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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 (10/09/2009) sp-6419
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
| WAYNE D. CARMONY, | ) |
| ) Supreme Court No. S- 13143 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3PA-07-1714 CI |
| ) | |
| LONNIE R. McKECHNIE, in her | ) |
| 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.
I. INTRODUCTION
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.
II. FACTS AND PROCEEDINGS
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
legislation.
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.
III. STANDARD OF REVIEW
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
IV. DISCUSSION
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
authority.
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
Griswold.
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
impossible.
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
power.33
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.
V. CONCLUSION
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
2008).
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
1980).
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
29.40.010-.040).
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
29.53.170).
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
2008).
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