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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Washington's Army v. City of Seward (04/25/2008) sp-6253

Washington's Army v. City of Seward (04/25/2008) sp-6253, 181 P3d 1102

     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,


HAFEMEISTER, BILL HEARN, ) Supreme Court No. S- 12350
SHARYL SEESE, ) Superior Court No. 3SW-06-20 CI
Appellants, ) O P I N I O N
v. ) No. 6253 April 25, 2008
Appellees. )

          Appeal  from the Superior Court of the  State
          of  Alaska, Third Judicial District,  Seward,
          Harold M. Brown, Judge.

          Appearances:   Individual  Appellants   Debra
          Hafemeister,  Bill Hearn, Marilee  Koszewski,
          and Sharyl Seese, pro se, Seward.  Cheryl  A.
          Brooking,    Wohlforth,   Johnson,    Brecht,
          Cartledge   &   Brooking,   Anchorage,    for

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

          EASTAUGH, Justice.

          Citizens   seeking   a  public  vote   on   a   locally
controversial plan to vacate part of Washington Street in  Seward
filed  with  the  City  of  Seward clerk  an  application  for  a
referendum   petition.   The  clerk  denied  their   application.
Because  there was no city council action to refer to the voters,
the  clerk did not err in denying the petition on the ground  the
vacation  could  not be challenged by referendum.   We  therefore
affirm  the  superior court judgment that dismissed the  citizens
complaint challenging the clerks denial of their application.
          The  City of Seward, the National Park Service, and the
U.S.  Forest  Service  cooperated in planning construction  of  a
proposed multi-agency facility in Seward known as the Mary Lowell
Center.  The proposed center would provide administrative offices
and  visitor  services  for the National Park  Service  and  U.S.
Forest  Service  and  a  conference facility  for  use  by  those
agencies,  the city, and the public.  Because the building  plans
for the center called for vacating part of Washington Street, the
National Park Service asked the city to vacate Washington  Street
between Fourth and Fifth Avenues.
          The  City  of  Seward  Planning and  Zoning  Commission
passed  a resolution in October 2005 recommending that the  Kenai
Peninsula  Borough (KPB) approve the vacation request.   The  KPB
Planning Commission approved the vacation request on November 28,
2005,  and  forwarded the proposed vacation to  the  Seward  City
Council  with  notice that [t]he City Council has  30  days  from
November  28,  2005 in which to veto the decision  of  the  [KPB]
Planning  Commission.  If no veto is received  from  the  Council
within  the  30-day period, the decision of the  Commission  will
          On   December   12,  2005,  the  Seward  City   Council
considered Resolution 2005-132, which, had it passed, would  have
vetoed  the  KPB Planning Commissions November 28 decision.   The
veto  resolution  received  one vote in  favor  and  three  votes
against; three council members were absent.  Eight days later the
council voted on a motion to reconsider its December 12 vote.  By
a vote of three to three, the motion to reconsider failed.1
          In  January 2006 several Seward citizens filed with the
City  of  Seward clerk an application for a referendum  petition.
The  proposed referendum would have asked Seward voters to repeal
what the application described as [t]he December 12, 2005 vote of
the  City  Council on Resolution 2005-132 which affirmed  partial
vacation  of  Washington  Street by the Kenai  Peninsula  Borough
Planning  Commission[]  on November 28,  2005.   The  city  clerk
denied the petition application, stating that referenda are  only
available  to  challenge passed resolutions and  that  Resolution
2005-132 did not pass, and also that a conveyance of land  is  an
appropriation  and thus an invalid subject for  referendum  under
the  Alaska  Constitution.  The clerks denial  letter  implicitly
reasoned that the street vacation was a conveyance of land.
          In  March  2006 an entity called Washingtons Army  sued
the  city  and  the city clerk in superior court;  the  complaint
sought declaratory and injunctive relief to require the clerk  to
          certify the application for the referendum petition.  The
complaint  described  Washingtons  Army  as  an  association   of
individuals  who  are residents of the City of  Seward,  and  who
oppose the proposed vacation of a portion of Washington Street in
Seward,  Alaska.   The  only  members  of  Washingtons  Army  the
complaint identified were Debra Hafemeister, Bill Hearn,  Marilee
Koszewski, and Sharyl Seese.
          The superior court denied the plaintiffs request for  a
temporary  restraining  order or a preliminary  injunction.   The
court reasoned that vacating a street is an appropriation of city
assets and that, per the Alaska Constitution, referenda cannot be
used to repeal appropriations of city assets.
          Washingtons  Army  then  filed  with  this   court   an
emergency  motion for injunctive relief.  We denied that  motion,
and on the same day the superior court entered final judgment for
the defendants.
          Washingtons  Army and Debra Hafemeister and  the  other
individual plaintiffs appeal the superior courts denial of  their
request for declaratory and injunctive relief.2
     A.   Standard of Review
          Appellant  Hafemeister  makes  two  main  arguments  on
appeal.   First,  she argues that the superior court  erroneously
held that the city council consented to the vacation by operation
of  law.  Second, she argues that the proposed referendum will be
constitutional because a street vacation is not an appropriation.
In  addition  to responding to Hafemeisters arguments,  the  city
argues that Washingtons Army as an entity lacks standing to sue.
          These  arguments raise questions of law subject to  our
independent  review.3  In reviewing questions  of  law,  we  will
adopt  the  rule  of  law  that is most persuasive  in  light  of
precedent, reason, and policy.4
     B.   Standing
          An  entity  must have corporate status or  possess  the
right  to sue in order to have standing.5  The ability to sue  or
be  sued has traditionally centered on the ability of a party  to
be accountable for the process and results of legal proceedings.6
Washingtons  Army, as an entity, lacks standing because  it  does
not  have a person or a legal entity that may be held responsible
for the process and results of the legal proceeding and thus does
not  have  the  ability  to  sue or be sued.7   Nonetheless,  the
individual  citizens identified in the complaint  as  members  of
Washingtons  Army  possess  taxpayer-citizen  standing  and  were
therefore  each  eligible to sue individually.8   Likewise,  they
each have standing to appeal the adverse judgment.9
     C.   Validity of the Proposed Referendum Petition
          The   proposed  referendum  petition  was   potentially
problematic for two main reasons.  First, if there was no  action
by  the Seward City Council, there was nothing for city voters to
repeal.  Second, if vacating the street was an appropriation, the
referendum  would be invalid because a referendum may not  repeal
an appropriation.
          We   address  only  the  first  reason  because  it  is
dispositive of the appeal.  We therefore do not reach  the  issue
of whether vacating Washington Street was an appropriation.
          The  citizens  applied for the referendum petition  for
the stated purpose of asking Seward voters to repeal the December
12,  2005, vote of the Seward City Council on Resolution 2005-132
which affirmed partial vacation of Washington Street by the Kenai
Peninsula  Borough  Planning  Commission[].10   The  Seward  City
Charter  contemplates a referendum from any act of the council.11
Per the charter, official council action requires the vote of  at
least four council members.12  The Seward City Code provides that
[t]he  voters of the city, by referendum, may approve  or  reject
any  ordinance  passed by the city council  except  as  otherwise
provided in this section.13  As both sides agree here, even though
the  city council voted twice, it never passed an ordinance or  a
resolution regarding the vacation of Washington Street.  Only  if
at least four members had voted for a particular result would the
council have taken official action within the meaning of the city
charter and the city code.14  The council took no official action
when  it voted on December 12 because fewer than four votes  were
cast  for either possible result.  Because the council passed  no
          ordinance or resolution regarding the vacation, it took no
action.   The citys referendum provision therefore did not  apply
because  there was no city council action to refer to the voters.
The  city  clerk  did not err in denying the  application  for  a
referendum petition on this ground.
          Because  the city council did not take action,  nothing
could  be  referred to the voters and the clerk did  not  err  in
denying  the  petition.  We therefore AFFIRM the  superior  court
judgment dismissing the citizens complaint challenging the clerks
denial of the petition application.

     1     In  a  February 2006 letter the city stated  that  the
voting tally was threetwo.  The parties on appeal agree that this
tally  was erroneous and that the true tally was threethree,  and
thus  still  one vote shy of the four votes needed  to  pass  the
reconsideration motion.

     2     As  discussed in Part III.B, Washingtons  Army  as  an
entity  does  not have standing to sue or appeal.  The  complaint
alleged  that Washingtons Army was an association of  individuals
who  are  residents  of the City of Seward, and  who  oppose  the
proposed vacation.  The plaintiffs were represented by counsel in
the  superior  court. After entry of judgment, counsel  commenced
this  appeal and then withdrew.  Robert Linville, who is  not  an
admitted  lawyer, wrote the appellants opening and reply  briefs.
The  captions of those briefs list the appellants as  Washingtons
Army,  Debra  Hafemeister,  Bill Hearn,  Marilee  Koszewski,  and
Sharyl  Seese.  When the issue of standing arose on  appeal,  the
individual  named appellants (Hafemeister, Hearn, Koszewski,  and
Seese)  each signed a notice joining in and adopting  the  briefs
filed  by  Linville.   Because  Linville  was  not  one  of   the
individual plaintiffs or appellants and because Washingtons  Army
does  not  have  standing,  we will  refer  collectively  to  the
plaintiffs  and  appellants by the name of  the  lead  appellant,
Hafemeister.   When required by context, we will sometimes  refer
to  the  citizens  collectively as Washingtons Army,  or  as  the

     3    Alaska Legislative Council v. Knowles, 86 P.3d 891, 893
(Alaska   2004)  (stating  that  constitutional  issues   present
questions  of law); N. Kenai Peninsula Rd. Maint. Serv.  Area  v.
Kenai Peninsula Borough, 850 P.2d 636, 639 (Alaska 1993) (stating
that the question[] of standing to sue . . . [is a] question[] of

     4     Knowles, 86 P.3d at 893 (quoting Guin v. Ha, 591  P.2d
1281, 1284 n.6  (Alaska 1979)).

     5     N. Kenai Peninsula Rd. Maint. Serv. Area, 850 P.2d  at
639  (citing Waller v. Butkovich, 584 F. Supp. 909, 925 (M.D.N.C.
1984); Meyer v. City & County of Honolulu, 729 P.2d 388, 390  n.1
(Haw.  App. 1986) affd in part, revd in part, 731 P.2d 149  (Haw.

     6     State  v.  Aleut Corp., 541 P.2d 730,  734-35  (Alaska
1975)   (holding  that  plaintiffs  had  standing  because   they
possessed the requisite permanence to be held accountable for the

     7    Id. at 734-35.

     8     Trustees  for  Alaska v. State, 736 P.2d  324,  329-30
(Alaska 1987).  Taxpayer-citizen standing requires that the  case
be  one of public significance, the plaintiff be appropriate, and
the  plaintiff  capably  and competently represent  the  position
asserted.  Id.

     9      Although  the  individual  citizens  are  no   longer
represented by an admitted attorney, their individual joinders in
the  briefs effectively make them pro se appellants who have  co-
signed pro se briefs on appeal.

     10    The citizens proposed asking voters to repeal the vote
of the Seward City Council, not the vote of the KPBs action.  The
vote would have only been held in the city, not borough-wide.

     11    Seward City Charter  4.6 states that [a] Code provision
may  be  initiated or a referendum may be had on any act  of  the
council in the manner and subject to the limitations as set forth
by law or in the Code.

     12     Seward City Charter  3.5(m) requires [t]he vote of at
least  four  [council] members . . . for official action  by  the
council.   See  also  Seward City Code (SCC) 02.10.040(b)  (1980)
(The vote of at least four members shall be required for official
action  by  the council, unless a larger majority is required  by

     13    SCC 04.15.010(a) (1986) (emphasis added).

     14    Id.

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