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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).
