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Kodiak Island Borough v. Mahoney (6/20/2003) sp-5706
Kodiak Island Borough v. Mahoney (6/20/2003) sp-5706
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
KODIAK ISLAND BOROUGH and )
JUDITH A. NIELSEN, Clerk, ) Supreme Court No. S-10606
)
Appellants, ) Superior Court No.
) 3KO-01-00207 CI
v. )
) O P I N I O N
EDWARD MAHONEY, )
) [No. 5706 - June 20, 2003]
Appellee. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kodiak,
Morgan Christen, Judge.
Appearances: C. Walter Ebell and Walter W.
Mason, Jamin, Ebell, Schmitt & Mason,
Anchorage, for Appellants. Kenneth P.
Jacobus, Kenneth P. Jacobus, P.C., Anchorage,
for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
FABE, Chief Justice.
I. INTRODUCTION
Edward Mahoney, a Kodiak Island Borough resident who
proposed a municipal term limits ballot initiative, sought
declaratory relief against the municipal clerk who refused to
certify the initiative. This appeal raises the questions whether
a municipal clerk may refuse to certify a proposed initiative on
constitutional grounds and whether that clerk may refuse to make
technical corrections to a proposed initiative that is
technically flawed. We conclude that a clerk should certify an
initiative even if it contains a proposal that raises
constitutional questions. We also conclude, and the parties
agree, that the best way for a clerk to handle a technically
deficient initiative is to point out the needed correction and
require the proposing citizen to resubmit a corrected version.
Finally, because we do not hear substantive challenges to
initiatives until the voters pass them, we decline to address the
constitutionality of the term-limits initiative proposed by
Mahoney.
II. FACTS AND PROCEEDINGS
On May 17, 2001, Edward Mahoney filed with Judith A.
Nielsen, the Kodiak Island Borough Clerk, an application for an
initiative petition proposing mayoral term limits. Mahoney
sought to place the following ordinance before the voters: This
initiative proposes a ballot measure which if passed by [the]
voters would limit the Borough Mayor to serving no more than two
(2) consecutive elected terms.
Nielsen refused to certify the application on the basis
that [the ordinance] would not be enforceable as a matter of law.
Nielsen based this conclusion on the Borough attorneys legal
opinion that the proposed initiative limits the ability of a
citizen to run for office [] and . . . limits the right of
Borough residents to vote for the candidate of their choice.
Mahoney filed suit in the superior court and sought an injunction
requiring Nielsen to prepare the petition and place it on the
ballot. The superior court granted Mahoney summary judgment and
declaratory relief, ordering the clerk to accept the initiative
petition. The Borough now appeals.1
The Borough defends the clerks decision on two grounds,
arguing first that a clerk may not certify an application for an
initiative petition unless she can conclude unequivocally that
the proposed ordinance will be enforceable as a matter of law,
and arguing second that the clerk appropriately rejected the
proposed initiative because it is meaningless . . . [and] a
nullity as written. The Borough also contends that even if the
clerk should have certified the application, we should reverse
the superior courts order that the initiative be submitted to the
voters because the initiatives substantive proposal of mayoral
term limits is unconstitutional.
III. STANDARD OF REVIEW
We review grants of summary judgment de novo,
exercising our independent judgment to determine whether the
parties genuinely dispute any material facts and, if not, whether
the undisputed facts entitle the moving party to judgment as a
matter of law.2
This case involves issues of statutory interpretation.
Statutory interpretation is an issue of law.3 In determining
legal issues, we exercise our independent judgment, adopt[ing]
the rule of law that is most persuasive in light of precedent,
reason, and policy.4 Furthermore, when reviewing initiative
challenges, we liberally construe constitutional and statutory
provisions that apply to the initiative process.5
IV. DISCUSSION
The Borough raises two arguments in defense of the
clerks refusal to certify the initiative petition. First, it
argues that a clerk may not certify an application for an
initiative petition unless she can conclude unequivocally that
the proposed ordinance will be enforceable as a matter of law.
Second, it maintains that the proposed initiative may not be
submitted to the voters because it is meaningless . . . [and] a
nullity as written.
The Borough contends that the municipal initiative
statute, AS 29.26.110, requires a clerk to conclude with
certainty that the substantive proposal of an initiative is
constitutional before she certifies it. It contends that [t]he
statute does not permit [the clerk] to certify questionable
matters that would be subject to challenge only after being
adopted by the voters. The Borough bases its argument on AS
29.26.110(a), which provides:
[T]he clerk shall certify the application if
the clerk finds that it is in proper form
and, for an initiative petition, that the
matter
(1) is not restricted by AS 29.26.100;
(2) includes only a single subject;
(3) relates to a legislative rather
than to an administrative matter; and
(4) would be enforceable as a matter of
law.
According to the Borough, [b]ecause there is no controlling
authority stating that term limits are constitutional in Alaska,
Ms. Nielsen could not affirmatively conclude that the matter
proposed by Mr. Mahoney would be enforceable as a matter of law.
This is the first time that we have been asked to
interpret AS 29.26.110(a)(4). Because citizens may submit
initiatives proposing ordinances whose potential constitutional
issues have not yet been reviewed or resolved, and because courts
must read initiative statutes liberally, we reject the Boroughs
reading and interpret AS 29.26.110(a)(4) to mean that clerks
should only deny initiative petitions that violate the
constitutional and statutory rules regulating initiatives or that
propose ordinances for which controlling authority precludes
enforcement as a matter of law.
Prior to setting forth our rationale for declining to
follow the Boroughs reading of AS 29.26.110(a)(4), we first lay
out the role and procedural structure of initiatives and explain
how AS 29.26.110(a)(4) creates confusion in this structure. In
an attempt to foster direct democratic participation, the Alaska
Constitution and certain Alaska statutes allow for voter
initiatives.6 These initiatives appear on the ballot when a
citizen submits an initiative with a certain number of signatures
to either a municipal clerk or to the lieutenant governor,
depending on whether the initiative is local or state-wide.7
Prior to placing the initiative petition on the ballot, the clerk
or lieutenant governor certifies the initiative petition after
making sure that it does not run afoul of the constitutional and
statutory provisions regulating initiatives.8 Prior to the
election, courts will review only the question whether an
initiative meets the constitutional and statutory provisions
regulating initiatives. Courts will not review the
constitutionality of the substantive initiative proposal until
and unless the voters pass the ordinance.9 But AS
29.26.110(a)(4) prevents a clerk from certifying an initiative
that proposes an unenforceable ordinance. The Borough argues
that a clerk, in order to decide whether an ordinance is
enforceable, must first determine the constitutionality of the
substantive initiative proposal prior to the vote on the
initiative.
We have implicitly rejected the Boroughs contention
that a clerk may not certify an issue that could later be subject
to constitutional challenge. In Brooks v. Wright,10 we
distinguished between pre-election and post-election reviews of
petitions. We clarified that pre-election review is limited to
determining whether [the initiative] complies with the particular
constitutional and statutory provisions regulating initiatives;11
whereas, [g]eneral contentions that the provisions of an
initiative are unconstitutional are justiciable only after the
initiative has been enacted by the electorate.12 The Boroughs
argument that citizens may not propose an initiative raising any
constitutional issues of first impression contradicts Brookss
implicit ruling that initiatives containing unresolved
constitutional issues should go to the electorate.
Even without the Brooks decision, the Boroughs argument
fails. The Borough argues that AS 29.26.110(a)(4)s plain meaning
requires the court to conclude that clerks may only certify
initiatives with clearly constitutional propositions and, as a
result, may not certify initiatives that contain constitutional
issues of first impression within them. Yet while the statutory
language requires the clerk, in certifying an initiative, to find
that the initiative would be enforceable as a matter of law,13 it
does not suggest that the clerk should reject proposals that
raise constitutional questions that have never been addressed.
In deciding how to read the statute, Superior Court
Judge Morgan Christen rejected the Boroughs argument. Her
reasoning is convincing:
It is not the Clerks duty to reject every
petition that may raise a constitutional
issue, unless the Alaska Supreme Court has
already decided the constitutional issue in a
manner favorable to the proposed initiative.
To do so would effectively be a decision by
the Clerk that a proposal is unconstitutional
merely because no authority exists expressly
declaring it constitutional. If this were
permitted, every initiative raising an issue
of first impression would be defeated before
reaching the voters.
(Citation omitted.)
As Judge Christen recognized, the Boroughs
interpretation would deprive the voters of access to the
initiative process for all issues of first impression, and cannot
be the correct result. The Alaska Constitution expressly allows
for expansive direct democracy through initiatives: Unless
clearly inapplicable, the law-making powers assigned to the
legislature may be exercised by the people through the
initiative[.]14 Because the Alaska Constitution preserves the
peoples power to propose and enact laws through initiatives, we
have repeatedly held that courts must give statutory and
constitutional regulations of initiatives liberal, broad
readings.15 This further dissuades us from adopting the Boroughs
narrow reading of AS 29.26.110(a)(4).
The presumption of constitutionality that we apply to
all duly enacted rules and laws influences our reading that AS
29.26.110(a)(4) only prevents clerks from certifying clearly
unconstitutional ordinances. We have stated that there is a
presumption of constitutionality which attaches to [statutes and
rules].16 It basically follows from this presumption that a clerk
must presume an initiative to be constitutional absent clear
authority establishing its invalidity.
We read the clerks power to declare an initiative
proposal unconstitutional as being somewhat analogous to the
power of a state executive agency to declare a state statute
unconstitutional. In both cases it is the courts, not the clerk
or the executive, that are primarily responsible for
constitutional adjudication. Yet in order to avoid a waste of
resources and needless litigation it is right that the latter
should have the power to refuse to give life to proposals or laws
that are clearly unconstitutional. In the case of executive
agencies we have held that they have authority to abrogate a
statute which is clearly unconstitutional under a United States
Supreme Court decision dealing with a similar law, without having
to wait for another court decision specifically declaring the
statute unconstitutional.17 Similarly, we believe that a
municipal clerk should have the authority to reject an initiative
proposal under AS 29.26.110(a)(4) if the proposal is clearly
unconstitutional.
Finally, comparison to 42 U.S.C. 1983 cases informs
our conclusion that a municipal clerk pursuant to AS
29.26.110(a)(4) may only reject on substantive grounds a pre-
election petition that proposes a clearly unconstitutional
ordinance. In a 1983 suit, a plaintiff asserts a private right
of action against a defendant who, acting under color of state
authority, allegedly deprived plaintiff of constitutional rights.18
However, a 1983 defendant may assert an affirmative defense that
he was not depriving plaintiff of a clearly established
constitutional right.19 While in theory 1983 protects all
constitutional rights, courts in practice have read 1983 as only
unconditionally protecting clearly established constitutional
rights.20 Similarly, we interpret AS 29.26.110(a)(4) as precluding
only clearly unconstitutional proposals.21
For the reasons stated above, we hold that a clerk, in
determining whether an initiative would be enforceable as a
matter of law, should only reject a petition that violates any of
the liberally construed statutory or constitutional restrictions
on initiatives or that proposes a substantive ordinance where
controlling authority establishes its unconstitutionality.22
The Boroughs second argument in defense of the clerks
decision to reject the proposed initiative is that the clerk may
not change the wording of the initiative, which as drafted . . .
is meaningless. The initiative as proposed states: This
initiative proposes a ballot measure which if passed by [the]
voters, would limit the Borough Mayor to serving more than two
(2) consecutive elected terms. (Emphasis added.) Because the
initiative proposes a ballot measure rather than an ordinance,
the initiative, as written, would require people to vote to
determine whether there should be a vote.
Mahoney concedes that the wording is flawed but argues
that the clerk could have corrected the language since the intent
of the initiative is clear. The Borough responds that AS
29.26.120(a)(2) prevents the clerk from changing the initiative
language and that the initiative language as written creates a
superfluous initiative. The superior court agreed with Mahoney.
But the clerk did not reject the initiative on the
ground that its wording was flawed and thus cannot now rely on
this argument to justify her decision. Moreover, at oral
argument, the parties agreed that the best way to handle a
technically flawed initiative would be for the clerk to point out
the deficiency and inform the proposing citizen what was
necessary to correct it, allowing resubmission of the corrected
initiative. The parties clarified at oral argument that the term
limits initiative has yet to appear on the ballot; therefore, it
is not too late to follow this agreed-upon procedure.
Consequently, we need not decide whether it would have been
proper for the clerk to make the technical correction on Mahoneys
petition.23
Finally, because general contentions about an
initiatives constitutionality are justiciable only after the
initiative has been passed by the electorate,24 we need not decide
at this time whether mayoral term limits are constitutional.
V. CONCLUSION
Because a clerk may certify an initiative that contains
a proposal that is subject to a constitutional challenge, because
the parties agree that the best way to handle the technically
deficient initiative in this case is to have Mahoney resubmit the
initiative, and because we do not hear substantive challenges to
initiatives until the voters pass them, we AFFIRM the superior
courts decision that the clerk should not have rejected the
ballot initiative on constitutional grounds, but we VACATE its
determination that the clerk could change the initiatives
language. We REMAND for proceedings consistent with this
opinion.
_______________________________
1 At oral argument, the parties indicated that the
initiative has yet to appear on the ballot.
2 State, Dept of Health & Soc. Servs. v. Planned
Parenthood of Alaska, Inc., 28 P.3d 904, 908 (Alaska 2001)
(internal quotations omitted).
3 D.H. Blattner & Sons, Inc. v. N.M. Rothschild & Sons,
Ltd., 55 P.3d 37, 41 (Alaska 2002).
4 Robles v. Shoreside Petroleum, Inc., 29 P.3d 838, 841
(Alaska 2001) (internal quotations omitted).
5 Brooks v. Wright, 971 P.2d 1025, 1027 (Alaska 1999);
Interior Taxpayers Assn, Inc. v. Fairbanks N. Star Borough, 742
P.2d 781, 782 (Alaska 1987).
6 Alaska Const. art. XI & XII, 11, AS 29.26.100-.190,
and AS 15.45.010- .245 deal with initiatives.
7 AS 29.26.110-.140; AS 15.45.030 & .080.
8 AS 29.26.140; AS 15.45.040 & .080.
9 Brooks v. Wright, 971 P.2d 1025, 1027 (Alaska 1999).
10 971 P.2d 1025, 1027 (Alaska 1999).
11 Id. (internal quotations omitted).
12 Id. (internal quotations omitted).
13 AS 29.26.110(a)(4). The Borough also argues that the
clerk must deny certification unless it is clear that the
ordinance would be enforceable as a matter of law . . . . We
believe that the legislature intended enforceable as a matter of
law to mean legally enforceable rather than clearly enforceable.
14 Alaska Const. art. XII, 11; Yute Air Alaska, Inc. v.
McAlpine, 698 P.2d 1173, 1181 (Alaska 1985).
15 Brooks v. Wright, 971 P.2d 1025, 1027 (Alaska 1999);
Yute Air Alaska, Inc. v. McAlpine, 698 P.2d 1173, 1181 (Alaska
1985); Municipality of Anchorage v. Frohne, 568 P.2d 3, 8 (Alaska
1977).
16 DeNardo v. ABC Inc. RVS Motorhomes, 51 P.3d 919, 928
(Alaska 2002) (quoting A. Fred Miller Attorneys at Law v. Purvis,
921 P.2d 610, 618 (Alaska 1996)).
17 OCallaghan v. State, Director of Elections, 6 P.3d 728,
730 (Alaska 2000) (citing OCallaghan v. Coghill, 888 P.2d 1302,
1304 (Alaska 1995)).
18 42 U.S.C.A. 1983 (1994).
19 Wood v. Strickland, 420 U.S. 308, 322 (1975); David J.
Oliveiri, Annotation, Defense of Good Faith in Action for Damages
Against Law Enforcement Official Under 42 USCS 1983, Providing
for Liability of Person Who, Under Color of Law, Subjects Another
to Deprivation of Rights, 61 A.L.R. Fed. 7, 22 (1983).
20 A court may still hold a 1983 defendant liable if he
subjectively believes that he is violating a constitutional right
even if it is not a clearly established one. Oliveiri, supra
note 19, at 17 (affirmative defense of good faith to a 1983
claim has subjective and objective elements).
21 Because the language of AS 29.26.110(a)(4) requires the
rejection of initiative petitions that would be unenforceable as
a matter of law, we also believe that a clerk must reject an
initiative that proposes an ordinance which is merely
aspirational or which otherwise lacks the attributes of an
enforceable law. For example, the proposal must be
comprehensible and concrete enough to be capable of enforcement.
22 For example, a clerk should reject an initiative that
is properly submitted procedurally but that proposes an ordinance
mandating local school segregation based on race. See Brown v.
Board of Educ. of Topeka, Kan., 349 U.S. 294 (1955) (ruling that
racial school segregation is unconstitutional).
23 However, we note that the Borough makes a strong
argument that it would have been inappropriate for the clerk to
revise the wording of the proposed initiatives given AS
29.26.120s statement that a clerk should submit to the voters the
proposed ordinance as submitted by the sponsors.
24 Brooks v. Wright, 971 P.2d 1025, 1027 (Alaska 1999).
