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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Swetzof v. Philemonoff (02/13/2009) sp-6336

Swetzof v. Philemonoff (02/13/2009) sp-6336, 203 P3d 471

     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

PHYLLIS SWETZOF, in her capacity )
as Clerk of the City of St. Paul, ) Supreme Court No. S-13165
Alaska, and the CITY OF ST. PAUL, )
ALASKA, ) Superior Court No. 3AN-07- 09874 CI
)
Appellants, ) O P I N I O N
)
v. ) No. 6336 February 13, 2009
)
ANTHONY PHILEMONOFF and)
NICOLAI MELOVIDOV,)
)
Appellees.)
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Craig F. Stowers, Judge.

          Appearances:   Ronald  L.  Baird,  Office  of
          Ronald  L.  Baird, Anchorage, for Appellants.
          Elisabeth H. Ross, Thomas F. Klinkner, Birch,
          Horton,  Bittner  &  Cherot,  Anchorage,  for
          Appellees.

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

          MATTHEWS, Justice.

          This  opinion  deals with the second  of  two  proposed
initiatives  designed to force the City of St. Paul  out  of  the
business of selling electric power.1  In an earlier order we held
that  the first proposal did not meet the enforceable as a matter
of law requirement of AS 29.26.110(a)(4)2 and authorized the city
clerk to remove it from the ballot for the October 2008 election.3
The  second proposed initiative is challenged on the same  basis,
as  well  as  on  the  ground that it  does  not  relate[]  to  a
          legislative rather than an administrative matter, as required by
AS 29.26.110(a)(3).
          To  set  the  context of this case we  quote  from  our
earlier order:
               At  issue in this case are decisions  by
          Phyllis  Swetzof, Clerk of the  City  of  St.
          Paul,   refusing  to  certify  two   proposed
          initiatives.  The first proposal (Application
          I) stated:
          
               The  qualified voters  of
               the  City  of Saint  Paul
               who   have   signed   the
               attached  pages  of  this
               application for  petition
               hereby  request that  the
               following   measure    be
               submitted     to      the
               qualified voters  of  the
               City    of   Saint   Paul
               pursuant    to     Alaska
               Statute  29.26.100.
               
                    AN ORDINANCE OF
                    THE  PEOPLE  OF
                    THE   CITY   OF
                    SAINT      PAUL
                    PROVIDING  THAT
                    THE   CITY   OF
                    SAINT      PAUL
                    SHALL       NOT
                    ENGAGE  IN  THE
                    SALE         OR
                    DELIVERY     OF
                    ELECTRIC  POWER
                    TO       RETAIL
                    CUSTOMERS   AND
                    REQUIRING   THE
                    CITY         TO
                    ACTIVELY
                    PROMOTE
                    RENEWABLE
                    ENERGY
                    
               BE  IT  ORDAINED  BY  THE
               PEOPLE  OF  THE  CITY  OF
               SAINT PAUL:
               
               $    Section 1.  The City of Saint Paul shall not engage in the
                    sale or delivery of electric power to retail customers and shall
                    actively support renewable energy for sale to retail customers.
                    
$    Section 2.  This ordinance shall take effect 120 days after
certification of the election.
               $    Swetzof refused to certify this proposal finding, among
          other reasons, that it did not meet the enforceable as a matter
          of law requirement of AS 29.26.110(a)(4) because the City could
          not discontinue retail electric service without applying for and
          obtaining the approval of the Regulatory Commission of Alaska
          (RCA).
          
               The second proposal (Application II) was
          submitted  in response to Swetzofs  rejection
          of the first.  It provided:
          
               The  qualified voters  of
               the  City  of Saint  Paul
               who   have   signed   the
               attached  pages  of  this
               application for  petition
               hereby  request that  the
               following   measure    be
               submitted     to      the
               qualified voters  of  the
               City    of   Saint   Paul
               pursuant    to     Alaska
               Statute  29.26.100.
               
                    AN ORDINANCE OF
                    THE  PEOPLE  OF
                    THE   CITY   OF
                    SAINT      PAUL
                    PROVIDING  THAT
                    THE   CITY   OF
                    SAINT      PAUL
                    SHALL       NOT
                    ENGAGE  IN  THE
                    SALE         OR
                    DELIVERY     OF
                    ELECTRIC  POWER
                    TO       RETAIL
                    CUSTOMERS.
                    
               BE  IT  ORDAINED  BY  THE
               PEOPLE  OF  THE  CITY  OF
               SAINT PAUL:
               
               $    Section 1.  The City of Saint Paul shall not engage in the
                    sale or delivery of electric power to retail customers.
                    
$    Section 2.  This ordinance shall take effect 120 days after
certification of the election and shall provide that the City
[of] St. Paul shall take all necessary steps including obtaining
regulatory approval to discontinue electric utility service.
               $    $    Section 3.  This ordinance is subject to the Regulatory
                    Commission of Alaskas approval of the City of Saint Pauls
                    discontinuance of electric utility service.
                    
               When  Swetzof  refused to  certify  this
          proposal,  the  sponsors of  both  proposals,
          Anthony  Philemonoff and  Nicolai  Melovidov,
          filed  suit in the superior court challenging
          her  rulings.  The superior court found  that
          Swetzof  had erred and ordered her to certify
          both applications.  Swetzof has appealed this
          ruling.  An election will be held in the City
          of  Saint Paul on October 7, 2008.   At  oral
          argument,  counsel notified this court  that,
          for   reasons  unrelated  to  this   dispute,
          Application I but not Application II will  be
          on   the   ballot.1   Swetzof  requested   an
          expedited  hearing on appeal and  this  court
          has granted her request.
          _____________________________________________
          ____
               1      But   whether  Swetzof   properly
          refused to certify Application II remains  as
          an issue in this case.[4]
          
          We  ruled that the first proposal (Application  I)  was
not  enforceable  as  a  matter  of  law  because   assuming  the
initiative  passed   the  City  could  not  simply  stop  selling
electric  power within 120 days after the vote.  We  pointed  out
that the City, as a public utility, would have to seek permission
to  sell  the utility or discontinue service from the  Regulatory
Commission   of  Alaska  (RCA),  that  proceedings   before   the
commission  could  be  lengthy, and  that  the  outcome  of  such
proceedings would be uncertain:
               Having considered the parties briefs and
          argument,  the court concludes  that  Swetzof
          correctly  refused to certify Application  I.
          Application I would not be enforceable  as  a
          matter of law because the City of Saint  Paul
          could  not  simply stop selling or delivering
          electrical  power to retail customers  within
          120 days after certification of the election.
          Instead, permission to discontinue or abandon
          electric  service or to sell the  utility  to
          another  entity would have to be  sought  and
          obtained from the RCA.  Proceedings conducted
          by   the   RCA  require  notice  to  and   an
          opportunity   to  be  heard  for   interested
          persons.   The  proceedings may  be  complex,
          expensive,  and  time  consuming,  and  their
          outcome is uncertain.[5]
          
          We   rejected  the  superior  courts  conclusion   that
Application  I  should  be  viewed  as  impliedly  subject  to  a
condition  that the City could only cease operating its  electric
utility  upon  receiving the RCAs approval.   We  found  such  an
implication unwarranted by the proposals language and potentially
misleading to voters:
               The superior court held that Application
          I  should be considered to be subject to  the
          implicit condition that the RCA will  approve
          the Citys application, either to cease retail
          electric  utility  service  or  transfer  its
               certificate.  But given the mandatory and
          time-limited language of Application  I,  the
          nature  of  the  proceedings that  must  take
          place before the RCA, and the uncertainty  of
          the  ultimate  result, we  believe  that  the
          judicial  imposition of an implicit condition
          of  RCA  approval  is  both  unjustified  and
          potentially misleading to the electorate.2
          _____________________________________________
          ___
               2    The superior court relied on a 1965
          decision from an intermediate appellate court
          in California, Hughes v. City of Lincoln, 232
          Cal.  App.  2d  741  (Cal.  App.  1965),   as
          justification  for  its conclusion  that  the
          proposal  was  implicitly subject  to  needed
          approval  by the RCA.  In Hughes the petition
          sought  the cessation of fluoridation by  the
          citys  water  utility.  This  could  only  be
          accomplished  if  the state board  of  public
          health  issued an amended permit.  The  court
          in Hughes held that permission from the state
          board   should  be  considered  an   implicit
          condition of the proposed ordinance.  But  in
          so  ruling  the  court suggested  that  state
          board  approval  of defluoridation  would  be
          routine  since  the  state  board  was   only
          concerned  with water purity and  potability,
          not  dental health:  If the board finds  that
          cessation of fluoride treatment will not make
          the water impure, unpotable or dangerous,  it
          must   permit  cessation.   This  scheme   of
          statutory  regulation does  not  express  any
          state  policy,  one  way  or  the  other,  on
          fluoridation  as a therapeutic measure.   Id.
          at  748.  Hughes is distinguishable based  on
          the  expected  routine nature of  the  needed
          administrative approval there, in contrast to
          the   complex  and  uncertain  administrative
          approval required in this case.[6]
          
          Our  order only dealt with Application I because it was
on  the  October ballot and the second proposal (Application  II)
was  not.  We noted that an opinion would follow with respect  to
Application II.7
          Application  II is challenged on two grounds.    First,
the  City  contends that, if adopted, it would not be enforceable
as  a  matter  of  law and therefore violates AS 29.26.110(a)(4).
Second, the City contends that Application II does not relate  to
a  legislative,  as distinct from an administrative,  matter  and
therefore violates AS 29.26.110(a)(3).
          Before addressing these arguments two observations  are
in  order.  First, we construe voter initiatives broadly so as to
preserve them whenever possible.8  Thus we narrowly interpret the
          subject matter limitations placed on initiatives by the Alaska
Constitution and statutes.9  Nonetheless, courts have a  duty  to
give  careful  consideration  to questions  involving  whether  a
constitutional  or  statutory limitation prohibits  a  particular
initiative proposal on subject matter grounds.10
          Second, because this case involves questions of whether
the  proposed  initiative complies with  the  statute  regulating
initiatives,  it  is  appropriately decided before  the  proposed
initiative is voted on by the electorate:
               Pre-election  review  of  challenges  to
          ballot initiatives is limited to ascertaining
          whether  [the initiative] complies  with  the
          particular   constitutional   and   statutory
          provisions regulating initiatives.[11]
          
Other  claims  of  unlawfulness are justiciable  only  after  the
initiative is enacted.  Thus our review at this stage is  limited
to compliance with AS 29.26.110(a).
     APPLICATION II WOULD BE ENFORCEABLE AS A MATTER OF LAW.
     
          As  noted,  we  held that Application I  would  not  be
enforceable as a matter of law because, contrary to the  language
of  the  proposed initiative, the City could not under state  law
simply stop operating as an electrical utility 120 days after the
initiative passed.12  We concluded that it would be inappropriate
to  read into the proposal an implied condition that the proposal
would  only  be  effective upon the RCAs approval  of  the  Citys
cessation  of service.13  Such an implication would  be  uncalled
for, we concluded, because the proposals language did not suggest
it, the likelihood of RCA approval was uncertain, the process  of
undertaking  to obtain RCA approval would be time  consuming  and
expensive,  and  the  proposal would likely mislead  voters,  who
would not be aware of the judicially implied condition.14
          In  Application  II, the condition of RCA  approval  is
express.   It therefore does not suffer from the same  deficiency
as Application I.  But the City contends that because the RCA may
never approve discontinuance of service by the City, the proposal
is  merely aspirational and would not be enforceable as a  matter
of  law.  In support of this point the City cites footnote 21  of
Kodiak Island Borough v. Mahoney, where we observed that
          [b]ecause  the language of AS 29.26.110(a)(4)
          requires    the   rejection   of   initiative
          petitions  that would be unenforceable  as  a
          matter  of law, we also believe that a  clerk
          must  reject  an initiative that proposes  an
          ordinance  which  is merely  aspirational  or
          which  otherwise lacks the attributes  of  an
          enforceable  law.  For example, the  proposal
          must be comprehensible and concrete enough to
          be capable of enforcement.[15]
          
          Yute Air Alaska, Inc. v. McAlpine16 answers the question
of  whether  Application II is sufficiently  concrete  as  to  be
capable of enforcement.  The initiative proposal there, in  part,
required the governor to use his best efforts to seek the  repeal
          of the federal Jones Act  which requires shipments between
domestic ports to be made on United States ships.17  The governor
was  also required to report annually on progress toward that end
and on the harmful effects of the Jones Act on Alaska commerce.18
The  initiatives opponents argued that the part of  the  proposal
addressing the Jones Act, even if passed, would not be a law, but
merely an aspirational resolution.19  The premise of this argument
was that the constitutional power of initiative is limited to the
proposal  and  enactment of laws.20  We held  in  Yute  Air  that
because  the proposal mandated action by the governor, it  was  a
law rather than merely an aspirational resolution.21
          Like  the proposal in Yute Air, Application II mandates
action.   It  requires  the  City to  take  all  necessary  steps
including  obtaining regulatory approval to discontinue  electric
utility service.  While the steps mandated by the proposal  might
ultimately not succeed, the requirement that they be taken is  as
binding on the City as the best efforts requirement in Yute  Air.
We   conclude   therefore  that  Application  II  satisfies   the
enforceable as a matter of law requirement.
     APPLICATION  II  RELATES  TO A LEGISLATIVE  RATHER  THAN  AN
     ADMINISTRATIVE MATTER.
     
          In   most   jurisdictions  municipal   initiative   and
referendum  powers  are   restricted  to  enactments   that   are
legislative rather than administrative or executive in character.
Often this is a common law restriction, and this court recognized
it  as  such in 1973 in Wolf v. Alaska State Housing Authority.22
In  1985  a  general  revision of the Alaska Municipal  Code  was
passed.23  This revision added AS 29.26.110, which in part (a)(3)
codifies   the  legislative-enactment  restriction  on  municipal
initiatives.24  This court has not had occasion to interpret this
provision.
          The  rationale  for  the rule that provides  that  only
legislative enactments can be enacted by municipal initiatives is
based  on government efficiency grounds.  For instance, one court
has explained:
          A  charter  giving a small group of  electors
          the right to demand a vote of the people upon
          every  administrative act of the city council
          would   place  municipal  government   in   a
          straight-jacket  and make it  impossible  for
          the  citys  officers to carry on  the  public
          business.[25]
          
Likewise, another court has stated:
          While   a   proposed  initiative,  unlike   a
          referendum, does not immediately  suspend  an
          act  of  the Council until such time  as  the
          voters  have  passed on it  .  .  .  it  does
          effectively    leave   the   execution    and
          administration of a given legislative  policy
          in  doubt  pending the outcome of  the  vote.
          Therefore, the same rationale that serves  to
          bar administrative and executive actions from
          being subject to the referendum also has been
          applied to bar them from being subject to the
          initiative:    an  initiative  on   executive
          action  would  seriously  encumber,  if   not
          paralyze,  the  execution  of  a  previously-
          approved  policy  or  program,  without  ever
          actually addressing the merits of the program
          itself.[26]
          
          A  leading  text,  Antieau  on  Local  Government  Law,
skeptically  states  that  [t]here is no  satisfactory  test  for
determining when an ordinance is legislative nor is there uniform
application   of  the  rule.27   Antieau  describes   the   usual
formulation for making the required distinction as follows:
          Courts  applying  the rule usually  say  that
          legislation is legislative if it makes a  new
          law,  whereas it is administrative if it only
          provides  for the execution of  an  old  law.
          The Kentucky Court is typical of the majority
          view  when  it  states  that  the  rule   for
          determining  whether a particular  matter  is
          legislative or administrative, is that if the
          power to be exercised prescribes a new policy
          or  plan  it  is legislative, whereas  if  it
          merely pursues a plan already adopted by  the
          legislative  body  or  some  power   superior
          thereto  it  is administrative.  It  is  also
          said  to  be legislative when it is permanent
          and  general, and administrative when  it  is
          temporary, routine or detailed.[28]
          
A  summary  offered  by  the other leading  municipal  law  text,
McQuillins Law of Municipal Corporations, is similar:
               Actions  relating  to  subjects   of   a
          permanent  and general character are  usually
          regarded  as legislative, and those providing
          for  subjects  of  a  temporary  and  special
          character        are       regarded        as
          administrative. . . .  The test of what is  a
          legislative  and  what is  an  administrative
          proposition,  with respect to the  initiative
          or  referendum, has further been said  to  be
          whether  the proposition is one to  make  new
          law  or  to execute law already in existence.
          The  power to be exercised is legislative  in
          its  nature if it prescribes a new policy  or
          plan;  whereas  it is administrative  in  its
          nature  if  it merely pursues a plan  already
          adopted  by  the legislative body itself,  or
          some power superior to it.  Similarly, an act
          or  resolution constituting a declaration  of
          public purpose and making provision for  ways
          and  means of its accomplishment is generally
          legislative as distinguished from an  act  or
               resolution which merely carries out  the
          policy  or  purpose already declared  by  the
          legislative body.[29]
          
          The  City  suggests that we should use  the  guidelines
employed  by  the Supreme Court of Kansas in City of  Wichita  v.
Kansas Taxpayers Network, Inc.30  The guidelines are:
          1.    An  ordinance  that makes  new  law  is
          legislative; while an ordinance that executes
          an    existing    law    is   administrative.
          Permanency and generality are key features of
          a legislative ordinance.
          
          2.    Acts  that declare public  purpose  and
          provide  ways  and means to  accomplish  that
          purpose   generally  may  be  classified   as
          legislative.   Acts that deal  with  a  small
          segment   of   an  overall  policy   question
          generally are administrative.
          
          3.     Decisions  which  require  specialized
          training    and   experience   in   municipal
          government  and  intimate  knowledge  of  the
          fiscal  and other affairs of a city in  order
          to  make  a  rational choice may properly  be
          characterized as administrative, even  though
          they   may  also  be  said  to  involve   the
          establishment of a policy.
          
          4.   No one act of a governing body is likely
          to  be  solely administrative or legislative,
          and  the  operation  of  the  initiative  and
          referendum statute is restricted to  measures
          which are quite clearly and fully legislative
          and    not    principally    executive     or
          administrative.[31]
          
The  courts of at least two other states, Montana and New Mexico,
have used these guidelines.32
          Adverting to the Kansas Taxpayers guidelines, the  City
argues  that  Application  II  is  primarily  administrative   in
character  for  two reasons.  First, according  to  the  City,  a
rational  decision to discontinue the electric  utility  involves
technical  expertise  that is beyond the  electorates  knowledge.
The  City  argues  that  the third guideline  pertaining  to  the
requirement  of  specialized training and knowledge  applies  and
therefore  the proposal is beyond the initiative power.   Second,
the  City argues that the requirement in Application II that  the
City  take  all necessary steps to obtain regulatory approval  to
discontinue   utility   service  requires   prosecution   of   an
administrative  proceeding.   The  City  argues  that  the  third
guideline  is  implicated here because administrative  litigation
should not be undertaken without expert advice as to the cost  of
proceeding and the chances of success.  The City argues:
               Absurdly, the second proposed ordinance,
          with its command to take all necessary steps,
               would require the City to blindly soldier
          forward   in   the   regulatory   proceedings
          regardless  of cost and regardless  [of]  the
          probability of success.  In the event  of  an
          adverse  ruling by the commission,  the  City
          presumably  must prosecute an appeal  through
          the courts of the state.
          
The  City  also  argues that the commencement and prosecution  of
litigation  is  inherently administrative  in  nature,  and  this
provides  another reason why section 2 of the proposed initiative
relates to an administrative rather than a legislative matter.
          The  sponsors  respond in general by referring  to  our
decision  in  Yute Air Alaska, Inc. v. McAlpine.33  They  contend
that language in the superior courts decision, which we published
as   part   of  our  opinion  in  Yute  Air,  indicates   general
disagreement  with  the  approach taken  by  other  jurisdictions
concerning the legislative/administrative dichotomy.   They  note
that the superior court in Yute Air observed that [a]nalytically,
laws  may  be  enacted on any subject under the  sun:   They  can
command  the tides to stand still for King Canute or the mountain
to  come  to  Mohammed.34  The sponsors infer from  the  superior
courts  decision  in Yute Air that this court concluded  that  an
initiative  requiring the governor to seek repeal  of  a  federal
statute (the Jones Act) related to a legislative matter, and  not
an  administrative matter, because the initiative proposed a  new
public policy.
          The  sponsors also argue that even apart from Yute  Air
the  proposed  initiative  is  legislative  in  character.   They
contend  that the fact that the initiative proposes a new  policy
is  determinative, even though complex technical  issues  may  be
implicated.   They  also contend that the proposal  is  not  made
administrative  in  character  merely  because  it  directs  City
officials to take necessary and specified steps to accomplish the
new policy:
          Initiative Sponsors do not seek to direct the
          Citys conduct of a proceeding before the RCA.
          Instead, their initiatives establish a policy
          objective,  the discontinuance of  the  Citys
          current   retail  electric  utility  service.
          Decisions   regarding   the   specifics    of
          conducting  the  RCA  proceeding   are   left
          entirely to City administrators.  Just  as  a
          directive to the governor to seek the  repeal
          of  a federal statute was held to be a proper
          subject  of  the initiative in  Yute  Air,  a
          directive  to  the  City to  take  the  steps
          necessary  to  discontinue  electric  utility
          service, including participating in necessary
          regulatory  proceedings, is a proper  subject
          for an initiative.
          
          Although  we  agree  in large part  with  the  sponsors
ultimate position on the merits, we do not believe that Yute  Air
          is a source of precedent on the issue of whether a proposed
initiative  is  legislative or administrative in character.   Two
points  indicate  that Yute Air did not rely on  the  distinction
between legislative and administrative initiatives, and so cannot
give us guidance on how to differentiate between them.
          First,  the discussion in the superior courts  decision
set  out in Yute Air suggests that the legislative/administrative
dichotomy does not apply to initiatives at the state level.   The
superior  court explained that unlike state governments in  which
the  three great powers are separated, local governing bodies are
generally  vested  with  an admixture  of  both  legislative  and
administrative powers.35  The superior court implied, then,  that
this    difference   in   governmental   structure   makes    the
legislative/administrative dichotomy relevant  at  the  municipal
level  but not at the state level.  This, in turn, suggests  that
Yute   Air   should   not   be   understood   as   applying   the
legislative/administrative distinction because at issue there was
a statewide rather than a municipal initiative.
          Second,  the decisions analysis was directed  toward  a
concern  other  than the legislative/administrative  distinction.
One  of  the  two  main questions we addressed in  Yute  Air  was
whether  the  state  law initiative at  issue  was  a  law  or  a
resolution.36   The other main issue was whether  the  initiative
complied with the single-subject rule of the Alaska Constitution.37
We  interpret  the superior courts decision to be addressing  the
law/resolution       dichotomy,       rather       than       the
legislative/administrative  dichotomy,  in  the  paragraph   that
begins, [a]nalytically, laws made be enacted on any subject under
the  sun.38   For these reasons, we do not rely on  Yute  Air  as
precedent  on the question of whether the proposed initiative  in
the present case is legislative or administrative in character.
          Instead,  we turn to the tests used by cases  in  other
jurisdictions.  We agree with the City that the guidelines in the
Kansas  Taxpayers opinion are useful, except for the fourth  one.
The  fourth  guideline  states that unless  a  measure  is  quite
clearly  and  fully legislative and not principally executive  or
administrative,  it  is  not  an  appropriate  subject   for   an
initiative.39  In our view the quite clearly and fully legislative
language  of  this  guideline may give too  much  weight  to  the
administrative   aspects   of  an  initiative   containing   both
legislative and administrative matters.  As such, this  guideline
could  run  counter  to  our rule of construction  that  proposed
initiatives  should  be  construed  liberally,  where  reasonably
possible,  to  support the electorates right  to  participate  in
direct law-making.
          Under  the first guideline  is a new law being made  or
an  existing  law  being executed40  the proposed  initiative  is
legislative in character.  Removing the City from the  electrical
utility  business would be a new policy direction rather  than  a
step  along a previously charted course.  Further, the permanency
and generality aspects of the first guideline are also satisfied.
The   proposed  initiative  contemplates  that  the   City   will
permanently  be  out  of  the electrical utility  business.   The
generality   requirement  is  satisfied  because   the   proposed
          initiative is designed to take the City completely out of the
electrical utility business rather than merely barring  the  City
from  serving  a  particular  area within  the  utilitys  service
district.
          With  respect  to  the  second guideline  the  proposed
initiative   is  also  legislative  in  character.   The   second
guideline provides:
               Acts  that  declare public  purpose  and
          provide  ways  and means to  accomplish  that
          purpose   generally  may  be  classified   as
          legislative.   Acts that deal  with  a  small
          segment   of   an  overall  policy   question
          generally are administrative.[41]
          
The  proposed  initiative  declares a public  purpose,  albeit  a
negative  one.  Further, it provides ways and means to accomplish
its purpose by directing the City to take all necessary steps  to
discontinue electric power sales, including obtaining  regulatory
approval.   Again, the proposed initiative does not  merely  deal
with  a small segment of the issue, but rather the overall policy
question  of  whether  the City should  continue  to  act  as  an
electrical utility.42
          The  third guideline, regarding the expertise necessary
to  make  the relevant decision,43 could, in the context of  this
case,  be  seen as conflicting with the second.  It  is  easy  to
credit the Citys argument that deciding to discontinue electrical
utility service could be financially damaging to the City in ways
that  the  electorate cannot readily appreciate.  Further,  there
may be technical reasons underlying the Citys refusal to buy wind-
generated power.44  Disagreement with this decision appears to be
the  motive underlying the proposed initiative.  The City is also
correct  that directing it to engage in regulatory litigation  is
administrative both inherently and because expertise is  required
to  intelligently assess whether such litigation is likely to  be
effective.
          Nonetheless, we think that guideline three  should  not
supersede  guidelines  one and two when  analyzing  broad  policy
decisions  such  as the decision here.  In our  view  the  Kansas
Taxpayers   case  demonstrates  the  appropriate  use   of   this
guideline.  There the proposed initiative sought the repeal of an
ordinance  that dictated that the citys storm sewers be  operated
as  a  storm  water utility system.45  The court found  that  the
initiative was administrative in nature and therefore that it was
properly  outside  the  scope of the  initiative  process.46   In
reaching this conclusion, the court took pains to point out  that
the ordinance sought to be repealed was not the so-called charter
ordinance,  which  gave  the city the authority  to  develop  and
maintain  storm  sewers,  but rather  was  an  ordinance  adopted
pursuant  to the authority of the charter ordinance that included
specific provisions to establish, operate, and fund a storm water
utility  .  .  . within the authority granted by [the]  [c]harter
[o]rdinance.47   Stressing  that  the  city  already  owned   and
maintained  the  existing  system, the court  observed  that  the
operation, management, and financing of the system fit within the
          context of the third guideline pertaining to specialized training
and experience in municipal government.48
          The Supreme Court of Montana also took this view of the
third guideline in its decision in Town of Whitehall v. Preece.49
There  the  question  was whether an initiative  that  sought  to
repeal   an  ordinance  requiring  the  metering  of  water   was
administrative   rather   than   legislative   in    character.50
Interpreting  the  third guideline, the court  viewed  the  issue
presented  in  Kansas  Taxpayers  as  involving  merely   details
concerning funding for the city-owned system.51  The court stated:
               As  to  the  third guideline,  the  most
          effective  means of operating and managing  a
          city-wide water system reasonably fits within
          the   context   of  decisions  that   require
          specialized  knowledge  and  experience  with
          respect   to  city  management.   In   Kansas
          Taxpayers,   which  involved   an   ordinance
          concerning billing for a municipalitys  storm
          water utility system, the court stated:
          
               The physical structure of
               the  system, maintenance,
               and  fee  assessment  and
               collection all fit within
               the  purview of the Citys
               expertise.    The    City
               already     owns      and
               maintains  the   existing
               system;  [the  challenged
               ordinance]   also    fits
               within  a citys expertise
               in    terms   of   fiscal
               management.[52]
               
          Unlike in Kansas Taxpayers, the proposed initiative  in
the  present case deals not with the details concerning the  form
and  funding  of a City service but with the policy  decision  of
whether the City should get out of the business of providing  the
service.   The  proposal  to terminate all  services  falls  most
clearly within the first two guidelines:  it is a new law  and  a
declaration  of  a public purpose, and it provides  for  ways  to
accomplish that purpose.  It would be contrary to the premise  of
the  initiative  power to place the enactment  of  new  laws  and
policies  out  of  bounds simply because such laws  and  policies
present difficult and complex choices.53  We therefore think that
the third guideline must have a subordinate role to the first two
when applied to broad policy decisions such as this one.  We also
believe  that even though ways and means of accomplishing  a  new
policy  may  be  administrative in  character,  they  should  not
disqualify an initiative that both provides for a new policy  and
provides ways and means to accomplish that purpose.  The  purpose
of   the  administrative  exclusion  is  to  avoid  crippling   a
previously enacted policy.  That purpose is not called into  play
when a new policy and the ways and means of accomplishing it  are
          integrated in a single initiative.
          We  therefore  believe that the proposed initiative  is
legislative in character.  We are aided in reaching this view  by
decisions  that  hold  that the question of  whether  to  provide
utility  services on an area-wide basis  or to purchase a private
utility   is  an  appropriate  subject  for  the  initiative  and
referendum power.54  These cases support our view that though the
decision  to purchase or provide a utility service may  implicate
administrative matters, that fact alone does not convert the  new
policy decision itself into an impermissible administrative one.55
These  cases  are  also  important  because  they  indicate  that
acquiring  or establishing a utility is legislative in  character
and  it  is  generally held that the reversal  of  a  legislative
decision  must  also  be  regarded  as  legislative  rather  than
administrative.56
          By most recognized tests for distinguishing legislative
from  administrative proposals, the proposal here is legislative.
It  is permanent in nature rather than temporary.  It declares  a
new policy and deals with the overall policy question rather than
merely a small segment of a pre-established policy.  Likewise, it
establishes  a  new law rather than executing a  law  already  in
existence.   For  these reasons, we conclude  that  the  proposed
initiative relates to a legislative rather than an administrative
enactment and does not violate AS 29.26.110(a)(3).
          For  these  reasons the judgment of the superior  court
with respect to Application II is AFFIRMED.
_______________________________
     1     According to the initiative sponsors, the City refuses
to  take  advantage  of wind generation facilities  on  St.  Paul
Island   that   would  make  clean,  less-expensive   electricity
available to city residents.  In response, the sponsors  seek  to
remove the City from the utility business so that a company  that
will utilize wind-generated electricity can replace it.

     2    AS 29.26.110 provides:

               (a)  An  initiative  or  referendum   is
          proposed  by filing an application  with  the
          municipal  clerk containing the ordinance  or
          resolution  to be initiated or the  ordinance
          or resolution to be referred and the name and
          address  of a contact person and an alternate
          to  whom all correspondence relating  to  the
          petition  may be sent.  An application  shall
          be  signed  by  at least 10 voters  who  will
          sponsor  the petition.  An additional sponsor
          may  be added at any time before the petition
          is  filed  by  submitting  the  name  of  the
          sponsor  to the clerk.  Within two weeks  the
          clerk  shall certify the application  if  the
          clerk  finds that it is in proper  form  and,
          for  an  initiative petition, that the matter
          (1)  is not restricted by AS 29.26.100;   (2)
          includes   only  a  single  subject;      (3)
          relates  to a legislative rather than  to  an
          administrative matter; and     (4)  would  be
          enforceable  as a matter  of  law.     (b)  A
          decision  by the clerk on an application  for
          petition is subject to judicial review.
          
     3    See Swetzof v. Philemonoff, 192 P.3d 992 (Alaska 2008).

     4    Swetzof, 192 P.3d at 992-93.

     5    Id. at 993.

     6    Id.

     7     We  are  now  advised  that Application  II  has  been
certified and will be on the ballot of the October 2009 municipal
election unless otherwise ordered by this court.

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

     9     Brooks  v.  Wright, 971 P.2d 1025, 1027 (Alaska  1999)
(When reviewing initiative challenges . . . we narrowly interpret
the  subject  matter  limitations that  the  Alaska  Constitution
places on initiatives.).

     10    See Staudenmaier v. Municipality of Anchorage, 139 P.3d
1259,  1261  (Alaska  2006)  ([I]nitiatives  touching  upon   the
allocation   of  public  revenues  and  assets  require   careful
consideration. (quoting Pullen v. Ulmer, 923 P.2d 54, 58  (Alaska
1996)  (internal quotation marks omitted)); Brooks, 971  P.2d  at
1027  ([W]e have a duty to give questions involving the propriety
of an initiatives subject matter careful consideration.  (quoting
Pullen, 923 P.2d at 58)).

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

     12     See Swetzof v. Philemonoff, 192 P.3d 992, 993 (Alaska
2008).

     13    Id.

     14    Id.

     15    71 P.3d 896, 900 n.21 (Alaska 2003).

     16    698 P.2d 1173 (Alaska 1985).

     17    See id. at 1175.

     18    See id. at 1177.

     19    Id. at 1175.

     20     Alaska Const. art. XI,  1 (The people may propose and
enact  laws by the initiative, and approve or reject acts of  the
legislature by the referendum.).

     21    Yute Air, 698 P.2d at 1176.

     22    514 P.2d 233, 235 n.13 (Alaska 1973).

     23    See ch. 74,  1-20, SLA 1985.

     24    See id.  9.

     25     Housing Auth. of Eureka v. Superior Court,  219  P.2d
457, 461 (Cal. 1950).

     26     Convention  Ctr.  Referendum Comm.  v.  D.C.  Bd.  of
Elections & Ethics, 441 A.2d 871, 875 (D.C. 1980).

     27    6 Sandra M. Stevenson, Antieau on Local Government Law
89.06, at 89-10, 89-11 (2d ed. 2008).

     28     Id.  at 89-11 (quoting City of Newport v. Gugel,  342
S.W.2d 517, 519 (Ky. 1960)).

     29     5 Eugene McQuillin, The Law of Municipal Corporations
16:54 at 407-11 (3d ed. 2004).

     30    874 P.2d 667 (Kan. 1994).

     31    Id. at 671-72 (citing City of Lawrence v. McArdle, 522
P.2d  420  (Kan.  1974) (internal citations and  quotation  marks
omitted)).

     32     See Town of Whitehall v. Preece, 956 P.2d 743, 749-51
(Mont. 1998); Johnson v. City of Alamogordo, 910 P.2d 308, 312-13
(N.M. 1996).

     33    698 P.2d 1173 (Alaska 1985).

     34    Id. at 1176.

     35    Id.

     36    Id. at 1182.

     37    Id. at 1180.

     38    Id. at 1176.

     39    City of Wichita v. Kansas Taxpayers Network, Inc., 874
P.2d 667, 672 (Kan. 1994).

     40    Id. at 671-72.

     41    Id. at 672.

     42     Cf.,  e.g., Keigley v. Bench, 63 P.2d 262,  263,  265
(Utah  1936) (holding a resolution to issue bonds for the purpose
of  acquiring  or  constructing an electric  utility  system  was
legislative and therefore subject to referendum because, in part,
the  accomplishment of that end was a matter of public policy  of
vital importance); State ex rel. Boynton v. Charles, 18 P.2d 149,
150  (Kan. 1933) (holding that a referendum to repeal an  enacted
ordinance authorizing the city to build and equip a municipal gas
plant  and  directing the city to instead buy gas under  contract
from  a private party was legislative because the question was  a
matter  of vital public interest and policy and of a general  and
permanent character).

     43    Kansas Taxpayers, 874 P.2d at 672.

     44    The record is silent on what wind-generation facilities
are  available  to  the City, who owns them,  what  the  cost  of
purchasing  electricity  from  the  facilities  would  be,   what
equipment  would be required to ensure that adequate  electricity
would  be  available at all times, and what  the  costs  of  this
equipment would be.

     45    Kansas Taxpayers, 874 P.2d at 669.

     46    Id. at 672-73.

     47    Id. at 672.

     48    Id.

     49    956 P.2d 743, 750 (Mont. 1998).

     50    Id. at 745, 749.

     51    Id. at 750.

     52    Id. (quoting Kansas Taxpayers, 874 P.2d at 672).

     53     See Alaska Const. art. I,  2 (All political power  is
inherent  in  the  people.  All government  originates  with  the
people, is founded upon their will only, and is instituted solely
for  the good of the people as a whole.); Alaska Const. art.  XI,
7  (enumerating  exceptions to the power of  initiative  but  not
including difficulty of subject matter as such an exception); see
also  Tumpson v. Farina, 573 A.2d 472, 474 (N.J. Super. App. Div.
1990)  (holding an ordinance adopted to implement a redevelopment
project  on  the citys waterfront was legislative and subject  to
referendum,  and  stating that though the project  is  a  complex
matter    which    demanded   careful    study    and    thorough
investigation,  .  . . we find no evidence that  the  legislature
intended to bar referenda for such reasons).

     54     See, e.g., Scott v. City of Orlando, 173 So. 2d  501,
505  (Fla.  Dist.  App. 1965) (quoting McQuillin  approvingly  in
noting  that acquisition or construction of a public utility  has
generally been deemed [a] proper [proposition] for initiative  or
referendum); State ex rel. Didelius v. City Commn of Sandusky,  2
N.E.2d  862,  865  (Ohio  1936)  (holding  an  initial  ordinance
authorizing  the acquisition or construction of a public  utility
and providing for the method of financing the project was subject
to  referendum  but subsequent ordinances incidental  to  and  in
furtherance  of such project would not be subject to referendum);
Low  v.  City  of  Monticello, 54 P.3d  1153,  1161  (Utah  2002)
(holding the question of whether the city council should exercise
the  option  reserved  to  it  by  ordinance  to  repurchase  the
electrical power distribution system was legislative and  subject
to referendum because the decision to purchase or acquire a power
system . . . is a purely legislative decision that did not become
administrative simply because pursued via exercise of  previously
negotiated contractual right); Keigley v. Bench, 63 P.2d 262, 265
(Utah  1936)  (holding  a  resolution  regarding  financing   the
purchase  of  an  electric  utility system  was  legislative  and
subject to referendum because, in part, it was calculated to bind
[the  city] to contract for or purchase an electric lighting  and
power system and to operate [it]); 5 Eugene McQuillin, The Law of
Municipal Corporations  16:56 at 421 (3d ed. 2004); cf. Whitehead
v.  H  & C Dev. Corp., 129 S.E.2d 691, 696 (Va. 1963) (While  the
establishment  of the city-owned water system may  have  been  in
pursuance  of a broad public policy and, therefore, a legislative
matter,  the  receipts and expenses incidental to its maintenance
and  management are executive or administrative matters.).  Other
cases  hold  that the decision of whether or not  a  city  should
offer to renew a utility franchise is legislative because such  a
decision involves legislative discretion.  See Lindelli  v.  Town
of  San  Anselmo,  4  Cal. Rptr. 3d 453,  466  (Cal.  App.  2003)
(holding  a citys decision to award a waste management  franchise
to  a  new provider was subject to referendum and stating,  [t]he
issuance   of   a  franchise  involves  the  setting,   not   the
implementation,  of  public policy . . .  [t]he  rule  is  firmly
established that the granting of a franchise by a city or  county
is  a legislative act ) (citations omitted)); Vanmeter v. City of
Paris,  273  S.W.2d 49, 50 (Ky. 1954) (distinguishing an  earlier
Kentucky case wherein the opposite result was reached because  in
that case a statute mandated the city offer a franchise for sale,
leaving no legislative discretion in the legislative body).

     55    See Low, 54 P.3d at 1161 (When the decision to purchase
is made, the city council enacts a law authorizing city officials
to  take  the  administrative action  necessary  to  realize  the
purchase.); cf. State ex rel. Wilkinson v. Edwards, 266 S.W. 127,
128-30  (Mo. 1924) (concluding an ordinance locating a  right  of
way  for  construction  of  a  road and  directing  the  city  to
institute all necessary legal proceedings for the acquisition  of
the  land  was legislative in character and therefore its  repeal
was subject to referendum).

     56     See  Wilkinson, 266 S.W. at 130 ([A] legislative  act
cannot  be repealed . . . by an administrative order.  Such  [an]
act can only be repealed by a later legislative act.).

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