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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Anchorage Citizens for Taxi Reform v. Municipality of Anchorage (12/22/2006) sp-6086

Anchorage Citizens for Taxi Reform v. Municipality of Anchorage (12/22/2006) sp-6086, 151 P3d 418

     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,


TAXI REFORM, ) Supreme Court No. S- 11453
Appellant, ) Superior Court No. 3AN-02-4930 CI
v. ) O P I N I O N
MUNICIPALITY OF ANCHORAGE, ) No. 6086 - December 22, 2006
and GREG MOYER, Clerk, and )
Appellees. )

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sen K. Tan, Judge.

          Appearances:   Karen  Bretz,  Anchorage,  and
          Kenneth B. Jacobus, Kenneth P. Jacobus, P.C.,
          Anchorage,  for Anchorage Citizens  for  Taxi
          Reform.   Mary B. Pinkel, Assistant Municipal
          Attorney,  and Frederick H. Boness, Municipal
          Attorney,  Anchorage,  for  Municipality   of
          Anchorage.    James   T.  Brennan,   Hedland,
          Brennan  & Heideman, Anchorage, for Anchorage
          Taxicab Permit Owners Association.

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

          EASTAUGH, Justice.
          CARPENETI, Justice, dissenting.

          Article  XI,  section  7  of  the  Alaska  Constitution
prohibits   using   an  initiative  to  make  an   appropriation.
Anchorage Citizens for Taxi Reform (Anchorage Citizens) submitted
to  the  Municipality of Anchorage a petition for  an  initiative
requiring the city to issue a taxi permit to any qualified person
paying  an administrative fee.  The municipal clerk rejected  the
petition,   reasoning   that  the  initiative   would   make   an
appropriation,  in  violation of article  XI,  section  7.   When
Anchorage Citizens filed suit, the superior court granted summary
judgment  to  the  municipality.  We  reverse.   Because  taxicab
permits  are  not  public  assets,  we  hold  that  the  proposed
initiative  would not make an appropriation.  We also  hold  that
the initiative is not stale.
          In  February 2002 Anchorage Citizens filed  a  petition
for  ballot  initiative entitled Initiative Petition  2002  Taxi,
Limousine  and  Vehicle  for  Hire  Reformation  Act   with   the
Municipality of Anchorages municipal clerk.  The initiative would
require  the  municipality  to  issue  taxicab  permits  to   any
qualified  applicant  paying an administrative  fee.1   Anchorage
Citizens  intended the initiative to be placed on the  ballot  in
the  next municipal election, in April 2002.  The municipal clerk
refused  to  certify  the  petition  based  on  advice  from  the
municipal  attorney.   The  municipal attorney  warned  that  the
proposed  initiative would require the municipality to  pay  just
compensation to avoid constitutional takings claims from  current
taxi  permit holders and would thereby impermissibly  mandate  an
appropriation of municipal funds.
          Anchorage Citizens filed a complaint in superior  court
seeking a declaration that the municipality and clerk Greg  Moyer
erred  by refusing to certify the initiative and an order placing
the  initiative  on  the  next municipal ballot.   The  Anchorage
Taxicab  Permit Owners Association (Owners Association)  filed  a
motion  to intervene, and the superior court granted the  motion.
Anchorage  Citizens  and the Owners Association  both  moved  for
summary   judgment,  and  the  municipality  joined  the   Owners
Associations motion.
          In  March  2003  the  superior  court  granted  summary
judgment  to  the  municipality and the Owners Association.   The
court   concluded  that  the  initiative  would  result   in   an
appropriation  of  public  assets, for two  reasons:  first,  the
initiative  would  cause an unconstitutional  taking  that  would
require  an appropriation by the Anchorage Assembly to  pay  just
compensation;  and  second,  the  initiative  would   give   away
municipally controlled resources, the permits themselves.   After
entry  of  final  judgment,  the court  clerk  ordered  Anchorage
Citizens to pay the Owners Associations litigation costs  in  the
amount  of  $3,292.39.   The Owners Association  then  moved  for
attorneys  fees.   The superior court denied the motion,  finding
that  Anchorage  Citizens  was a public  interest  litigant,  but
affirmed the award of costs against Anchorage Citizens.
          Anchorage Citizens appeals the courts grant of  summary
judgment  to  the  municipality and the cost order.   The  Owners
Association  and  the  municipality  argue  that  even   if   the
          initiative is constitutionally valid, the initiative is stale.
The  Owners Association also argues that relief should be  denied
under the doctrine of laches.
          Anchorage  Citizens  contends that the  superior  court
erred   in   concluding  that  the  initiative  would   make   an
appropriation.   Anchorage Citizens argues that  taxicab  permits
are   not  public  assets  that  would  be  appropriated  by  the
initiative.  Anchorage Citizens also argues that this court  does
not need to decide whether the permits are property the taking of
which   would  require  just  compensation.   As  to  the  latter
argument,  any  constitutional takings discussion here  would  be
premature and could unduly affect the initiative process.2  Thus,
the  main  question  for us on appeal is whether  the  initiative
proposal  would make an appropriation, a question that  turns  on
whether the taxicab permits are public assets.
     A.   Standard of Review
          We  review a superior courts grant of summary  judgment
de novo and affirm if the moving party is entitled to judgment as
a  matter  of law.3  We draw all factual inferences in favor  of,
and  view  the  facts in the light most favorable  to,  the  non-
prevailing  party.4   We review questions of law,  including  the
constitutionality of a ballot initiative, using  our  independent
judgment,  adopting  the rule of law that is most  persuasive  in
light  of  precedent, reason, and policy.5  In matters  involving
initiatives,  we  construe voter initiatives  broadly  so  as  to
preserve  them whenever possible.  However, initiatives  touching
upon the allocation of public revenues and assets require careful
consideration   because  the  constitutional  right   of   direct
legislation is limited by the Alaska Constitution.6
          Whether  the  superior court made an error in  awarding
costs against a public interest litigant is a legal question.  We
review legal questions using our independent judgment.7
     B.   The Initiative Would Not Appropriate Municipal Assets.
          Article XI, section 1 of the Alaska Constitution  gives
Alaskans the right of direct legislation.8  Section 1 states: The
people  may propose and enact laws by the initiative, and approve
or  reject  acts  of  the legislature by  the  referendum.9   The
initiative  power is limited, however, by article XI, section  7,
which provides that [t]he initiative shall not be used to .  .  .
make   or  repeal  appropriations.10   That  provision  prohibits
initiatives that would give away public assets.11  We use a  two-
part  inquiry to determine whether a particular initiative  makes
an  appropriation.12  First, we determine whether the  initiative
deals  with  a  public asset.13  In a series of  cases,  we  have
determined  that  public revenue,14 land,15  a  municipally-owned
utility,16 and wild salmon17 are all public assets that cannot be
appropriated  by  initiative.  Second, we determine  whether  the
initiative  would appropriate that asset.18  In deciding  whether
the  initiative would have that effect, we have looked to the two
core  objectives of the limitation on the use of  the  initiative
power to make appropriations.19  One objective is preventing give-
away  programs  that appeal to the self-interest  of  voters  and
endanger the state treasury.20  The constitutional delegates were
          concerned that [i]nitiatives for the purpose of requiring
appropriations   [would]   pose  a  special   danger   of   rash,
discriminatory, and irresponsible acts. 21  The other objective is
preserving   legislative  discretion  by  ensur[ing]   that   the
legislature, and only the legislature, retains control  over  the
allocation of state assets among competing needs.22
          Three  classes  of taxicab permits currently  exist  in
Anchorage:  transferable general taxicab permits, limited taxicab
permits,  and  non-transferable taxicab permits. 23  Transferable
general  permits may be transferred, leased, sold, or  encumbered
with  security  interests  with the  approval  of  the  Anchorage
Transportation Commission (commission).24  There are currently 158
transferable  general permits. These permits have  recently  been
valued   for  as  much  as  $125,000  each.   Limited  and   non-
transferable  permits  may  not be sold.25   The  municipal  code
provides that the commission must issue additional limited or non-
transferable permits if public convenience and necessity would be
best  served  by  the issuance of one or more additional  .  .  .
permits.26  The municipality claims, and Anchorage Citizens  does
not  contest, that since 1994, the municipality has  issued  four
non-transferable  permits  and  no  limited  permits.   The  non-
transferable permits were issued at public auction; each one sold
for an amount between approximately $30,000 to $45,000.
          The   municipality  argues  that  taxicab  permits  are
municipally  controlled  resources and thus  public  assets.   It
analogizes  this initiative to the one we deemed unconstitutional
in Pullen v. Ulmer,27 and suggests that the revenue-raising aspect
of  the  taxicab  permitting system makes the permits  themselves
municipal assets.  The municipality does not, however, argue that
an  initiative  that affects the municipalitys  power  to  permit
would  be an appropriation.28  We therefore only consider whether
the  permits themselves  at the moment they are transferred  from
the municipality to the permit holders  are public assets.
          In  Pullen,  we  considered a proposed initiative  that
would  have given subsistence, personal use, and sport  fisheries
priority over commercial fisheries to harvest salmon.29  We  held
that   the   initiative  would  make  an  appropriation   because
(a)  salmon are public assets; and (b) the initiative reduced the
governments  discretion over the fisheries and  appealed  to  the
self-interest  of  sport,  personal, and  subsistence  fishers.30
Although we noted that the state does not own salmon in the  same
way  it  owns  land or other assets, we advanced two reasons  why
salmon are nonetheless public assets.31  First, the state benefits
financially  from the collection of taxes imposed  on  businesses
involved in the fishing industry and from license fees imposed on
sport,  personal use, and commercial fishers.32  Alaskas  economy
and  revenue base depend on the health of the salmon fisheries.33
And  second,  we  noted  that  the public  trust  responsibility,
imposed by article VIII of the Alaska Constitution, to take  care
of  fish,  wildlife, and water resources of the state, gives  the
state  property-like interests in salmon.34   We  concluded  that
naturally   occurring  salmon  are,  like  other  state   natural
resources,  state  assets belonging to the state  which  controls
them for the benefit of all its people.35
          Taxicab  permits  are  not  public  assets.   Unlike  a
license  to  fish,  or a permit to extract mineral  resources,  a
taxicab  permit does not authorize the holder to  take  a  public
resource.  The underlying things of value  the fares to  be  paid
by  taxicab riders  do not belong to the municipality.  Moreover,
it appears that taxicab permits are not issued to raise money for
the  municipality, but to serve a regulatory function.  The  code
states  that  public  convenience and necessity  shall  determine
whether the municipality should issue additional permits.36   The
fact  that  the  municipality has issued only four permits  since
1994  confirms that the permits are issued primarily as a  public
welfare  and  safety  measure, not for revenue-raising  purposes.
Even though the purchasers of the four permits at auction paid as
much  as $45,000 for a permit, the total amount raised by selling
the  four  permits  is not significant.  We assume  that  if  the
municipality intended revenue to be a major purpose  for  issuing
taxicab permits, it would have sold more than four permits  since
1994.   Because  issuing the permits served a  regulatory  rather
than  a  revenue-raising function, and because  the  municipality
does  not  own  the  underlying resource  the  permits  authorize
holders to take, we conclude that taxicab permits are not  public
     C.   The Initiative Is Not Stale.
          The  municipality and the Owners Association argue that
because  so much time has passed since the petition was initially
signed,  the  signers  of the petition are  no  longer  qualified
voters as required by the charter.  The charter requires that  an
initiative  petition  be signed by a number of  qualified  voters
equal  to at least ten percent of the voters who cast ballots  at
the  last  regular  mayoral election.38  An  initiative  must  be
submitted  to  the  voters at the next regular election  held  at
least  45  days after certification of the petition.39  The  code
defines  qualified  voter as one who at the  moment  he  signs  a
petition  for  initiative or referendum, is legally  entitled  to
vote and who, by virtue of a current, valid residence address, is
registered  to vote in state and Anchorage municipal elections.40
The  municipality and the Owners Association assert that many  of
the   signers  have  since  moved  out  of  state  or  had  their
registration  lapse  such that there is no  longer  a  congruence
between the petition pool and the electorate.41
          We  agree with the municipality that the municipal code
expresses  the intent that the voters who have signed a  petition
are, to the extent possible, the same voters who will vote on it.
(Emphasis  added.)  But this proposition does not  require  exact
congruence  between the signers and the registered  voters.   And
the  Owners  Association has failed to show that any  substantial
discrepancy  actually exists.  Only four years have passed  since
the  clerk  refused  to  certify the initiative.   And  Anchorage
Citizens  has  been seeking relief during this  time  period,  as
expressly  allowed  in the municipal code, through  the  judicial
          Moreover,  we have previously explained that  [b]ecause
the  Alaska  Constitution preserves the peoples power to  propose
and  enact  laws  through initiatives, . .  .  courts  must  give
          statutory and constitutional regulations of initiatives liberal,
broad   readings.43   Municipal  law  sets   out   two   relevant
requirements:  (1) an initiative in Anchorage must be  signed  by
persons who are eligible to vote and currently registered at  the
moment [they] sign[] the petition;44 and (2) the petition must be
submitted  to  the  voters at the next regular election  held  at
least  45  days after certification.45  The first requirement  is
squarely  met  because it seems undisputed that  the  initiatives
signers  were eligible and registered at the moment they  signed.
And  the  deadline  for meeting the second  requirement  has  not
arrived,  since  the  municipality  has  not  yet  certified  the
initiative.  When the municipality does so on remand and  submits
the  initiative to the voters for the next regular election,  the
municipalitys qualified voter requirements will be strictly met.
          The  municipality and the Owners Association also  urge
us to adopt the position taken by the California Supreme Court in
Gage v. Jordan, which held that an initiative measure that failed
because it lacked the requisite number of signatures could not be
automatically  revitalized  two  years  later  by  a   subsequent
decrease in the number of signatures required for certification.46
But  Gage is distinguishable because the initiative sponsors here
did  not let the petition lay dormant as the petitioners  did  in
Gage.47   Instead, Anchorage Citizens timely sought certification
of  its  petition  for initiative and upon the clerks  rejection,
promptly  filed  a  complaint in superior  court.   We  therefore
conclude that the initiative is not stale.
          We also reject the Owners Associations laches argument.
Laches  operates  to  bar a claim when a court  finds  one  party
caused  unreasonable  delay in seeking relief  that  resulted  in
prejudice  to the other party.48  A review of the record  reveals
that  all  three of the parties filed, and were granted, numerous
requests  for  extensions of time with the superior  court.   And
contrary   to  the  Owners  Associations  suggestion,   Anchorage
Citizens, as the losing party below, had no obligation to seek  a
final,  appealable judgment.49  Anchorage Citizens did not  cause
any  unreasonable delay that would have warranted a dismissal  of
its claim under laches.50
     D.   Costs May Not Be Awarded Against Anchorage Citizens.
          The  superior court found that Anchorage Citizens is  a
public  interest litigant but affirmed the court clerks award  of
litigation  costs  to  the Owners Association  against  Anchorage
Citizens.  Anchorage Citizens argues that it was error  to  award
costs against it.  The municipality and the Owners Association do
not  contest  the  superior courts decision concerning  Anchorage
Citizenss  public interest litigant status, nor do  they  address
whether  the  superior  court permissibly awarded  costs  to  the
Owners  Association after it found that Anchorage Citizens  is  a
public interest litigant.  Because we reverse the judgment below,
the  Owners  Association is no longer the prevailing  party.   We
therefore  vacate the cost award.  We note, however, that  public
interest  litigants do not have to pay the opposing partys  costs
or  attorneys  fees.51  Because it is undisputed  that  Anchorage
Citizens  is a public interest litigant, litigation costs  should
not  have  been  awarded against it even  when  it  was  not  the
          prevailing party in the superior court.
          Because  it  is  now  the prevailing  party,  Anchorage
Citizens may seek  prevailing party fees and costs on remand.

          Because  the  taxicab initiative does not  violate  the
article  XI, section 7 limitation on appropriation by initiative,
we REVERSE the judgment below.  We also VACATE the award of costs
against  Anchorage Citizens.  We REMAND for entry of  an  amended
judgment ordering the municipality to certify the initiative  and
present it to the voters at the next municipal election.
CARPENETI, J., dissenting
          I  dissent  from todays opinion because  I  believe  it
mischaracterizes the nature of the asset at issue  in  this  case
and   therefore   misapplies  our  case  law   on   appropriative
initiatives,  especially  our  decision  in  Pullen  v.   Ulmer.1
Taxicab  permits allow commercial operators to use a  costly  and
important  public resource  the public roads  for  private  gain.
As such, they give direct access to a valuable and limited public
resource  to those who receive them.  This situation  is  legally
indistinguishable  from  the permits at  issue  in  Pullen.   Our
decision in that case should control the outcome here.
          In  Pullen we invalidated an initiative that would have
directed the state to favor non-commercial over commercial  users
of  salmon in issuing fishing permits.  We acknowledged that  the
state  does  not own wildlife in precisely the same way  that  it
owns ordinary property but we characterized the true question  as
being whether the states interest in wildlife is such that it can
appropriately  be  characterized as  state  property  subject  to
appropriation.2 We found that it was, noting that  a  precipitous
decline  in  wildlife  would affect the state  in  a  significant
manner.3  Just as the people of Alaska have an interest in fairly
allocating the limited wildlife resources of our state, so do the
people of Anchorage have an interest in fairly allocating the use
of limited and publicly funded roadways for commercial purposes.
          Todays  opinion distinguishes Pullen on the basis  that
[u]nlike  a  license  to  fish, or a permit  to  extract  mineral
resources, a taxicab permit does not authorize the holder to take
a  public resource.  The underlying things of value  the fares to
be  paid  by  taxicab riders  do not belong to the  municipality.
But the thing of value here is not the right to collect fares  it
is  the  right  to use the public roads, a costly  and  important
public  resource,  for commercial purposes,  here  including  the
solicitation  of  business.4  A taxicab permit  holder  has  been
given  a specific franchise which is no less an asset than  is  a
license to catch fish.5
          Todays  opinion also argues that the initiative  cannot
constitute  an  appropriation because  taxicab  permits  are  not
issued  to  raise  money for the municipality,  but  to  serve  a
regulatory  function.  This conclusion creates a false dichotomy.
Both   purposes  are  present,  as  evidenced  by  the  Anchorage
Municipal Codes treatment of taxicab permits.  The code  requires
the municipality to consider public convenience and necessity  in
the  granting  of permits,6 and it requires that new  permits  be
sold  at  public  auction7  to  the  highest  qualified  bidder.8
Consideration of the public convenience and necessity serves  the
regulatory  function, while the requirements that the permits  be
sold  at  public auction to the highest bidder serve the revenue-
raising  function.  Moreover, $45,000 per permit is a significant
amount  of  money  and the total amount raised through  sales  of
permits    approximately   $160,0009     cannot   accurately   be
characterized,  as  todays opinion does, as not  significant.  We
have previously characterized lesser amounts as significant10 and
substantial.11  That the municipality has issued only  a  limited
number  since 1994 does not suggest, as todays opinion assume[s],
          that revenue-raising is not a purpose of the code; rather, it
suggests  that the municipality has carefully balanced  two  non-
exclusive purposes, regulation and revenue-raising.
          Finally, todays opinion authorizes a give-away  program
no less than the initiatives found unconstitutional in Pullen and
Alaska  Action  Center.12  Rather than  limiting  the  number  of
licenses as required by the public convenience and necessity, the
initiative  requires that a license be issued  to  any  qualified
applicant.13  And, rather than requiring that the license  go  to
the  highest qualified bidder14 at public auction,15 the proposed
initiative  would  require that the license  fee  be  limited  to
administrative  costs,16 approximately  $825,   rather  than  the
market value of approximately $45,000.
          As   we   held  in  Staudenmaier  v.  Municipality   of
Anchorage,17  a forced sale of a municipal asset  even at  market
value  is an appropriation of that asset.  Here, the forced  sale
for $825  of an asset for which the municipality could garner  as
much  as $45,000 at auction is equivalent to a give-away  of  the
asset.   Because the initiative would designate how the Anchorage
Assembly is to make use of municipal assets,18 it would effect an
appropriation.  For these reasons I would affirm the judgment  of
the superior court.
     1    The initiative states, in relevant part:

          The Proposition: Shall the charter be amended
          to  add  the  following sections  to  Article
            Section 17.14 Regulated vehicle permits
            The  Municipality  shall  issue  a  non-
            transferable general taxicab  permit  to
            any  qualified applicant.  The fees paid
            for   issuance  or  annual  renewal   of
            taxicab, limousine, or vehicle for  hire
            permits  shall be uniform.  Issuance  or
            annual renewal fees required for any  of
            the  aforementioned  permits  shall   be
            equivalent   and  set  to   cover   real
            administrative  costs  of  issuing   and
            filing them only and not set so as to be
            a  substantial  barrier to  entry.   The
            exception to this act shall be  that  no
            fees  shall be levied on taxicab permits
            for  vehicles that are fully  wheelchair
            Section  17.15  Regulated vehicle  rates
            and terms of service
            The  Municipality  is hereby  prohibited
            from establishing rates for limousine or
            executive  sedan service.   Any  vehicle
            dispatch   service   licensed   by   the
            Municipality   shall   be   allowed   to
            dispatch any vehicle.
     2    We therefore do not decide here whether taxicab permits
are   private   property  the  taking  of  which  requires   just
compensation,  nor  do  we decide whether  the  initiative  would
result in any such taking.  Our limited review is consistent with
the principle that an initiative may be reviewed before going  to
the   voters  only  to  ensure  compliance  with  the  particular
constitutional  and statutory provisions regulating  initiatives.
State  v.  Trust  the  People, 113 P.3d 613,  626  (Alaska  2005)
(quoting  Alaska Action Ctr., Inc. v. Municipality of  Anchorage,
84  P.3d  989, 992 (Alaska 2004)).  The municipal clerk  may  not
reject   the  measure  on  other  constitutional  grounds  unless
controlling  authority  leaves no room  for  argument  about  its
unconstitutionality.  Alaska Action Ctr., 84 P.3d at 992 (quoting
Brooks  v. Wright, 971 P.2d 1025, 1027 (Alaska 1999)).   No  such
ground is present here.  See id.

     3     McCormick  v.  Reliance Ins. Co., 46 P.3d  1009,  1011
(Alaska 2002).

     4    Rockstad v. Erikson, 113 P.3d 1215, 1219 (Alaska 2005).

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

     6     Id. (quoting City of Fairbanks v. Fairbanks Convention
& Visitors Bureau, 818 P.2d 1153, 1155 (Alaska 1991)).

     7     See  Alaska Civil Liberties Union v. State,  122  P.3d
781, 785 (Alaska 2005).

     8    Thomas v. Bailey, 595 P.2d 1, 3 (Alaska 1979).

     9    Alaska Const. art. XI,  1.

     10     See  also  AS 15.45.010; Anchorage Municipal  Charter

     11    Pullen, 923 P.2d at 58.

     12     Alaska Action Ctr., 84 P.3d at 993 (making clear that
prohibition on appropriation by initiative encompasses  land  and
then considering whether initiative would appropriate that land);
Pullen, 923 P.2d at 58, 61 (considering whether salmon are public
assets  and then considering whether initiative would appropriate
that public asset); Alaska Conservative Political Action Comm. v.
Municipality  of  Anchorage,  745 P.2d  936,  938  (Alaska  1987)
(noting  that public utility is significant municipal  asset  and
that  initiative  that  would require  municipality  to  transfer
utility for one dollar would be  appropriation of that asset).

     13    Pullen, 923 P.2d at 58-61.

     14     See Thomas v. Rosen, 569 P.2d 793, 796 (Alaska  1977)
(endorsing  definition  of appropriation  that  involved  setting
aside  of public revenue).  Although Rosen presented the question
whether a voter-approved bonding proposition was an appropriation
bill  within the meaning of article II, section 15 of the  Alaska
Constitution,  we  have consistently cited to Rosen  when  noting
that   public   revenue  or  money  cannot  be  appropriated   by
initiative.  See Pullen, 923 P.2d at 58; Bailey, 595  P.2d  at  6

     15     See  Bailey, 595 P.2d at 4-9 (state land may  not  be
appropriated by initiative); see also Alaska Action Ctr., 84 P.3d
at 993-95 (same); McAlpine v. Univ. of Alaska, 762 P.2d 81, 90-91
(Alaska  1988)  (holding one part of initiative that  would  have
transferred  land  from  University of Alaska  to  new  community
college an invalid appropriation).

     16     See  Alaska Conservative Political Action Comm.,  745
P.2d at 938 (A utility with $32.7 million equity is a significant
municipal asset.).

     17    See Pullen, 923 P.2d at 61.

     18    Id.

     19    Id. at 63; see also City of Fairbanks, 818 P.2d at 1156
(noting  that  our  cases  focus on  two  parallel  purposes  for
preventing  the  making of appropriations through the  initiative

     20     See Pullen, 923 P.2d at 62-63; see also Alaska Action
Ctr., 84 P.3d at 993-94; City of Fairbanks, 818 P.2d at 1156.

     21     Bailey,  595  P.2d at 7 (quoting V.  Fisher,  Alaskas
Constitutional Convention 80-81 (1975)).

     22     McAlpine, 762 P.2d at 88 (emphasis in original);  see
also  Alaska Action Ctr., 84 P.3d at 994; City of Fairbanks,  818
P.2d at 1156.

     23    Anchorage Municipal Code (AMC) 11.20.016.  Transferable
general  permits were issued before February 22, 1994 and limited
and  non-transferable permits have been issued since February 22,
1994.   The municipality can no longer issue transferable general
permits.  See AMC 11.20.040(B).

     24    AMC 11.20.040.

     25     AMC  11.20.035(C); AMC 11.20.037(C).  Limited permits
restrict  usage to a specific time or a specific geographic  area
determined by the commission.  AMC 11.20.035(A).  Limited and non-
transferable  permits  are restricted to  drivers  who  are  both
owners  and  operators  of the taxicab  under  the  permit.   AMC
11.20.035(D); AMC 11.20.037(D).

     26     AMC  11.20.030.   In making that  determination,  the
commission  may consider, among other things, the  public  demand
for   additional  taxi  service,  the  unfulfilled  requests  for
service,  the  reasonableness of waiting time  for  service,  the
economic  impact  of additional permits on the viability  of  the
existing  taxi industry, and the type of permit which would  meet
the demand for additional service.  AMC 11.20.030(B).

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

     28     At oral argument before us, Anchorage Citizens argued
that  the  right to issue taxicab permits is an exercise  of  the
municipalitys  police  power,  not  a  public  asset  subject  to

     29    Pullen, 923 P.2d at 55.

     30    Id. at 61, 63.

     31    Id. at 59-61.

     32    Id. at 59.

     33    Id.

     34    Id. at 60-61.

     35    Id. at 61.

     36    AMC 11.20.030.

     37     Because  we hold that taxicab permits are not  public
assets,  we do not need to consider whether the initiative  would
appropriate the permits.

     38    Anchorage Municipal Charter  3.02(a).

     39    Anchorage Municipal Charter  3.02(b).

     40    AMC 2.50.010.

     41     The  Owners Association also suggests  that  the  ten
percent  requirement might not be met any longer  if  there  were
more voters in the April 2003 election than in the 2000 election.

     42     The  code  provides that the clerks decision  may  be
appealed to the superior court. AMC 2.50.030(C).

     43     Kodiak  Island Borough v. Mahoney, 71 P.3d  896,  899
(Alaska  2003); see also Pullen, 923 P.2d at 58; Yute Air Alaska,
Inc. v. McAlpine, 698 P.2d 1173, 1181 (Alaska 1985) ([A]ll doubts
as  to  all technical deficiencies or failure to comply with  the
exact   letter  of  procedure  will  be  resolved  in  favor   of
[preserving  the initiative].) (quoting Boucher v. Engstrom,  528
P.2d 456, 462 (Alaska 1974)).

     44     Municipal Charter  3.02(a) and AMC 2.50.010 (emphasis

     45    Municipal Charter  3.02(b).

     46    Gage v. Jordan, 147 P.2d 387, 394 (Cal. 1944).

     47    See id. at 389.

     48     State, Dept of Commerce & Econ. Dev., Div. of Ins. v.
Schnell, 8 P.3d 351, 358-59 (Alaska 2000).

     49     See Alaska R. Civ. P. 78(a) (Unless otherwise ordered
by  the  court, counsel for the successful party to an action  or
proceeding shall prepare in writing and file and serve on each of
the  other parties proposed findings of fact, conclusions of law,
judgments  and orders.) (emphasis added).  The Owners Association
suggests that Anchorage Citizens delayed the proceedings  by  not
seeking  a  final appealable judgment in time for the April  2003

     50     The  Owners Associations argument regarding prejudice
also  fails.   It  states that the delay since  the  municipality
rejected  the  initiative  would  prejudice  Anchorage  municipal
voters.   But  this  assertion  is conclusory;  and  it  is  also
factually   unsupported   and  not  self-evident.    The   Owners
Association  also  reiterates  the  staleness  argument  that  we
rejected above.

     51    Matanuska-Susitna Borough Sch. Dist. v. State, 931 P.2d
391, 404 (Alaska 1997); Griswold v. City of Homer, 925 P.2d 1015,
1017, 1030-31 (Alaska 1996).

1    923 P.2d 54 (Alaska 1996).

     2    Id. at 59.

     3    Id.

     4     Cf. In re Hathorns Transp. Co., 158 A.2d 464, 467 (Vt.
1960)  (motor  carrier  certificate is  a  franchise,  and  is  a
property right).

     5    In Pullen we noted that the state does not own fish but
has  property-like  interests in them.  923 P.3d  at  60-61.  The
municipality  does own the public roads, and thus  the  case  for
allowing appropriation of part of this property via initiative is
even weaker than it was in Pullen.

     6    AMC 11.20.030(C).

     7    AMC 11.20.030(D).

     8    AMC 11.20.030(D)(1).

     9    This figure represents only the value of assets that in
the  future may be lost to the public under the initiative.  This
dissent does not touch on the far greater loss of value that  may
befall  the  private  sector; that is,  current  permit  holders.
According to an affidavit filed by James B. Taylor, an officer of
the  Anchorage Taxicab Permit Owners Association, there  are  160
transferable general taxicab permits in Anchorage,  each  with  a
market value of $125,000 per permit.

     10    Murphy v. City of Wrangell, 763 P.2d 229, 233  (Alaska
1988)  (possible  judgment against city for  $25,000  or  greater
represented a significant amount of money).

     11    See Fairbanks Fire Fighters Assn v. City of Fairbanks,
934  P.2d  759,  763 n.11 (Alaska 1997) ($4000  per  week  was  a
substantial amount of money).

     12    Alaska Action Ctr., Inc. v. Municipality of Anchorage,
84 P.3d 989, 993-94 (Alaska 2004).

     13   Initiative,  17.14.

     14   AMC 11.20.030(D)(1).

     15   AMC 11.20.030(D).

     16   Initiative,  17.14.

     17    139  P.3d 1259, 1262 (Alaska  2006).  See also  Alaska
Conservative Political Action Comm. v. Municipality of Anchorage,
745  P.2d  936 (Alaska 1987) (forced sale of municipal  asset  at
below-market value constitutes appropriation).

     18   Staudenmaier, 139 P.3d at 1263 n.23.

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