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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bragg v. Matanuska-Susitna Borough (08/29/2008) sp-6303

Bragg v. Matanuska-Susitna Borough (08/29/2008) sp-6303, 192 P3d 982

     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

NOLA BRAGG and LINK FANNON, )
) Supreme Court Nos. S- 12576/12596
Appellants and )
Cross-Appellees, ) Superior Court No. 3PA-05-01894 CI
)
v. ) O P I N I O N
)
MATANUSKA-SUSITNA ) No. 6303 August 29, 2008
BOROUGH, )
)
Appellee and )
Cross-Appellant, )
)

          Appeal  from the Superior Court of the  State
          of  Alaska, Third Judicial District,  Palmer,
          Beverly W. Cutler, Judge.

          Appearances:  Kenneth P. Jacobus, Kenneth  P.
          Jacobus,      P.C.,      Anchorage,       for
          Appellants/Cross-Appellees.          Nicholas
          Spiropoulos,  Borough Attorney,  Palmer,  for
          Appellee/Cross-Appellant.

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

          FABE, Chief Justice.

I.   INTRODUCTION
          Nola Bragg and Link Fannon, residents of the Matanuska-
Susitna  Borough, appeal the superior courts order upholding  the
legality  of  the  Boroughs tax on cigarettes and  other  tobacco
products.   They argue (1) that under AS 29.35.170,  the  Borough
lacks  authority to levy an excise tax or any other type of  duty
apart  from property, sales, and use taxes; and (2) that  to  the
extent  that the Boroughs tobacco tax falls within the multistate
tax  compacts definition of sales tax,1 it cannot remain in force
without  voter  ratification.   The  Borough  cross-appeals   the
superior  courts  decision to rule on the  merits  of  Bragg  and
Fannons  complaint,  arguing that the appellants  lack  standing.
Bragg  and  Fannon  qualify  for citizen-taxpayer  standing,  but
nothing  in  the  statutes  or  our case  law  interpreting  them
prohibits the Boroughs tobacco tax.  We therefore affirm.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          On May 17, 2005, the Matanuska-Susitna Borough Assembly
adopted  Ordinance  05-068.  The ordinance  establishes  a  self-
described  excise  tax  on  tobacco,  assessing  fifty  mils  per
cigarette  and forty-five percent of the wholesale price  of  all
other tobacco products.  The incidence of the tax falls on
          the person who:

               (1)   first  acquires the cigarettes  or
          other tobacco products within the borough;
          
               (2)   brings  or  causes  cigarettes  or
          other tobacco products to be brought into the
          borough;
          
               (3)   makes, manufactures, or fabricates
          cigarettes or other tobacco products  in  the
          borough; or
          
               (4)   ships or transports cigarettes  or
          other tobacco products into the borough.[2]
          
The  Borough has stipulated that the ordinance imposed a new  tax
without voter ratification.
          After  the  tax took effect, Nola Bragg,  a  voter  and
resident of the Borough and a smoker, successfully petitioned  to
place  a tax repeal measure on the October 4, 2005 ballot.   That
measure failed by some 2,000 votes.
     B.   Proceedings
          On  November 16, 2005, Nola Bragg and Link Fannon filed
suit.   Their complaint alleged that [t]his excise tax is  not  a
property  tax,  sales  tax, or use tax, and  is  outside  of  the
authority  of  the  Borough to levy and collect.   Alternatively,
they  asserted in their complaint that [i]f this excise tax is  a
sales  or use tax, then it cannot be levied and collected without
first  submitting the tax to the voters for ratification.   Bragg
and  Fannon  maintained  that the Boroughs unauthorized  taxation
violated  taxpayers  constitutionally  protected  right  to   due
process of law and requested injunctive relief requiring a refund
of previously collected taxes.
          The  Borough  answered Bragg and Fannons  complaint  on
December 7, 2005, standing by the legality of its tobacco tax and
relying  on  a  number  of  affirmative  defenses,  including   a
challenge  to  Bragg and Fannons standing to  bring  their  suit.
Bragg  and Fannon moved for summary judgment on January 11, 2006,
and the Borough filed its opposition and cross-motion for summary
judgment soon afterwards.
          During  oral  argument  on the cross-motions,  Superior
          Court Judge Beverly W. Cutler sought to clarify the basis upon
which  Bragg  and  Fannon claimed standing  after  their  counsel
admitted that neither claimant sells, transports, or manufactures
tobacco  products  and that only Bragg smokes.   In  response  to
questioning,  counsel for Bragg and Fannon  maintained  that  any
resident of the Borough would have the standing to make the  same
argument.
          On  August  8,  2006,  the superior  court  issued  its
decision granting the Boroughs motion for summary judgment.   The
court began by [a]ssuming (without deciding) that plaintiffs have
citizen-taxpayer  standing  to bring  this  action,  despite  its
observation  that Bragg and Fannon had not submitted  documentary
materials  to  demonstrate that they are voters and residents  of
the  Borough  nor  otherwise  supplemented  their  pleadings   to
establish standing of any kind.  The court then went on to find[]
as  a  matter of law that the Borough presently is authorized  to
assess  and  collect the disputed tax.  Specifically,  the  court
agreed  with the Borough that the disputed tax falls  within  the
general taxation powers of municipal government.
          The  superior court based its finding on a long history
of  Alaska Supreme Court precedent broadly interpreting municipal
taxation  powers.   In  particular, the  court  referred  to  our
decisions  in Liberati v. Bristol Bay Borough3 and  City  of  St.
Marys  v. St. Marys Native Corp.,4 in which we held that  article
X,  section  1  of  the  Alaska Constitution  restrains  us  from
implying  limitations on the taxing authority of  a  municipality
where  none are expressed. 5  The trial court reasoned that Bragg
and Fannon had failed to demonstrate an express limitation on the
Boroughs  taxing  authority  and  that  Liberati  and  St.  Marys
prevented the court from implying such a limitation.
          Finally,  the superior court held that the tobacco  tax
did  not  require  voter ratification.  In doing  so,  the  court
appears to have adopted the Boroughs characterization of the  tax
as  an excise tax.  The superior court pointed out that Bragg and
Fannon  cite no authority in support of their argument  that  the
tax  was  required  to  be put to a vote prior  to  the  Boroughs
assessment and collection, and that in fact, they relegated their
entire  argument  on  the  issue to a single  sentence  in  their
memorandum  in  support of summary judgment.  The superior  court
thus  adopted  the  Boroughs arguments that no initial  vote  was
required,  but nonetheless observe[d] that a petition  to  repeal
the enabling ordinance was defeated at the polls.
          Bragg  and  Fannon appeal the superior  courts  summary
judgment  ruling,  and  the  Borough cross-appeals  the  superior
courts recognition of Bragg and Fannons standing to sue.
III.      STANDARD OF REVIEW
          We  review  de novo a superior courts grant of  summary
judgment.6  This review applies to constitutional issues and  any
other questions of law,7 including [q]uestions of standing to sue
and the validity of an ordinance adopted without voter approval.8
We  will  uphold  a  grant of summary judgment  when  the  record
presents  no  genuine issue of material fact  and  one  party  is
entitled to judgment as a matter of law.9
IV.  DISCUSSION
          Bragg and Fannon argue that AS 29.25.170(a) allows  the
Borough  to only assess and collect property taxes, sales  taxes,
and  use taxes.  They contend that, as an excise tax, the  fifty-
mil  per-cigarette  tariff falls outside of the  Boroughs  taxing
authority.  They characterize the forty-five percent tax on other
tobacco  products  as a sales tax, requiring  voter  ratification
under  AS  29.45.670 before the Borough may lawfully  assess  and
collect  the  tax.   The Borough cross-appeals  on  the  question
whether  Bragg  and Fannon have standing, maintaining  that  only
plaintiffs  upon whom the legal incidence of the  tax  falls  may
bring suit to challenge the tax.
     A.   The  Superior Court Did Not Err in Reaching the  Merits
          of the Case.
          
          The  superior court assumed without deciding that Bragg
and  Fannon have citizen-taxpayer standing to bring their action.
In  North Kenai Peninsula Road Maintenance Service Area v.  Kenai
Peninsula  Borough, however, we intimated that lower  courts  may
not skip the standing inquiry.10  We therefore address standing as
a preliminary matter.
          The concept of standing has been interpreted broadly in
Alaska.11   For  citizen-taxpayer  standing,  the  doctrine  most
applicable to Bragg and Fannon, we have set out three criteria:
          First,   the  case  must  be  one  of  public
          significance.  Second, the plaintiff must  be
          appropriate.   This means that the  plaintiff
          must  have  an adverse interest.  If  another
          party  is  more  directly  affected  by   the
          outcome,   the   plaintiff  may   be   denied
          standing.    Finally,  the   plaintiff   must
          capably   and   competently   represent   the
          position asserted.[12]
          
The  Borough urges us to hold that Bragg and Fannon lack standing
because  their  case is of insufficient public  significance  and
because  Bragg  and  Fannon  are  inappropriate  plaintiffs.   We
disagree.
          First, the Borough argues that the tax fails to rise to
the  level  of  public  significance because  only  distributors,
wholesalers  and manufacturers pay the tax.  The  Borough  argues
that  the  refund  of all tobacco taxes already collected,  which
Bragg and Fannon sought in their complaint, concerns only the few
entities which will receive a financial benefit if the plaintiffs
prevail,  and  therefore, this is not a matter of public  concern
such that plaintiffs should be allowed standing.
          Our  case  law,  however, does not  define  matters  of
public concern so narrowly.  For example, in Gilman v. Martin, we
upheld  residents  standing to challenge  a  boroughs  land  sale
ordinance,  stating  that  [a]ny  resident  or  taxpayer   of   a
municipality  has a sufficient interest in the disposition  of  a
significant number of acres of the municipalitys land to  seek  a
declaratory judgment as to the validity of the disposition.13 Our
holding in Gilman makes clear that while a challenged transaction
must  be  significant for citizen-taxpayer standing to apply,  it
          need not directly involve the litigants.14  Here, the Borough
estimated  that it would spend sixty thousand dollars to  collect
revenues  of over four and a half million dollars each year  from
its  tobacco tax.  Thus, while only a small number of  businesses
may  directly  pay the tobacco tax, the tax appears to  implicate
matters of significant public concern.15
          Second,  the Borough argues that Bragg and Fannon  lack
standing because they are not taxpayers under this tax.   But  we
have  only denied citizen-taxpayer standing where a claimant paid
no  taxes  whatsoever.16  The Borough does not dispute that  both
Bragg and Fannon are taxpayers in the sense that they pay various
taxes  to  the  Borough as residents of the Borough.17   But  the
Borough ignores any general interest that Bragg and Fannon  might
claim  in assuring that the Borough adheres to the laws governing
its  power  to  assess  and collect taxes.  Rather,  the  Borough
contends  that Bragg and Fannon lack standing because  they  have
not  shown that they pay any portion of the [tobacco] tax because
there  is  no  evidence  that the tax is,  in  fact,  passed  on.
According to the Borough, because [d]istributors, wholesalers and
manufacturers may pass on all, part or none of this tax,  only  a
tobacco  distributor, wholesaler, or manufacturer may bring  this
challenge.
          But  the  Boroughs  assertion that the  tax  might  not
translate  into  higher retail tobacco prices strains  credulity.
The   Boroughs   own   information  memorandum   highlights   the
significant  health related benefits associated with a  cigarette
and  tobacco products tax.  Presumably these benefits will follow
a decrease in tobacco use caused by increased retail prices.  The
information  memorandum also predicts that the tobacco  tax  will
diversify revenues, help alleviate the real property tax  burden,
and   provide  an  additional  source  of  funds  for  education.
Although  profit-minded businesses may pay part of this predicted
increase  in taxes, they may also rely in part on the  relatively
inelastic demand of tobacco consumers,18 who as Bragg and  Fannon
point  out,  are  captive  to an addictive  product.   Thus,  the
Boroughs  argument that individual tobacco consumers  cannot  sue
because they are not taxed must fail.
          Finally, the Borough claims that Bragg and Fannon  lack
standing  because there are more appropriate plaintiffs  who  are
willing and able to bring suit, but have not.  The Borough points
to  Bragg  and Fannons assertion in the trial court that  several
retailers and distributors were available to join the lawsuit  if
necessary.   However, while such plaintiffs may be more  directly
affected  by  the  challenged conduct in  question,  the  Borough
presented no evidence that they are likely to bring suit.19   And
we  have  recognized  that  the mere  possibility  that  [a  more
appropriate plaintiff] may sue does not mean that appellants  are
inappropriate  plaintiffs.20   Moreover,  the  Boroughs  argument
appears to misinterpret the test set out in North Kenai Peninsula
Road  Maintenance Service Area that [i]f another  party  is  more
directly  affected by the outcome, the plaintiff  may  be  denied
standing.21   The  Borough appears to argue that  only  the  most
directly affected parties may bring a claim, otherwise the  court
must deny standing.  That is not the law.
          The Borough cites case law from other jurisdictions  in
support  of  its  challenge to Bragg and Fannons  standing.   For
example, the Borough points to a decision by the Montana  Supreme
Court  that disallowed a gasoline retailers challenge  to  a  tax
assessed to gasoline distributors.22  And the Borough argues that
an Alabama Supreme Court decision23 upholding a consumers right to
challenge a tax on wine nevertheless advances the Boroughs theory
that  Bragg  and Fannon lack standing here because they  are  not
distributors, manufacturers, or anyone else required  by  law  to
pay  the  tax.  Finally, the Borough refers to the United  States
Supreme  Courts holding in Warth v. Seldin that a  collection  of
civic   organizations,  builders,  and  minority  and  low-income
individuals did not have standing to challenge an adjacent  towns
allegedly  discriminatory zoning ordinances.24  The  Warth  court
reasoned  that  standing  may not be  predicated  on  generalized
grievances.25
          The   United   States  Supreme  Court,   however,   has
interpreted the federal constitution to limit standing in  a  way
that  Alaskas constitution does not.26  And even that  court  has
acknowledged that [t]he person who has been accorded a procedural
right  to  protect his concrete interests can assert  that  right
without  meeting all the normal standards for redressability  and
immediacy.27  The law gives various procedural rights to  Borough
taxpayers,  such as the right to a referendum,28  before  certain
taxes may take effect.  To the extent that Bragg and Fannon claim
that the Borough has encroached upon those rights, their standing
rests on a firm basis in the law.
     B.   The  Superior  Court  Did  Not  Err  in  Upholding  the
          Boroughs Authority To Levy Its Tobacco Tax.
          
          Alaska   Statute   29.35.010(6)  grants  municipalities
general powers, subject to other provisions of law . . . to  levy
a   tax  or  special  assessment,  and  impose  a  lien  for  its
enforcement.   The Alaska Constitution requires  that  a  liberal
construction  shall  be given to the powers of  local  government
units.29   And we have interpreted that constitutional imperative
to  make explicit the framers intention to overrule a common  law
rule  of interpretation which required a narrow reading of  local
government powers.30  Here, Bragg and Fannon ask us to  resurrect
that bygone common law rule.  We decline.
          Bragg  and Fannon point out that the general delegation
of authority under AS 29.35.010(6) is subject to other provisions
of  law.   In particular, they argue that this general delegation
of   authority   is   subject   to  a   limitation   implied   by
AS  29.35.170(a).   That section mandates that  a  borough  shall
assess and collect property, sales, and use taxes that are levied
in its boundaries, subject to AS 29.45.31  Bragg and Fannon argue
that  because  no statute makes a similar express  delegation  of
authority  to levy excise taxes, the Borough lacks the  authority
to do so.
          Bragg  and  Fannon  marshal little  support  for  their
statutory interpretation.  They cite Justice Rabinowitzs  dissent
in  Liberati for the proposition that Alaska law does not empower
boroughs  to  levy  a severance tax.  In Liberati,  we  upheld  a
          boroughs imposition of a tax on raw fish against a challenge that
the  tax impermissibly encroached upon the states exclusive right
to regulate natural resources.32  Bragg and Fannon point out that
the  Liberati dissent disputes the majoritys characterization  of
the  fish tax as a sales tax.33  But neither the majority opinion
nor  the  dissent in Liberati suggests that a municipality  lacks
the  authority to levy any tax not expressly contemplated by  the
law.   Rather, the Liberati dissent theorizes that a tax  on  raw
fish  encroaches  upon  the  states  power  to  regulate  natural
resources  pursuant to article VIII of the Alaska Constitution.34
Bragg  and  Fannon  cite  no  parallel  constitutional  provision
implicated by the Boroughs tax on tobacco.
          Bragg  and Fannon intimate for the first time in  their
reply brief that a distinction between home rule and general  law
municipalities  may  bear  some relevance  on  the  Boroughs  tax
authority.   But  AS  29.35.010  grants  general  powers  to  all
municipalities.   Bragg  and Fannon also invoke  our  holding  in
Fairbanks  North  Star Borough v. Howard that  a  borough  cannot
impose  a  real  property  lien  to  collect  sales  tax  from  a
subsequent purchaser.35  The Howard decision, however, hinges  on
an  established  general rule that tax liens arise  only  through
specific   legislative  authorization.36   Again,   no   parallel
restriction on the Boroughs power to levy taxes applies here.  In
short,  Bragg and Fannon acknowledge that AS 29.35.010(6)  grants
local  governments  broad  taxing authority,  but  they  fail  to
establish a legal justification for carving the Boroughs  tobacco
tax out from that grant of authority.
     C.   The  Superior Court Correctly Held that the Tobacco Tax
          Did Not Require Voter Ratification.
          
          Alaska Statute 29.45.670 provides that a new sales  and
use  tax  or  an  increase in the rate of levy  of  a  sales  tax
approved  by ordinance does not take effect until ratified  by  a
majority of the voters at an election.  Bragg and Fannon  contend
that  the  Borough seeks to levy an illegal sales tax on  tobacco
products  other  than  cigarettes  without  the  required   voter
ratification.  Bragg and Fannon assert that measuring  a  tax  on
the basis of the taxed commoditys value, i.e., forty-five percent
of  the  wholesale price,37  renders the tax a sales  tax  or  ad
valorem  tax.   They  rely  primarily on the  following  treatise
passage to support their contention:
          Excise  taxes are taxes upon the manufacture,
          sale  or  consumption  of  commodities,  upon
          licenses  to pursue certain occupations,  and
          upon corporate privileges.  They include  any
          taxes   which   do   not  fall   within   the
          classification  of a poll  or  property  tax.
          Thus,  the term excise tax has come  to  mean
          and  include practically any tax that is  not
          an  ad valorem tax.  An ad valorem tax  is  a
          tax  imposed on the basis of the value of the
          article or thing taxed.  An excise tax  is  a
          tax imposed on the performance of an act, the
          engaging  in an occupation, or the  enjoyment
          of a privilege.[38]
          
Bragg and Fannon highlight the treatises statement that the  term
excise tax has come to mean and include any tax that is not an ad
valorem  tax.   Bragg  and Fannon argue  that  the  tax  on  non-
cigarette  tobacco products fits the definition of an ad  valorem
tax.
          In support of this proposition, Bragg and Fannon cite a
single  case,  from the Commonwealth Court of  Pennsylvania.   In
Blair Candy Co. v. Altoona Area School District, that court  held
that  a  cigarette tax was an excise rather than a sales tax,  in
part because the tax was levied on a per-cigarette basis.39  Bragg
and  Fannon maintain that we cannot construe the Boroughs tax  on
non-cigarette  tobacco  products as an  excise  tax  because  the
Borough assesses it on the basis of wholesale value, rather  than
unit of production.  Other factors, however, influenced the Blair
Candy courts decision:
          The cigarette tax is named an excise tax.  An
          excise  tax  is  defined  as  a  tax  on  the
          enjoyment  of  a  privilege  or  tax  on  the
          manufacture,   sale  or  consumption   of   a
          commodity.   The cigarette tax  is  basically
          then  a tax on the consumption of a commodity
          and  no matter how many times a cigarette  is
          sold  in  the Commonwealth, it is subject  to
          the cigarette tax only once . . . .[40]
          
Indeed, the one-time incidence of the Boroughs tax, its label  as
an   excise   tax,  and  its  express  purpose  of  providing   a
disincentive  to  tobacco consumption  in  the  Borough,  put  it
squarely within the Blair Candy courts definition of excise tax.
          Bragg  and  Fannon go on to invoke the  Multistate  Tax
Compacts  definition of sales tax.  But this statutory definition
does  not advance their argument any more than our case law does.
Codified  at  AS  43.19.010, article II, section 7,  the  Compact
defines a  sales tax as
          a  tax  imposed with respect to the  transfer
          for  a consideration of ownership, possession
          or  custody of tangible personal property  or
          the  rendering of services measured by  price
          of the tangible personal property transferred
          or services rendered and which is required by
          state  or  local law to be separately  stated
          from  the sales price by the seller, or which
          is  customarily  separately stated  from  the
          sales price . . . .
          
Bragg  and Fannon argue that [f]or virtually all tobacco products
brought  into  the  borough,  there  would  be  a  transfer,  for
consideration,  of  ownership,  possession,  or  custody  of  the
product  as part of the bringing of the tobacco product into  the
borough. Moreover, they highlight the Boroughs measurement of the
tax on tobacco products by price.
          But  regardless of the taxable transactions  that  take
place, the Boroughs tobacco tax does not require any transfer  of
          ownership, possession, or control to trigger a taxable event.
More  than  a  sales tax, it resembles an import or manufacturing
tax.   The  taxable event that falls on a distributor  who  first
brings  or  causes  cigarettes or other tobacco  products  to  be
brought  into  the borough may occur months or years  before  the
sale  of  those tobacco products.  Indeed, as the Borough  points
out,  the taxed tobacco products may never be sold at all at  the
retail level.
          In  conclusion,  the Boroughs tobacco tax  targets  the
consumption  of  cigarettes and other  tobacco  products  in  the
Borough.   The means of assessing the tax for certain  categories
of  tobacco  products does not alter its basic  character  as  an
excise  tax.   Consequently,  AS  29.45.670s  voter  ratification
requirement does not apply.
V.   CONCLUSION
          For  the reasons detailed above, we AFFIRM the judgment
of the superior court.
_______________________________
     1    Codified at AS 43.19.010, art. II,  7.

     2      Matanuska-Susitna  Borough  Ordinance  (MSB)   05-068
(2005).

     3      584  P.2d  1115  (Alaska  1978)  (upholding  boroughs
imposition of a sales tax on raw fish after a public hearing  had
taken place).

     4     9  P.3d 1002 (Alaska 2000) (upholding repeal of  sales
tax exemptions without voter ratification).

     5    Id. at 1007 (quoting Liberati, 584 P.2d at 1121).

     6    Id. at 1005.

     7     Evans  ex  rel.  Kutch v. State, 56  P.3d  1046,  1049
(Alaska 2002).

     8     N.  Kenai  Peninsula Rd. Maint. Serv.  Area  v.  Kenai
Peninsula Borough, 850 P.2d 636, 639 (Alaska 1993).

     9    City of St. Marys, 9 P.3d at 1005.

     10    850 P.2d at 639 n.4 (The superior court concluded that
a  decision  regarding McGahans standing to sue was  unnecessary,
since  it  ultimately  decided that  his  claims  had  no  merit.
Unless  McGahan had standing, however, the court should not  have
reached the merits of his claims.).

     11     Id.  at 639 (quoting Moore v. State, 553 P.2d  8,  23
(Alaska 1976)).

     12     Id.   In Trustees for Alaska v. State, Department  of
Natural  Resources, we further noted that we  have  never  denied
citizen-taxpayer   standing  except  on  the   basis   that   the
controversy was not of public significance, or on the basis  that
the  plaintiff  was not a taxpayer.  736 P.2d  324,  329  (Alaska
1987) (citations omitted).

     13    662 P.2d 120, 123 (Alaska 1983).

     14     By  way  of  comparison, we  denied  citizen-taxpayer
standing  to  a neighboring landowner who sought to  contest  the
states  sale of twenty acres of land because the amount  of  land
was  not  sufficiently significant.  Hoblit v. Commr  of  Natural
Res., 678 P.2d 1337, 1341 (Alaska 1984).

     15    Trustees for Alaska, 736 P.2d at 329.

     16     See  Greater  Anchorage  Area  Borough  v.  Porter  &
Jefferson,  469 P.2d 360 (Alaska 1970) (holding that  partnership
that  paid  no  taxes and did not appear on assessment  rolls  of
borough  had  no  standing  to bring an  action  challenging  the
existence of the borough).

     17     The  Borough  does not challenge the  assertion  that
Bragg and Fannon are residents of the Matanuska-Susitna Borough.

     18     See,  e.g., Babak A. Rastgoufard, Too Much Smoke  and
Not  Enough Mirrors: The Case Against Cigarette Excise Taxes  and
for  Gasoline  Taxes,  36  Urban Lawyer 411,  423  (Summer  2004)
(noting  that  cigarette smokers are only to some  degree,  price
sensitive).

     19    Trustees for Alaska, 736 P.2d at 329.

     20    Id. at 330.

     21    850 P.2d at 640 (emphasis added).

     22     See  Carter v. Mont. Dept of Transp., 905 P.2d  1102,
1103 (Mont. 1995).

     23     See Stiff v. Ala. Alcoholic Bev. Control Bd., 878 So.
2d  1138, 1144 (Ala. 2003) (reasoning that the plain language  of
the  statute indicates that the table wine excise tax  is  levied
on the consumer).

     24    422 U.S. 490, 493 (1975).

     25    Id. at 499.

     26     See Trustees for Alaska, 736 P.2d at 327 (Standing in
our state courts is not a constitutional doctrine; rather, it  is
a  rule  of  judicial self-restraint based on the principle  that
courts  should  not resolve abstract questions or issue  advisory
opinions.).

     27     Lujan  v.  Defenders of Wildlife, 504 U.S.  555,  573
(1992).

     28    See AS 29.45.670.

     29    Alaska Const. art. X,  1.

     30    Liberati, 584 P.2d at 1120.

     31    AS 29.35.170(a).

     32    584 P.2d at 1117-24.

     33    Id. at 1124 (Rabinowitz, J., dissenting).

     34     Article VIII of the Alaska Constitution provides,  in
part:

          Section    2.     General   Authority.    The
          legislature    shall    provide    for    the
          utilization,  development,  and  conservation
          of  all  natural resources belonging  to  the
          State,  including land and  waters,  for  the
          maximum benefit of its people.
          
          Section  3.   Common Use. Wherever  occurring
          in  their natural state, fish, wildlife,  and
          waters  are reserved to the people for common
          use.
          
     35     608 P.2d 32, 34 (Alaska 1980) (reasoning that a  real
property  lien is beyond the scope of what may be necessarily  or
fairly  implied  in  or incident to the authority  to  collect  a
sales  tax, particularly since its impact may fall on an innocent
landowner).   The statute at issue in Howard, AS  29.48.320,  has
since been repealed.  Ch. 74,  88, SLA 1985.

     36    608 P.2d at 33.

     37    While the Borough levies part of the tobacco tax on  a
per-cigarette  basis,  for other tobacco  products,  the  tax  is
based upon wholesale price.

     38    16 Eugene McQuillan, The Law of Municipal Corporations
44.190  (Dennis  Jensen  &  Gail  OGradney  eds.,  3d  ed.  2003)
(citations omitted).

     39    613 A.2d 159 (Pa. Commw. 1992).

     40    Id. at 161 (citation omitted).

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