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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Carmony v. McKechnie (10/9/2009) sp-6419

Carmony v. McKechnie (10/9/2009) sp-6419, 217 P3d 818

     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,


) Supreme Court No. S- 13143
Appellant, )
) Superior Court No.
v. ) 3PA-07-1714 CI
official capacity as Clerk of the )
Matanuska-Susitna Borough, ) O P I N I O N
Appellee. ) No. 6419 - October 9, 2009
          Appeal  from the Superior Court of the  State
          of  Alaska, Third Judicial District,  Palmer,
          Kari Kristiansen, Judge.

          Appearances:  James  L. Walker,  Palmer,  for
          Appellant.   Nicholas  Spiropoulos,   Borough
          Attorney, Palmer, for Appellee.

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

          CARPENETI, Justice.

          The   proponent   of  a  municipal  ballot   initiative
challenges  a superior court ruling affirming the borough  clerks
rejection  of  his petition application, as well  as  the  courts
award  of  attorneys  fees.  The clerk  and  the  superior  court
rejected  the petition on grounds (1) that the proposed ordinance
was  not  enforceable as a matter of law, (2) that it related  to
administrative rather than legislative matters, and (3) that  the
proposed  measure was a referendum and the application failed  to
comply with the statutory and constitutional requirements  for  a
referendum petition application.  The proposed measure would have
provided  that  all land use planning, regulation,  and  platting
ordinances  adopted by the borough assembly after  July  1,  2007
would  expire as of the next borough election unless approved  by
the  voters.   We  affirm the rejection of the  application.  The
proposed measure was not enforceable as a matter of law  in  that
it  would  have bypassed mandatory planning commission review  of
land   use   ordinances  and  would  have  thwarted   the   state
legislatures  delegation of land use authority to  the  municipal
assembly.   Furthermore,  because  the  plaintiff  was  advancing
statutory rather than constitutional claims, he was not  shielded
from  attorneys  fees under AS 09.60.010(c)(2) and  we  therefore
affirm the award of attorneys fees to the Borough.
          On  July  31,  2007,  Carmony and others  submitted  an
Application for Initiative Petition to the Clerk of the Matanuska-
Susitna  Borough.   The initiative, if approved  by  the  voters,
would  have amended the Matanuska-Susitna Borough Code  (MSB)  by
adding a new section MSB 1.25.011 as follows:
          Ordinances  adopting  or  amending  land  use
          regulations,  platting regulations,  or  land
          use plans . . . adopted by the assembly after
          July   1,   2007,  expire  immediately   upon
          certification  . . . of the  results  of  the
          first  regular  or  special borough  election
          held  after adoption of the ordinance by  the
          assembly,  or  the  effective  date  of  this
          ordinance,   whichever   is   later,   unless
          approved by a majority of the voters  casting
          ballots in that election.
          On  August  13,  2007, the borough clerk  rejected  the
application on three grounds: (1) the proposed ordinance was  not
enforceable  as a matter of law, (2) it related to administrative
rather than legislative matters, and (3) it was not an initiative
but  a referendum that failed to comply with the requirements for
a referendum.
          Carmony  applied  for judicial review by  the  superior
court  under  AS29.26.110(b).  Both  parties  moved  for  summary
judgment.    On  March  24,  2008,  Superior  Court  Judge   Kari
Kristiansen  granted  the  borough  clerks  motion  for   summary
judgment,  upholding the grounds cited in the  boroughs  original
rejection   of  the  initiative,  but  rejecting  the  additional
argument that the proposed legislation was also barred as special
          The  borough then moved for attorneys fees, and Carmony
opposed this on the ground that he was a public interest litigant
under  AS 09.60.010(c)(2).  The superior court found Carmony  not
entitled   to  public  litigant  status  because  his   employer,
Matanuska  Electric Association (MEA), had an economic  incentive
to  file  the  claim, and awarded attorneys fees of $1,633.50  to
McKechnie.   Carmony appealed both as to the   rejection  of  the
petition application and the award of attorneys fees.
          We  review  a grant of summary judgment de  novo,1  and
review  questions  of law presented on appeal  from  a  grant  of
summary  judgment  by  adopting the rule  of  law  that  is  most
persuasive in light of precedent, reason, and policy.2
          We  generally do not review an initiative until  it  is
enacted.3  However, there are two exceptions to this rule: first,
where the initiative is challenged on the basis that it does  not
comply  with  the states constitutional and statutory  provisions
regulating  initiatives,  and second,  where  the  initiative  is
challenged as clearly unconstitutional or clearly unlawful.4 When
we review an initiative prior to submission to the people, we are
mindful that the requirements of the constitutional and statutory
provisions  pertaining  to  the  use  of  initiatives  should  be
liberally  construed so that the people (are) permitted  to  vote
and express their will on the proposed legislation. 5
          Alaska voters can enact or change state law through the
powers of initiative and referendum established in article XI  of
the Alaska Constitution, and the legislature enacted AS 29.26.100
reserving  to  the residents of municipalities the power  to  use
initiatives  and  referenda to enact or change local  ordinances.
Alaska  Statute  29.26.110(a) requires that the  municipal  clerk
certify an application for an initiative petition if it meets the
following requirements:
          (1) it is not restricted by AS 29.26.100;
          (2) it includes only a single subject;
          (3)  it  relates  to  legislative  rather  than  to  an
administrative matter; and
          (4) it would be enforceable as a matter of law.
Alaska  Statute  29.26.100 applies to municipal  initiatives  the
restrictions  found  in  article XI,  section  7  of  the  Alaska
Constitution.  That constitutional section provides:
          The  initiative  shall not  be  used  to  dedicate
          revenues,  make  or repeal appropriations,  create
          courts,  define  the  jurisdiction  of  courts  or
          prescribe  their rules, or enact local or  special
          legislation. The referendum shall not  be  applied
          to  dedications of revenue, to appropriations,  to
          local or special legislation, or to laws necessary
          for  the  immediate  preservation  of  the  public
          peace, health, or safety.
     A.   The  Superior  Court Did Not Err in  Holding  that  the
          Proposal Was Unenforceable as a Matter of Law.
          In  rejecting the application, the borough clerk stated
that the proposal could not be certified under AS 29.26.110(a)(4)
because it was unenforceable as a matter of law:
          [T]he   ordinance  proposed  conflicts   with
          Borough Code, Alaska Statute, and the  Alaska
          State   Constitution,  as   it   appears   to
          supercede and circumvent these laws in regard
          to   the  administrative  processes  for  the
          passage  of ordinances; referendum laws  with
          the    automatic   [e]ffect   of   referendum
          elections    for   questions   of   planning,
          platting, and land use regulations . . .; and
          mandates  regarding  the  Boroughs  duty   to
          provide for platting, planning, and land  use
          regulations . . . . [T]his proposed ordinance
          frustrates    the    execution     of     the
          aforementioned   provisions   .   .   .   and
          therefore,  it is preempted by  the  superior
Judge   Kristiansen   agreed  that  the  proposed   measure   was
unenforceable as a matter of law, holding that initiatives cannot
be  used  to  deprive a municipality of a power which  state  law
specifically allows (and mandates) that it perform.
          Alaska law restricts initiatives to matters that  would
be  enforceable  as  a matter of law.6  We  have  held  that  the
subject of the initiative must constitute such legislation as the
legislative body to which it is directed has the power to enact.7
As  noted  above,  we  ordinarily  will  not  review  a  proposed
initiative prior to its approval by voters.8 However,  we  do  so
here because a question is raised whether the initiative violates
explicit  constitutional  prohibitions or  whether  the  proposed
initiative is in clear conflict with a state statute.9   We  turn
now to those questions.
          We  held in Griswold v. City of Homer10 that zoning  by
initiative  is  invalid.11  This was because the [t]he  power  to
initiate  cannot exceed the power to legislate.12  That  is,  the
people  could not enact a measure by initiative that  was  beyond
the  power  of  the  borough assembly.13  Under Alaska  statutes,
boroughs  (or cities exercising power delegated by their borough)
must   establish   a   planning  commission   that   prepares   a
comprehensive  land  use  plan.14   The  planning  commission  is
required  to review, recommend, and administer measures necessary
to  implement that plan, and the local legislature is required to
adopt  land use provisions [i]n accordance with and to  implement
the comprehensive plan.15  If it bypasses these procedures, zoning
by  initiative exceeds the scope of the legislative power granted
by  the [state] legislature to the local legislature and is  thus
unenforceable as a matter of law.16
          Griswold,  decided after the present case was  appealed
to this court, is applicable here.  The proposed initiative would
enact sweeping changes to present and future land use ordinances,
including  zoning,  by  imposing termination  dates  without  any
involvement  by  the planning commission or any consideration  of
consistency  with the comprehensive plan.  It would  also  impose
termination dates on future amendments to the comprehensive  plan
without any planning commission input.  It is thus clearly barred
by our holding in Griswold.
          Carmony argues that the initiative would not change the
comprehensive   plan  without  planning  commission   involvement
because the Borough Planning Commission would have advance notice
of  such  termination and could recommend to the Assembly whether
or  not  these elements should be re-enacted . . . .  While  this
may be true, it is not relevant, since the initiative would still
set  an  expiration  date for these plan provisions  without  any
planning  commission involvement.  In addition, it  would  impose
          expiration dates on all other land use planning and regulation
ordinances  adopted  by the assembly after July  1,  2007.   This
would  significantly change a wide array of land use  ordinances,
including  the kind of zoning ordinances explicitly addressed  by
          The   omission  of  the  statutorily-mandated  planning
commission  role  is not the only reason the proposed  initiative
would  be  unenforceable  as  a  matter  of  law.   One  of   the
limitations on a legislature is that it does not have  the  power
to  divest  itself and succeeding [legislatures] . . . of  powers
vested  in  it  by  the  general  law  for  the  benefit  of  its
constituents; for this would be to repeal pro tanto  the  general
law.17  Here, the proposed initiative would enact a comprehensive
divestiture  of the local legislatures statutorily-mandated  role
in  zoning  and land use planning.  Such a divestiture  would  be
beyond the legislatures power, so it is also beyond the power  of
the initiative or referendum.
          The  proposed  initiative would subject  all  land  use
enactments  of  the borough assembly to popular  vote.   For  all
practical purposes, the borough assembly would no longer be  able
to  exercise  the  land  use  regulatory  authority  specifically
delegated  to  it by state law.  State law says  that  a  borough
assembly  is  required  to enact a plan for  the  systematic  and
organized development of the borough.18   Such plans are to be  a
compilation of policy statements, goals, standards, and maps  for
guiding  the  physical,  social, and economic  development,  both
public and private, of the borough.19  If the proposed initiative
were  enacted  by  the borough assembly, the  assembly  would  be
divesting  itself of the power delegated to it by state statutes,
as  it  would  make all long-range land use policy  and  planning
          In  Whitson  v.  Anchorage,20 we  addressed  a  similar
attempt  to  use the initiative to divest a local legislature  of
its   statutorily-mandated  powers.   That   case   involved   an
initiative  that  would require that any  new  tax  or  tax  rate
increase  in  Anchorage  be ratified by a majority  of  voters.21
State statutes specifically required that municipal taxes must be
levied by general ordinance of the assembly.22  Under state  law,
this  requirement was part of a set of requirements for home rule
municipalities, such that the municipalities were prohibited from
acting  otherwise  than  as provided.23   We  held:  Plainly  the
proposed amendment would conflict with this provision.  Under the
amendment  the  assembly  could  not  increase  taxes  without  a
ratification by referendum to the voters.24
          Similarly,   in  this  case,  land  use  planning   and
regulation  authority is conferred on the borough  through  state
statutes  that  expressly  delegate these  powers  to  the  local
assembly.25  As in Whitson, it would conflict with state law  for
the assembly to be divested of these powers.  It is true that  in
this  case  the  Matanuska-Susitna Borough is not subject  to  an
express prohibition on acting otherwise than as provided by state
law  as  was  the  case for the Anchorage Borough  in  Whitson.26
However,  the  presence or absence of an express  prohibition  is
less  significant here.  While a home rule municipality  such  as
          Anchorage possesses all legislative powers not prohibited by law
or  by  charter,27 a general law municipality such as  Matanuska-
Susitna  is  an  unchartered  borough  or  city  possessing  only
legislative powers conferred by law.28
          It could be argued that the initiative proposed in this
case  does  not divest the Matanuska-Susitna borough assembly  of
its  state-mandated role because it does not prevent the assembly
from regulating land use, but rather merely puts a time limit  on
the  duration  of  those enactments pending voter  approval.   In
Municipality  of  Anchorage  v. Repasky,29  we  held  that  state
statutes delegating to a municipal assembly the power to  approve
the  school  budget did not preclude the mayor from exercising  a
line  item veto over that budget.30  However, the mayoral  budget
veto  in  Repasky  is readily distinguishable  from  the  popular
reverse veto on land use regulation proposed here.  Repasky dealt
with  a  home rule municipality possessing all legislative powers
not  prohibited by law or by charter.31  In Repasky, the  mayoral
veto was grounded in the municipal charter; the municipality  had
chosen  to reallocate some of the assemblys legislative power  by
giving  the  mayor  a veto power.32  Here, the  Matanuska-Susitna
Charter contains no similar reallocation of power.   Furthermore,
we  noted  in  Repasky  that the Alaska  legislature  would  have
recognized  that  municipal  budget  ordinances  are  legislative
enactments which are typically subject to the veto or  item  veto
          Unlike Repasky, the present case involves a general law
municipality with legislative powers conferred by law.34  That law
specifically  confers  the  land use regulatory  power  upon  the
borough assembly.35  Furthermore, it cannot be said that the state
legislature anticipated when it delegated such land use authority
to  the borough assembly that the borough would submit every land
use  ordinance  enacted by that assembly  to  referendum  by  the
voters.   To  the  contrary, such an arrangement  subverts  state
policy goals.  State law says that a borough assembly is required
to  enact a plan for the systematic and organized development  of
the  borough.36   Such  plans are to be a compilation  of  policy
statements, goals, standards, and maps for guiding the  physical,
social, and economic development, both public and private, of the
borough.37   It  is plain from this statutory language  that  the
legislatures policy goals included marking the land use  planning
and  regulation process with certainty, continuity,  consistency,
and comprehensiveness.
          However,  under the proposed initiative, any  land  use
ordinance  the borough assembly enacted after July 1, 2007  would
be  only temporary and provisional, automatically terminating  at
the  time  of  the next election unless approved by  the  voters.
Similarly, any time the assembly acted to modify or implement its
comprehensive plan, there would be uncertainty as to whether  the
law  it  passed was going to remain in long-term effect until  it
went  on  the  ballot and received voter approval.   If  a  given
measure  failed  to  win  voter  approval,  the  uncertainty  and
resulting  policy and planning vacuum could easily  continue  for
years  while the borough attempted to craft a measure that  would
win voter approval.  The state legislature did not intend such  a
          piecemeal, uncertain process when it mandated that borough
assemblies  enact  comprehensive plans  for  the  systematic  and
organized development of the borough.38  The will of the  people,
as  expressed through the legislature, would be thwarted  by  the
proposed initiative.
          Because the proposed initiative is unenforceable  as  a
matter  of law, we need not reach the superior courts alternative
bases  to  uphold the borough clerks action (i.e.,  the  superior
courts characterization of the initiative as a referendum and its
determination   that   the  initiative  improperly   dealt   with
administrative rather than legislative matters).
     B.   The  Superior  Court  Did  Not  Err  in  Its  Award  of
          Attorneys  Fees  By  Denying  Carmony  Public  Interest
          Litigant Status.
          In  awarding $1,633.50 in attorneys fees to the borough
as  the  prevailing  party, the superior court rejected  Carmonys
claim  that  he was shielded from such fees as a public  interest
litigant.   We  agree  that Carmony was  not  a  public  interest
litigant, although on different grounds than those given  by  the
superior court.
          The   parties  and  the  superior  court  treated   the
determinative  issue  here  as  whether  Carmony  had  sufficient
economic  incentive  to pursue this litigation.   Alaska  Statute
09.60.010(c)(2) bars an award of prevailing party attorneys  fees
for  costs  incurred  defending claims concerning  constitutional
rights  as long as the claims were not frivolous and the claimant
did not have sufficient economic incentive to bring the action or
appeal regardless of the constitutional claims involved.39
          The  superior court made ample findings in  support  of
its  conclusion that Carmony acted on behalf of his employer  MEA
and that MEA had economic incentives to promote the initiative in
question.   However,  we conclude that the question  of  economic
incentives  does  not matter because this case  did  not  involve
constitutional  claims.   As we held in Griswold,  the  power  to
initiate  [at  the  local  level is]  directly  derived  from  AS
29.26.100, not article XI, section 1 of the Alaska Constitution.40
Because  this  case did not involve a constitutional  claim,  but
rather  concerned  the statutory power of the  local  initiative,
Carmony  could  not  be protected by AS 09.60.010(c)(2)  from  an
award of attorneys fees.
          Because  the  proposed ballot measure was unenforceable
as a matter of law, we AFFIRM the superior courts ruling that the
application  for a petition was properly rejected by the  borough
clerk.    Furthermore,   because  claims  involving   the   local
initiative  power are not constitutional claims,  we  AFFIRM  the
award of attorneys fees.

     1     Griswold  v. City of Homer, 186 P.3d 558, 560  (Alaska

     2     Id.  (quoting Alaska Action Ctr., Inc. v. Municipality
of Anchorage, 84 P.3d 989, 991 (Alaska 2004)).

     3     See  Alaskans for Efficient Govt, Inc. v.  State,  153
P.3d  296,  298 (Alaska 2007) (citing State v. Trust the  People,
113 P.3d 613, 614 n.1 (Alaska 2005)).

     4    Id.

     5     Boucher v. Engstrom, 528 P.2d  456, 462 (Alaska  1974)
(quoting  Cope  v.  Toronto, 332 P.2d 977, 979-80  (Utah  1958)),
overruled  on other grounds by McAlpine v. Univ. of  Alaska,  762
P.2d 81 (Alaska 1988).

     6    AS 29.26.110(a)(4).

     7     Municipality of Anchorage v. Frohne,  568  P.2d  3,  8
(Alaska 1977).  See also Griswold v. City of Homer, 186 P.3d 558,
560  (Alaska 2008) (The power to initiate cannot exceed the power
to legislate.).

     8     See  Whitson v. Anchorage, 608 P.2d 759,  762  (Alaska

     9    Id.

     10    186 P.3d 558 (Alaska 2008).

     11    Id. at 563.

     12    Id. at 560.

     13    See Municipality of Anchorage v. Frohne, 568 P.2d 3, 8
(Alaska  1977)  ([T]he subject of the initiative must  constitute
such  legislation as the legislative body to which it is directed
has the power to enact.).

     14     See  Griswold,  186  P.3d at  560-64  (discussing  AS

     15    Id. at 561-62 (quoting AS 29.40.040).

     16    Id. at 563.

     17     Thompson v. Bd. of Trs. of City of Alameda, 77 P. 951,
952 (Cal. App. 1904); see also 82 C.J.S. Statutes  9 (2008).

     18    AS 29.40.020(b)(1).

     19    AS 29.40.030(a).

     20    608 P.2d 759 (Alaska 1980).

     21    Id. at 760.

     22     Id.  at  761 (citing former AS 29.13.100;  former  AS

     23    Id. (quoting former AS 29.13.100).

     24    Id.

     25     See  AS  29.40.040 (regulation of  land  use  by  the
assembly);  AS 29.40.030 (adoption of the comprehensive  plan  by
the  assembly); AS 29.40.070 (adoption of platting   requirements
by the assembly).

     26    608 P.2d at 761 (quoting former AS 29.13.100).

     27    Municipality of Anchorage v. Repasky, 34 P.3d 302, 310
(Alaska 2001) (quoting Alaska Const. art. X, 11).

     28    Id. (quoting AS 29.04.020).

     29    34 P.3d 302 (Alaska 2001).

     30    Id. at 313.

     31    Id. at 310 (quoting Alaska Const. art. X, 11).

     32    Id. at 313.

     33    Id. at 312.

     34    Id. at 310 (quoting AS 29.04.020).

     35    See AS 29.40.010-.040.

     36    AS 29.40.020(b)(1); AS 29.40.030(b).

     37    AS 29.40.030(a).

     38    AS 29.40.020(b)(1); AS 29.40.030(b).

     39    AS 09.60.010(c).

     40     Griswold v. City of Homer, 186 P.3d 558, 563  (Alaska

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