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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alaska Action Center, Inc. v. Municipality of Anchorage (02/06/2004) sp-5779

Alaska Action Center, Inc. v. Municipality of Anchorage (02/06/2004) sp-5779

     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


ALASKA ACTION CENTER, INC.,   )
                              )    Supreme Court No. S-11252
             Appellant,            )
                              )    Superior Court No.
     v.                       )    3AN-03-05921 CI
                              )
MUNICIPALITY OF ANCHORAGE,    )    O P I N I O N
                              )
              Appellee.             )    [No. 5779 - February  6,
2004]
________________________________)



          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Mark Rindner, Judge.

          Appearances:  Valerie L. Brown, Trustees  for
          Alaska, Anchorage, for Appellant.  Joseph  D.
          OConnell,  Assistant Municipal Attorney,  and
          Frederick   H.  Boness,  Municipal  Attorney,
          Anchorage, for Appellee.

          Before:   Bryner,  Chief Justice,  Fabe,  and
          Carpeneti, Justices.  [Matthews and Eastaugh,
          Justices, not participating.]

          FABE, Justice.


I.   INTRODUCTION

          This  expedited appeal concerns an initiative  proposed

by  citizens of Girdwood, aimed at preserving much of  the  lower

end of Girdwood valley as a park.  The land is currently owned by

the  Municipality of Anchorage and has been subject to  extensive

study  and  planning, much of it aimed at the  development  of  a

private golf course.  The Anchorage municipal clerk rejected  the

initiative petition on the advice of the municipal attorney,  who

maintained    that   it   would   constitute   an   impermissible

appropriation.   Alaska Action Center (AAC)  appeals  the  clerks

decision,  arguing that the clerk does not have the authority  to

reject the initiative petition on those grounds, and that in  any

event  the decision to reject it was wrong because the initiative

does  not  propose  an  appropriation.  We affirm,  holding  that

executive   officers   are  empowered   to   review   prospective

initiatives  to  ensure  that  they  comply  with  statutory  and

constitutional subject-matter restrictions and that the  proposed

Girdwood initiative was properly rejected because the designation

of  parkland would effect an appropriation.  We further hold that

the impermissible park designation should not be severed from the

rest  of the initiative because no other portion may be certified

in its absence.

II.  FACTS AND PROCEEDINGS

          The  Municipality  of  Anchorage owns  several  hundred

undeveloped  acres in the lower end of Girdwood valley.   Through

several rounds of study and planning, the Municipality identified

a  golf course as a potential use for the land, and attempted  to

lease 730 acres of the land to a private developer in 1997.  This

lease  was found unlawful on a number of grounds, including  that

it  failed  to  conform with Anchorage code provisions  requiring

leases to reflect the lands market value.1  When the Municipality

changed its ordinance to allow below-market leases, some Girdwood

citizens launched a municipal initiative.

          The  proposed  initiative  would  amend  the  Anchorage

charter,  adding Article XXII.  Section 22.01 sets out  a  Policy

Statement, expressing that the eastern lower Girdwood  valley  is

largely unsuitable for development and is best preserved  in  its

natural  state.  Section 22.02 dedicates as a park that  specific

land identified in Section 22.03 as the 730 acres subject to  the

flawed  1997 lease, excluding such 61 acres located north  of  60

57'  5"  North  latitude that the Anchorage Planning  and  Zoning

Commission  and the Municipal Assembly may select for development

          for single-family dwellings and commercial development.  Section

22.03 also sets minimum lot sizes for the residential development

and  requires that any sales or leases be for fair market  value.

Sections 22.04 and .05 limit development within the park to seven

acres  of  campground and an educational or recreational  center,

the  construction of hiking or cross-country skiing  trails,  and

the  maintenance  of  existing roads or  rights-of-way.   Section

22.06  bars any use of the park for a golf course or other  golf-

related uses.  Finally, Section 22.07 is a severability clause.

          The sponsors submitted their initiative petition to the

municipal  clerk for certification in accordance  with  Anchorage

Municipal  Code  2.05.050.   The clerk  refused  to  certify  the

petition,  relying  on  an  opinion  letter  from  the  municipal

attorney,   which   advised  that  the   petition   was   legally

insufficient  because it proposed an appropriation. AAC  appealed

the  clerks action to the superior court, where both AAC and  the

Municipality  moved  for summary judgment.   The  superior  court

granted  judgment to the Municipality, and AAC appealed  to  this

court.

III. DISCUSSION

     A.   Standard of Review

          This court reviews a grant of summary judgment de novo.2

The questions we address in this case  the authority of executive

officers,  the  meaning of the constitutional term appropriation,

and  the  severability  of  parts  of  the  initiative   are  all

questions  of  law.  To these we apply our independent  judgment,

adopt[ing]  the rule of law that is most persuasive in  light  of

precedent, reason, and policy.3

     B.   A  Municipal  Clerk  Has  the Authority  To  Reject  an
          Initiative on Subject-Matter Grounds.
          
          By statute, the power of lawmaking by initiative on the

local   level  is  reserved   to  the  people  of  a  home   rule

municipality.4  Also by statute, this power may not  be  used  to

take  any of the actions listed in article XI, section 7  of  the

Alaska Constitution.5  Under article XI, section 7, an initiative

          may not be used to make or repeal appropriations.6  The clerk of

the  Municipality of Anchorage refused to certify the  initiative

petition on the advice of the municipal attorney, who asserted in

a  brief  opinion that if passed, the initiative would effect  an

appropriation.   AAC  challenges the clerks power  to  make  this

determination  in  the absence of clearly controlling  precedent,

claiming that allowing an officer of the executive branch to keep

an  initiative  off  the  ballot  violates  separation  of  power

principles.   A  review of our cases dealing with the  timing  of

initiative  challenges shows that the clerk did  not  exceed  her

authority.

          The  constitutionality of an initiative may be reviewed

either  before it goes to the voters or after it is enacted.   We

have  divided  challenges into two categories to  determine  when

review  is  proper.  One type of challenge invokes the particular

constitutional and statutory provisions regulating  initiatives.7

The  executive  officer in charge of certifying  initiatives   in

this  case,  the municipal clerk  has discretion  to  reject  the

measure  if  she determines it violates any of the[se]  liberally

construed restrictions on initiatives,8 and the courts may review

the clerks decision right away.9  Separation of powers principles

are  not  offended by this procedure, as these restrictions  were

devised  to  prevent  certain questions  from  going  before  the

electorate at all;10 an executive officer must play the gatekeeper

role  in  the  first instance.  Other challenges are grounded  in

general  contentions  that the provisions of  an  initiative  are

unconstitutional.11  The executive officer may  only  reject  the

measure  if  controlling authority leaves no  room  for  argument

about its unconstitutionality.12  The initiatives substance  must

be  on  the order of a proposal that would mandat[e] local school

segregation  based  on race in violation of  Brown  v.  Board  of

Education  before  the  clerk  may reject  it  on  constitutional

grounds.13  And absent controlling authority, the court should not

decide  this  type  of  challenge until the initiative  has  been

          enacted by the voters.14

          The distinction between these two classes of initiative

challenges  is well illustrated by a comparison of the  challenge

we  declined to address in Kodiak Island Borough v. Mahoney  with

the  one we reviewed in Brooks v. Wright.  In Mahoney, the Kodiak

municipal  clerk rejected a proposed initiative that  would  have

imposed term limits on the borough mayor, on the ground that such

term limits would violate the Alaska Constitution.15  We held that

the  clerks decision was inappropriate in the absence of  clearly

controlling  authority, and we did not reach the  merits  of  the

constitutionality of the term limits proposal.16   In  Brooks,  a

group of citizens challenged a proposed initiative that would ban

the use of snare traps on wolves; the suit was brought before the

ballot  measure  went before the electorate.17   The  challengers

claimed  that  under  article  XII,  section  11  of  the  Alaska

Constitution, which allows the law-making powers assigned to  the

legislature to be exercised through the initiative process except

when  the initiative is clearly inapplicable, the snare trap  ban

could not be enacted by ballot measure.18  We addressed the merits

of  their  complaint, finding that the measure could  go  to  the

voters.

          The  crucial difference between these two claims is  in

what  they  say  is wrong with the initiative.  In  Mahoney,  the

clerk  was  assessing the substance of the proposed ordinance  to

determine  whether it was unconstitutional.  The  validity  of  a

term limits statute would not depend on whether it was enacted by

initiative  or by the legislature.  It was the clerks  contention

that   the   underlying   provisions  of  the   initiative   were

unconstitutional, but this question could be decided  only  after

enactment  and  was  therefore beyond  the  clerks  authority  to

review.   On the other hand, the challenge that we considered  in

Brooks  was the initiative opponents claim that the peoples  law-

making  authority through the initiative process did not  include

the  power to ban snare traps.  Thus, the argument before  us  in

          Brooks went directly to the use of the initiative process itself

to  ban  snare  traps  rather than to the propriety  of  the  ban

itself,  even if passed by the legislature.  As a challenge  only

to  the  use of the initiative process to enact the statute,  not

its  substance,  the  Brooks appellees claim  was  based  on  the

constitutional restrictions on initiatives.  This challenge could

be  reviewed   both  by the executive branch and  by  the  courts

before the election.

          This  review  of our case law shows that subject-matter

limitations  on  initiatives  that is, provisions  that  set  out

topics  that  may  not be legislated by the ballot  process   are

among the grounds for pre-election review.19  The proscriptions of

AS 29.26.100 and article XI, section 7 of the Alaska Constitution

are  such  subject-matter restrictions.  The Anchorage clerk  was

thus acting within her authority when she rejected the initiative

on the ground that it would make an appropriation.

     C.   The   Girdwood   Initiative   Proposes   To   Make   an

          Appropriation.

          The  Anchorage clerk and the superior court  determined

that  the  Girdwood initiative would effect an appropriation  and

therefore  was  a  barred use of the initiative  power  under  AS

29.26.100  and  article XI, section 7 of the Alaska Constitution.

An  initiative proposes to make an appropriation if it would  set

aside  a  certain  specified amount of money or  property  for  a

specific  purpose  or  object  in  such  a  manner  that  it   is

executable,  mandatory, and reasonably definite with  no  further

legislative action.20  Although appropriation is often understood

to refer to money, an initiative setting aside land, or any other

type of government property, may also be an appropriation.21   The

same  definition applies whether the initiative is  municipal  or

statewide.22

          Our  decisions  reflect  two  core  objectives  of  the

limitation on using initiatives to make appropriations.23  First,

the provision prevents an electoral majority from bestowing state

          assets on itself.24  This concern comes into play when the

initiative  would  enact  a give-away, forcing  the  state  or  a

municipality to transfer assets into private hands, as  with  the

land  give-away in Thomas v. Bailey,25 the transfer of  Municipal

Light  &  Power  to a private cooperative in Alaska  Conservative

Political Action Committee v. Municipality of Anchorage,26 or the

realignment of fishery priorities in Pullen v. Ulmer.27   Neither

party suggests that the Girdwood initiative is a give-away.

          Second,  the  limitation on initiatives preserve[s]  to

the  legislature  the  power  to make  decisions  concerning  the

allocation   of   state  assets.28   This  ensure[s]   that   the

legislature, and only the legislature, retains control  over  the

allocation of state assets among competing needs.29  This concern

is  implicated in cases in which the initiative designate[s]  the

use  of  state  assets,30  even if the  assets  remain  in  state

ownership.   The primary case demonstrating this  aspect  of  the

rule   against  appropriation  by  initiative  is   McAlpine   v.

University of Alaska.31  The initiative in that case proposed the

creation  of  a  community  college  system  separate  from   the

University  of  Alaska.  It would have given the  university  two

mandates:   first,  it  required  the  university  to  give   the

community college system such . . . property as is necessary  for

its  operation.32   Second,  it required  that  [t]he  amount  of

property transferred shall be commensurate with property held  by

the  former  community college system on a certain  date.33   The

court  held  that the first requirement was not an  appropriation

because  the  university retained discretion to decide  both  the

identity and the amount of property to give the community college

system.34  But the second, which set a specific amount of property

to  be transferred, was held to be an impermissible appropriation

because it would leave the university with only the discretion to

designate the precise articles or parcels to be transferred.35

          The  Girdwood  initiative cannot be distinguished  from

the impermissible section of the initiative in McAlpine.  In both

          cases, the initiatives designate the use of36 specified amounts of

public assets in a way that encroaches on the legislative branchs

exclusive  control  over the allocation  of  state  assets  among

competing needs.37

          AAC attempts to distinguish McAlpine by noting that the

initiative there would transfer the property irrevocably from one

state agency, the university, to another  the university could do

nothing  to  get  it  back.   AAC  maintains  that  the  Girdwood

property,  by contrast, could not be transferred and could  still

be  managed  by the Anchorage Assembly.  Although the initiatives

amendment  of the Anchorage Municipal Charter would preclude  the

Assembly  itself from altering the lands status  as  a  dedicated

park,  AAC  notes  that voters could revoke the dedication  by  a

later initiative.38  But McAlpine did not rest its ruling on  the

fact  that  the initiative at issue there would have  required  a

formal  land  transfer; the ruling focused on the fact  that  the

initiative directed a specific amount of property to be used  for

a specified purpose.

          Moreover,  our  cases  establish that  the  prohibition

against appropriating land by initiative in this manner is  meant

to  ret[ain]  . . . control of the appropriation process  in  the

legislative body.39  Here, by limiting the mechanism  for  future

change  to another initiative process, the initiatives dedication

requirement necessarily intrudes on the legislatures control over

future  designation.  The Girdwood initiatives designation  of  a

specific parcel of land as parkland cannot be distinguished  from

the  designation in McAlpine.  It intrudes on decisions  reserved

by  statute  and  constitution  to  the  assembly  by  making  an

appropriation.   The  Anchorage clerk was  therefore  correct  to

refuse to place the initiative on the ballot.

     D.   No Section of the Initiative May Be Certified.

          The  Anchorage clerk denied certification of the entire

ballot measure, and the superior court affirmed.  AAC argues that

even  if  part  of  the initiative violates  the  prohibition  on

          appropriations, that section should be severed and the rest of

the  measure  should be allowed on the ballot.  We  exercise  our

power   to  sever  an  impermissible  section  of  an  initiative

circumspectly40 and only when the following conditions  are  met:

(1)  standing alone, the remainder of the proposed  bill  can  be

given  legal effect; (2) deleting the impermissible portion would

not substantially change the spirit of the measure; and (3) it is

evident  from  the  content of the measure and the  circumstances

surrounding its proposal that the sponsors and subscribers  would

prefer  the  measure  to  stand as altered,  rather  than  to  be

invalidated in its entirety.41  AAC identifies four aspects of the

initiative  that  would not be eliminated by  our  decision  that

designating the tract as parkland is an appropriation:   (1)  the

policy  statement about the interests of the voters in  having  a

park;  (2) the severability clause; (3) the requirement that  the

Municipality  receive  fair  market  value  if  it   sells   land

designated  for commercial or residential use in the  initiative;

and (4) the prohibition on using the land as a golf course.

          The  policy statement can be given no legal effect, and

the  severability clause only has any force if other sections  of

the  initiative are saved.  The sponsors of the initiative wanted

a  golf-free park in the lower Girdwood valley, but with the park

designation  severed, the measure would eliminate  any  golf  use

while   leaving  open  the  full  range  of  options  for   other

development  of the land.  The assembly may dispose of  the  land

and designate it for any number of uses.  The measures supporters

have  expressed a preference for a golf-free park over the  lands

current status.  But in view of many of the possibilities   high-

density  residential or commercial development, for  example   we

cannot  assume  that golf would never be the initiative  sponsors

preference  when  weighed against the other development  options.

We  cannot  allow  the golf prohibition to go before  the  voters

without the park designation.

          The  fair market value clause by its own terms  applies

          only to the sixty-one acres designated by the initiative as open

to   residential  and  commercial  development.   The  initiative

states:  All land designated for commercial or residential use in

this Section 22.03 may be sold or leased only for its fair market

value . . . .   Proposed section 22.03 allows the municipality to

select   sixty-one   acres  for  development  for   single-family

dwellings  and commercial development.  To apply the fair  market

value  requirement  to  the  whole 730  acres  addressed  by  the

initiative,  we  would  have  to overstep  our  narrow  power  of

severance  by  substantially rewriting the measure.   Reduced  to

prescribing  the procedure for selling or leasing just  sixty-one

acres,  the  initiative bears little resemblance to the  original

proposal and should not appear on the ballot.42  Without  any  of

the  substantive sections of the initiative, the policy statement

and severability clause have no legal effect and cannot go before

the electorate.

IV.  CONCLUSION

          The  Anchorage  municipal clerk was acting  within  her

authority when she rejected the Girdwood initiative on the ground

that  it  proposed  to make an appropriation.   Furthermore,  her

determination was correct  by designating a particular  tract  of

land  as  a  park,  the initiative would commit  specific  public

assets  to a specific purpose, making an appropriation, an action

that  may  not be taken by initiative.  Without the impermissible

park  designation, the rest of the initiative may not go  to  the

voters.    The  judgment  of  the  superior  court  is  therefore

AFFIRMED.

_______________________________
     1     Turnagain  Arm Conservation League v. Municipality  of
Anchorage,  No.  3AN-99-04120 (Alaska Super., February  6,  2001)
(order granting summary judgment).

     2     Alakayak  v. British Columbia Packers, Ltd.,  48  P.3d
432, 447 (Alaska 2002).

     3    Pullen v. Ulmer, 923 P.2d 54, 58 (Alaska 1996).

     4     AS  29.26.100 (The powers of initiative and referendum
are  reserved to the residents of municipalities . .  .  .);  see
also   AS   29.10.030(a)  (A  home  rule  charter  shall  provide
procedures for initiative and referendum.).

     5      See  AS  29.26.100  (The  powers  of  initiative  and
referendum . . . do not extend to matters restricted by art.  XI,
Sec.  7  of the state constitution.); AS 29.10.030(c) (A  charter
may  not  permit the initiative and referendum to be used  for  a
purpose   prohibited   by  art.  XI,  Sec.   7   of   the   state
constitution.).

     6    Alaska Const. art. XI,  7.

     7     Brooks  v.  Wright, 971 P.2d 1025, 1027 (Alaska  1999)
(citation omitted).

     8     Kodiak  Island Borough v. Mahoney, 71  P.3d  896,  900
(Alaska 2003); see also Boucher v. Engstrom, 528 P.2d 456, 460-61
(Alaska  1974)  (holding  that  lieutenant  governors  review  of
initiatives form properly includes determination that it conforms
with  constitutional subject-matter restrictions),  overruled  in
part  on  other grounds by McAlpine v. University of Alaska,  762
P.2d 81 (Alaska 1988).

     9    Brooks, 971 P.2d at 1027.

     10    See Boucher, 528 P.2d at 460.

     11    Brooks, 971 P.2d at 1027 (citation omitted).

     12    Mahoney, 71 P.3d at 900.

     13     Id.  at 900 n.22 (citing Brown v. Board of  Educ.  Of
Topeka, Kan., 349 U.S. 294 (1955)).

     14    Brooks, 971 P.2d at 1027.

     15    71 P.3d at 897.

     16    Id. at 900-01.

     17    971 P.2d at 1026-27.

     18    Id. at 1027-28.

     19    See id. ([O]ur [pre-election] review of the initiative
.   .   .   is   limited  to  whether  the  subject   matter   is
constitutionally   permissible.)   (emphasis    added);    Alaska
Conservative Political Action Comm. v. Municipality of Anchorage,
745  P.2d  936, 937 (Alaska 1987); Boucher, 528 P.2d  at  460-61;
Walters  v.  Cease,  394 P.2d 670 (Alaska 1964),  disapproved  on
other  grounds by Boucher; see also Starr v. Hagglund,  374  P.2d
316 (Alaska 1962).

     20     City  of Fairbanks v. Fairbanks Convention & Visitors
Bureau,   818   P.2d  1153,  1157  (Alaska   1991).    In   other
constitutional  contexts,  appropriation  may  have  a  different
definition.  For example, construing the initiative provisions of
the  constitution and construing the provisions  delineating  the
governors   veto  power  require  different  interpretations   of
appropriations  because  they serve  vastly  different  purposes.
Alaska  Legislative Council ex rel. Alaska State  Legislature  v.
Knowles,  __ P. 3d ___; 2004 WL 42610, at *2 (Alaska, January  9,
2004);  see also City of Fairbanks, 818 P.2d at 1156-57  (reading
appropriation  more  narrowly  when considering  whether  measure
repeals appropriation than when considering whether measure makes
appropriation).

     21    See Thomas v. Bailey, 595 P.2d 1 (Alaska 1979) (land);
Pullen  v.  Ulmer, 923 P.2d 54, 63 (Alaska 1996)  (wild  salmon).
These   holdings   dispense   with   AACs   argument   that   the
constitutional conventions initial use of the term  appropriation
of  funds  in a draft version of the provision  later changed  to
just appropriation  carries the meaning AAC ascribes to it.   See
also  Thomas,  595 P.2d at 6-7 (Even if the initiative  provision
referred to appropriations of public funds, the issue would still
be  whether public funds refers generically to the states  assets
or only those assets in the form of money.).

     22     For example, reviewing a municipal initiative in City
of  Fairbanks,  we relied on the definition of appropriation  set
out in Thomas, a state-level initiative case.  City of Fairbanks,
818 P.2d at 1156, citing Thomas, 595 P.2d at 7.

     23    Pullen, 923 P.2d at 63.

     24    Id.; see also City of Fairbanks v. Fairbanks Convention
and  Visitors Bureau, 818 P.2d 1153, 1157 (Alaska 1991)  (holding
that  initiative  is  not  an appropriation  where  there  is  no
indication  that  .  .  . the voters would be  voting  themselves
money).

     25    595 P.2d 1 (Alaska 1979).

     26    745 P.2d 936 (Alaska 1987).

     27    923 P.2d 54 (Alaska 1996).

     28    Id. at 63.

     29    Id. at 62.

     30     McAlpine  v. University of Alaska, 762  P.2d  81,  89
(Alaska 1988).

     31    Id.

     32    Id. at 87-88.

     33    Id.

     34    Id. at 91.

     35    Id.

     36    Id. at 89.

     37    Pullen, 923 P.2d at 63.

     38     See  Anchorage  Municipal Charter,  18.01  (requiring
voter approval for charter amendments).

     39     City of Fairbanks, 818 P.2d at 1156 (emphasis added);
see  also  Pullen,  923  P.2d at 62 (The reason  for  prohibiting
appropriations  by initiative is to ensure that the  legislature,
and only the legislature, retains control over the allocation  of
state  assets among competing needs.); McAlpine, 762 P.2d at  88-
89.

     40    Id. at 93.

     41    Id. at 94-95.

     42    See McAlpine, 762 P.2d at 95 n.26 (Where nearly all of
an  initiative is invalid, other courts have refused to  put  the
remainder  on  the  ballot  regardless  of  the  intent  of   the
sponsors.); Fosella v. Dinkins, 485 N.E.2d 1017, 1019 (N.Y. 1985)
(refusing  to  allow initiative to go forward in a  redacted  and
possibly confusing form).