seafood Processors Ass'n v. State, 900 P.2d 1191,
1196 (Alaska 1995) (internal citation omitted).

Footnote 20:

     The state contends that the issues for review include
"whether a very minor inaccuracy in a petition summary renders
the summary invalid, and how much detail the lieutenant governor
is required to include in a summary."  

Footnote 21:

     On occasion, we have ordered an election stayed pending
final appeal of a certification decision.  See, e.g., Faipeas v.
Municipality of Anchorage, 860 P.2d 1214 (Alaska 1993).

Footnote 22:

     See McAlpine v. University of Alaska, 762 P.2d 81 (Alaska
1988) (expediting appeal and resolving case before November
election); Burgess v. Miller, 654 P.2d 273, 277 n.* (Alaska 1982)
(announcing decision in an order issued August 19, 1982, in
advance of November election).

Footnote 23:

     See AS 15.45.190.

Footnote 24:

     See AS 15.45.240.

Footnote 25:

     See, e.g., Burgess v. Alaska Lieutenant Governor Terry
Miller, 654 P.2d 273, 274 (Alaska 1982).  There, the challenge to
the petition summary did not occur until after the initiative
sponsors had collected the requisite number of signatures, filed
the petition with the lieutenant governor, and been informed that
the proposed language would be placed on the ballot.  See id. 
Nonetheless, the issue was resolved before the election by this

          Numerous cases from other states have addressed the
adequacy of petition summaries, supporting the argument that such
issues do not repeatedly evade review.  See, e.g., Mason v.
Jernigan, 540 S.W.2d 851 (Ark. 1976); Hope v. Hall, 316 S.W.2d
199 (Ark. 1958); Epperson v. Jordan, 82 P.2d 445 (Cal. 1938); In
re Second Initiated Constitutional Amendment Respecting the
Rights of the Pub. of Uninterrupted Serv. by Pub. Employees of
1980, 613 P.2d 867 (Colo. 1980); Say v. Baker, 322 P.2d 317
(Colo. 1958); Priestly v. Paulus, 597 P.2d 829 (Or. 1979).

Footnote 26:

     See Burgess, 654 P.2d at 275-76.