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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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).