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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Mullins v. Local Boundary Commission (3/12/2010) sp-6462

Mullins v. Local Boundary Commission (3/12/2010) sp-6462, 226 P3d 1012

     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

MARGRET A. MULLINS, )
) Supreme Court No. S- 12912
Appellant, )
) Superior Court No. 4FA-07-01738 CI
v. )
) O P I N I O N
LOCAL BOUNDARY )
COMMISSION, and STATE OF ) No. 6462 March 12, 2010
ALASKA DIVISION OF )
ELECTIONS, )
)
Appellees. )
)
Appeal    from     the
          Superior Court of the State of Alaska, Fourth
          Judicial District, Fairbanks, Randy M. Olsen,
          Judge.

          Appearances:  Margret  A.  Mullins,  pro  se,
          Delta    Junction.    Marjorie   L.   Vandor,
          Assistant  Attorney General, and  Richard  A.
          Svobodny,  Acting  Attorney General,  Juneau,
          for Appellees.

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

          FABE, Justice.

I.   INTRODUCTION
          Margret   Mullins  filed  a  suit  in  superior   court
challenging  the decision of the Local Boundary Commission  (LBC)
to  approve a petition for incorporation of the Deltana  Borough.
She  sought  to  stay the election in which voters  would  decide
whether to incorporate the proposed borough.  The superior  court
denied  Mullinss  motion to stay the election,  and  when  voters
overwhelmingly  rejected  the  incorporation  of   the   proposed
borough,  the  superior  court dismissed  her  lawsuit  as  moot.
Mullins appeals.  Because only declaratory relief is available to
Mullins  on  claims presented to the superior court, and  because
claims  of  this  nature  are not likely to  consistently  escape
judicial review, we affirm the superior courts dismissal  of  the
lawsuit on mootness grounds.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          On  January  3,  2006, 259 voters in  the  Delta-Greely
region  filed  a  Petition to the Local Boundary  Commission  for
Incorporation of the Deltana Borough, a Unified Home-Rule Borough
seeking  to  incorporate as a borough the  Delta-Greely  Regional
Educational  Attendance  Area. Staff  for  the  LBC  published  a
preliminary  report  in  November 2006  and  a  final  report  in
February  2007,  both  of  which  recommended  approval  of   the
petition.   The  LBC  received written  public  comments  on  the
petition and the preliminary report.
          On March 16, 2007, the LBC held a public hearing on the
petition  in  Delta Junction, which was attended by  251  people.
Prior to the hearing, the five members of the LBC, along with two
staff,  toured  parts of the proposed borough  by  vehicle.   The
following day, the LBC convened a decisional meeting and  granted
the  petition  by unanimous vote.  This decision was memorialized
in  a written statement of decision, issued on April 12, 2007, in
which  the  LBC  made  factual findings that  the  standards  for
borough    incorporation   were   met.    Seven   requests    for
reconsideration were filed by the public, including  one  request
filed  by  Mullins, challenging numerous aspects of the statement
of  decision.   These  requests  were  all  denied  after  public
meetings.
          On  May  11, 2007, the LBC notified the Alaska Division
of  Elections  of its approval of the petition and  directed  the
Division   to  order  a  referendum  election  on  the   proposed
incorporation  of  the Deltana Borough.  The Division  ordered  a
vote-by-mail election, with an election date of August 21,  2007.
The  elections purpose was to decide: (1) whether to  incorporate
the Deltana Borough; (2) whether to approve certain prerequisites
to  incorporation, including an Agreement for Payment in Lieu  of
Taxes  between  Delta  Junction and  Teck-Pogo,  Inc.,  a  mining
company  (the  Pogo PILOT agreement) and taxes on  heating  fuel,
vehicle  gas,  and electrical power; and (3) who  the  mayor  and
borough   assembly   members  would  be  if  the   borough   were
incorporated.   The vote-by-mail election was held  as  scheduled
and   the  residents  of  the  proposed  Deltana  Borough   voted
overwhelmingly  against  the  borough  incorporation   and   also
rejected  the combined ballot question regarding the  Pogo  PILOT
agreement and proposed taxes.
          In  response to several complaints filed prior  to  the
election, the ombudsman for the State of Alaska investigated  the
LBCs process of approving the petition.  In the final report, not
issued  until  March 30, 2009, the ombudsman found  a  number  of
irregularities in the LBCs process, including a failure to  issue
adequate  public notice, a failure to accommodate the substantial
Russian language minority in the region, and a failure to  engage
in  government-to-government consultation with the Mendas  Cha-Ag
Tribe at Healy Lake.
     B.   Proceedings
          On   June  11,  2007,  after  the  final  request   for
reconsideration of the LBCs approval of the petition  was  denied
and before the incorporation election was held, Mullins filed  an
appeal  before the superior court challenging the LBCs  decision.
Her  appeal  was  heard by Superior Court Judge Randy  M.  Olsen.
Mullins raised twenty-two points on appeal, alleging that the LBC
committed   numerous  errors  in  approving  the   petition   and
challenging various election procedures.  Mullins later attempted
to  amend  her appeal to add claims directly against the Director
of Elections.
          On  July  9, Mullins moved for a preliminary injunction
to  stay the election, and she requested an expedited hearing  on
her  motion.   The superior court held a hearing on  July  20  to
consider  Mullinss  motion.  Mullins, who was to  participate  by
telephone,  did  not  call in to the hearing until  approximately
seventeen minutes after it began, apparently because she had  the
wrong  number.   At the hearing, the court stated that  it  would
issue a decision on Mullinss motion to stay the election by  July
27   three days before ballots were to be sent out.  On July  27,
the  superior court denied Mullinss motion.  Mullinss request for
reconsideration of this decision was denied on August  22,  2007,
one day after the election.
          After  the  Director  of Elections certified  the  vote
against  incorporation of the Deltana Borough, the LBC  moved  to
dismiss Mullinss administrative appeal as moot, arguing that  the
vote  against  incorporation rendered void the LBCs  decision  to
approve  the petition and that no relief is available to Mullins.
The  superior  court  granted this motion and dismissed  Mullinss
appeal  on  October 5, only four days after the LBCs  motion  was
filed.  Mullins filed an opposition to the LBCs motion to dismiss
on October 17 and, on October 23, a Motion and Affidavit for this
Court  To  Vacate Its Order Dismissing this Case in Its Entirety,
and  Protest  against the Violations of this Pro  Se  and  Public
Interest  Appellants Civil Rights, Including the  Denial  of  Due
Process of Law by this Court.  On November 21, the superior court
issued  an  order of clarification reaffirming its  dismissal  of
Mullinss lawsuit as moot.
III. STANDARD OF REVIEW
          Mullins  requests that we review all decisions made  by
the  superior court.  She lists forty-seven alleged errors,  both
procedural and substantive, in her statement of points on appeal.
We  review the superior courts procedural decisions for abuse  of
discretion.1    We  review  questions  of  mootness   under   the
independent judgment standard.2
IV.  DISCUSSION
          In   her   administrative  appeal,  Mullins  identified
legitimate  problems with the process leading up to the  approval
of  the  petition  to incorporate the Deltana Borough.   But  the
public  has  now  rejected  the  incorporation  of  the  proposed
borough,  as  Mullins  urged it to do.  The question  before  us,
then,  is  whether  there  is further relief  to  be  granted  to
Mullins,  and  if  not,  whether an  exception  to  the  mootness
doctrine should apply to this appeal.
          Mullinss   allegations   fall   roughly   into    three
categories: (1) alleged procedural errors by the superior  court;
(2)  alleged defects in the approval of the petition by the  LBC;
and (3) alleged defects in the election process.  We address each
allegation of error in turn.
     A.   Alleged Procedural Errors by the Superior Court
          Mullins  alleges that the superior court made a  series
of procedural errors while considering her administrative appeal:
that  the superior court ruled on the LBCs motion to dismiss  the
complaint  without affording Mullins an opportunity  to  file  an
opposition;  that the superior court delayed sending Mullins  the
order  of  dismissal  and order of clarification;  and  that  the
superior court gave Mullins the wrong call-in number for the July
20  hearing.   She argues that these claimed errors violated  her
constitutional rights and require us to reverse the dismissal  of
her appeal.
          Mullins first complains that the superior court  failed
to  allow  her  adequate time to respond to the  LBCs  motion  to
dismiss.   Her claim has merit  it was an abuse of discretion  to
rule  on  the  LBCs motion only one week after it was  served  on
Mullins,  well before the eighteen days in which Mullins  had  to
file  her  opposition  had  elapsed.3  But  the  superior  courts
failure  to  allow  Mullins adequate time  to  respond  does  not
require  a reversal of its decision because Mullins can  show  no
resulting prejudice.4  After the superior court made its  initial
ruling, Mullins filed an opposition to the LBCs motion to dismiss
the  appeal  as  moot  and then a motion to vacate  the  superior
courts  dismissal of her lawsuit as moot.  Thereafter, the  court
issued an order of clarification reaffirming the dismissal of the
appeal.   Because the superior court considered Mullinss position
and arguments regarding why her appeal should not be dismissed as
moot,   Mullins  was  not  prejudiced  by  the  courts  premature
decision.5   Moreover, we now apply our independent  judgment  in
deciding the LBCs motion to dismiss the case on mootness  grounds
without reference to the opinion of the superior court.   Our  de
novo review of the merits of the LBCs motion to dismiss will cure
any prejudice that Mullins potentially suffered from the superior
courts procedural error.6
          Mullins  expresses  further concern that  the  superior
court  did not mail its order of dismissal until four days  after
it  was  entered or its order of clarification until  seven  days
after  it  was  entered.   This delay in distribution  caused  no
prejudice  to  Mullins because the time for appeal,  review,  and
reconsideration of the written order did not begin until the date
shown  in  the clerks certificate of distribution.7  It therefore
does not require us to reverse the dismissal of Mullinss appeal.
          Finally,  Mullins  complains that  the  superior  court
provided her with the wrong phone number for the July 20  hearing
on  her  motion for a preliminary injunction.  Even if the  court
accidentally  provided Mullins with an incorrect number  for  the
hearing,8  such a mistake would not merit reversal of the  courts
decision.   Mullins was able to join the hearing  after  a  short
delay and, after the court summarized the part of the hearing she
missed,  she  was  provided  with an  opportunity  to  be  heard.
Furthermore, the court made no substantive rulings at or based on
the July 20 hearing but only set a briefing schedule.
          We  thus  conclude that none of the alleged  procedural
errors  by  the  superior  court  support  the  reversal  of  its
dismissal of Mullinss appeal.
     B.   Alleged   Substantive  Errors  by  Superior  Court   in
          Dismissing Case as Moot
          
          The  crux  of Mullinss appeal is that it was  error  to
dismiss  her  administrative appeal as moot because questions  of
the  legality  of  the  LBCs  conduct  and  the  election  remain
unadjudicated.  In Mullinss administrative appeal to the superior
court,  she  alleged  that the LBC made the following  errors  in
approving the petition: (1) improperly finding that the  proposed
borough  satisfied the regulatory requirements for incorporation;
(2)   excluding   Slavic   and  Native   populations   from   the
incorporation  process;  (3)  failing  to  adequately  distribute
informational materials to the public; and (4) violating the Open
Meetings Act by using information gathered during a private  tour
of  the  proposed  borough  in making  its  decision.   She  also
challenged  the incorporation election procedures, including  the
use  of  a  mail-in  ballot, the proposed schedule  for  counting
ballots, the combining of the vote on borough incorporation  with
the  vote  for  borough officials in the same election,  and  the
combining of the vote on the Pogo PILOT agreement and the vote on
taxes  in  the same ballot question.  Mullins requested that  the
superior  court  stay the election, order that the  incorporation
vote  be  conducted separately from and prior to the election  of
borough  officials,  order  that  the  vote  on  the  Pogo  PILOT
agreement  and  taxes  be  presented as separate  questions,  and
direct the LBC to begin the incorporation process from scratch.
          The  superior court initially dismissed Mullinss appeal
in  a  summary  order. After Mullins filed two additional  briefs
with  the superior court, the court issued a two- paragraph Order
of Clarification stating, in its entirety:
               The court was assigned to hear an appeal
          of  the  Local Boundary Commission  decision.
          Although  multiple defects in the  underlying
          proceedings were alleged, the end  result  of
          the  vote  of the community was to  frustrate
          any  effect  of the Local Boundary Commission
          decision.
          
               Because  the  court was assigned  as  an
          appeals  court, it was not acting as a  trial
          court.   Any  complaints about the underlying
               proceedings would only be considered on the
          question as to whether the decision should be
          reversed.  The court would not, as an  appeal
          court, hear new evidence or make decisions on
          any  matter  except  whether  to  reverse  or
          affirm the decision.  Accordingly, the appeal
          was  not  the  place to consider  complaints,
          except  as  they  would  affect  the  appeal.
          Because  there  is  no need  to  reverse  the
          decision, which no longer has any effect, and
          is  moot,  the case has been dismissed.   New
          filings will not be addressed.
          
          We   apply  our  independent  judgment  in  determining
whether Mullinss appeal of the LBCs approval of the petition  was
properly dismissed as moot.9  A court will generally not consider
questions  where events have rendered the legal issue moot.10   A
claim  is  moot  if it has lost its character as a present,  live
controversy  or  if the party bringing the action  would  not  be
entitled to any relief even if it prevails.11
          1.   Alleged wrongdoing by the LBC
          It  is  clear that Mullinss complaints against the  LBC
were  mooted by the election.  Mullins appealed the LBCs decision
to  approve  the  petition, seeking to have  the  superior  court
overturn  the  decision based on various alleged defects  in  the
approval  process.   The  vote against incorporation  voided  the
approval decision and provided the principal relief that  Mullins
sought in her appeal to the superior court.12
          Even if claims are moot, a court may still hear them if
they  fall  within the public interest exception to the  mootness
doctrine.   In determining whether the public interest  exception
applies,  a court considers: (1) whether the disputed issues  are
capable  of  repetition, (2) whether the  mootness  doctrine,  if
applied, may repeatedly circumvent review of the issues, and  (3)
whether  the  issues  presented are so important  to  the  public
interest as to justify overriding the mootness doctrine.13   None
of  these  factors  is  dispositive; each is  an  aspect  of  the
question  of  whether the public interest dictates that  a  court
review  a moot issue.14  The proper inquiry in this case  is  not
only  whether the LBCs challenged approval decision  falls  under
the  public  interest exception, but also whether the  underlying
wrongful conduct alleged by Mullins does.15
          The  LBCs  approval of the petition, and its  allegedly
arbitrary   finding   that  the  petition  satisfied   regulatory
requirements  for  incorporation, do not fall  under  the  public
interest exception because it is unlikely that a similar petition
will  be  filed  with and approved by the LBC, and such  approval
decisions  can  be, and often are, the subject of  legal  review.
First, regulations prevent the LBC from accepting a substantially
similar  petition for two years after such a petition is rejected
by  voters.16   And  as a practical matter,  the  LBC  is  highly
unlikely   to  approve  the  same  petition  after  it   was   so
overwhelmingly rejected by voters.  If and when another  petition
is  submitted, even tracing the same boundaries as  the  petition
          submitted in January 2006, the LBC must again review whether the
petition satisfies the criteria for incorporation, a highly fact-
specific  inquiry.17  It is unlikely that the allegedly erroneous
findings  and  approval  decision  will  be  repeated.    Second,
citizens have the right to appeal decisions of the LBC under  the
Administrative Procedure Act.18  These decisions,  including  the
LBCs  interpretation  and application of  regulations  concerning
incorporation, are regularly challenged in court and do not evade
review.19   Therefore, even accepting that  they  are  issues  of
public  importance, the approval of the petition by the LBC,  and
any errors in applying regulatory criteria for incorporation, are
moot  and  will  not  be  considered under  the  public  interest
exception.
          Mullinss   remaining  complaints  regarding  the   LBCs
conduct  relate  to public participation: exclusion  of  minority
groups  from the incorporation process, insufficient distribution
of  informational documents, and reliance on a meeting closed  to
the  public  in making its decision.  Such problems are  arguably
capable  of  repetition, although the facts in each instance  may
vary  slightly.20   Moreover, failure to  adequately  inform  and
include  the  public  in decision-making is a  matter  of  public
importance.  But complaints regarding public participation do not
repeatedly evade judicial review.  We analyze this prong  of  the
public interest exception test by comparing the time it takes  to
bring  the appeal with the time it takes for the appeal to become
moot.21  There is no reason to believe that the time between  the
approval  of  a  petition by the LBC based on  inadequate  public
participation  and the incorporation election is insufficient  to
permit  judicial review.22  Even when it is, public participation
claims remain live and can be adjudicated where the public  votes
for  incorporation.   In  Lake  and Peninsula  Borough  v.  Local
Boundary  Commission, for example, certain villages appealed  the
LBCs  approval of an incorporation petition subsequently approved
by voters in part on the grounds that the LBC provided inadequate
notice  during  the incorporation process.23  The superior  court
found  that notice was defective, a ruling we affirmed,  and  the
LBC was directed to remedy its notice violations.24  We thus find
that  Mullinss public participation claims are moot  and  do  not
fall within the public interest exception.
          Mullins specifically alleges that the LBC violated  the
Open  Meetings Act (OMA) by using information gathered  during  a
private  tour  of the proposed borough in making its  decision.25
She  argues that this claim is not moot, relying on our statement
in  Alaska  Community Colleges Federation of Teachers, Local  No.
2404  v. University of Alaska (ACCFT) that [t]he mootness bar  is
especially inappropriate in OMA cases.26  In ACCFT, the plaintiff
sought to void a governmental decision on the grounds that it had
been  reached  at  a private meeting.27  At the  superior  courts
direction, the decision-making body held a properly noticed  open
meeting at which it affirmed its previous decision.28  The  court
then dismissed the lawsuit without ruling on whether the original
meeting  violated  the OMA, finding that any violation  had  been
remedied.29  We reversed the dismissal and remanded the  case  to
the  superior court to determine whether a violation of  the  OMA
          occurred and if so, whether the subsequent meeting remedied the
violation.30
          Unlike  in  ACCFT, the LBCs approval decision  was  not
reaffirmed at a curative meeting, and it is not still in  effect.
Mullins,  unlike  the  plaintiff  in  ACCFT,  cannot  obtain  the
substantive relief she seeks because the LBCs decision  allegedly
made  in  violation  of  the OMA has been  voided  by  subsequent
events.  Where a decision is still in effect when an OMA claim is
brought,  the holding in ACCFT requires that a court  review  the
alleged OMA violation even if a curative meeting was held.  Where
a  decision is no longer in effect, as is the case here, a  court
should  conduct a standard mootness analysis to determine whether
to  address  the  OMA  claim.   In this  case,  for  the  reasons
described above, Mullinss public participation challenge to  LBCs
private  car tour as a violation of the OMA is moot and  we  will
not consider it.31
          2.   Alleged violations in the election
          Mullinss initial pleading in her administrative  appeal
of  the LBCs approval decision included allegations of wrongdoing
by  the  Division  of Elections in structuring the  incorporation
election.  Mullins later attempted to amend her pleading to add a
complaint  against the Director of Elections as a  defendant  and
request  changes to the upcoming election as relief, titling  her
amended  pleadings an Amended Notice of Appeal & Complaint.   The
superior  court never accepted Mullinss addition of  a  complaint
against   the   Director  of  Elections   its  final   Order   of
Clarification continued to list the LBC as the only party adverse
to  Mullins and noted that Mullinss appeal was not the  place  to
consider complaints.
          A  party may not unilaterally add a complaint against a
third  party  to a pending administrative appeal by amending  the
pleadings, as Mullins attempted to do in this case.  The superior
court  is  operating  under the authority of different  statutory
provisions when it acts as an appellate court32 and a trial court
of  general  jurisdiction33 and these  roles  are  not  generally
combined in the same lawsuit.34  The superior court, acting in its
capacity  as  an  intermediate  court  of  appeal  to  review  an
administrative  decision,35 properly declined to review  Mullinss
claims   against   the  Division  of  Elections   regarding   the
incorporation  election,  as  they were  unrelated  to  the  LBCs
decision that was under review.  Because the claims regarding the
incorporation  election  were not properly  before  the  superior
court,  they are not properly before us; the only claims properly
before  us  on appeal are those relating to the LBCs decision  to
approve the petition.
          If Mullins wished to sue the Division of Elections, she
should  have filed an independent lawsuit.  Now that the election
has  passed,  it  is highly likely that such a lawsuit  would  be
moot.36   A  superior court can no longer direct the Division  of
Elections   to   change  the  format  and   procedures   of   the
incorporation election, as requested by Mullins in  her  improper
amended pleadings.  Nor does Mullins seek to void the results  of
the  election.  The only relief available to Mullins for  alleged
errors in the election would be a declaratory judgment  there are
          no live issues.  Moreover, these alleged errors are unlikely to
evade  judicial review.  There is no reason to assume that courts
cannot  decide challenges related to an election before  election
day.37   Even where final judgment is not rendered prior  to  the
election,  election procedures can still be challenged by  anyone
opposing the outcome.38  In this case, Mullins does not oppose the
election   results  and  her  challenges  to  the   incorporation
election,  even if filed as an independent lawsuit, would  almost
certainly be moot.39
V.   CONCLUSION
          The   superior   court  correctly  dismissed   Mullinss
administrative  appeal as moot.  For the reasons detailed  above,
we AFFIRM.
_______________________________
     1    Walker v. Walker, 151 P.3d 444, 447 (Alaska 2007).

     2    Akpik v. State, Office of Mgmt. & Budget, 115 P.3d 532,
534 (Alaska 2005).

     3     The  LBCs  motion  was served by mail  on  Mullins  on
September 28, 2007.  Pursuant to Rule 77(c)(2)(ii) of the  Alaska
Rules of Civil Procedure, a party has fifteen days from the  date
of  service  to file an opposition to a motion to dismiss.   This
deadline is extended by three days if service is made by mail, as
it  was  in  this case.  Alaska R. Civ. P. 6(c).  Mullins  should
have  had eighteen days, until October 16, to respond to the LBCs
motion.   Instead, the superior court dismissed  her  lawsuit  on
October 5.

     4     Boggess  v.  State, 783 P.2d 1173, 1182  (Alaska  App.
1989)  (Even  [where]  discretion is  abused,  reversal  will  be
required only upon a showing of prejudice.).

     5     See  Johnson v. Johnson, 544 P.2d 65, 71 (Alaska 1975)
(holding  no due process violation where party denied opportunity
to  be heard on issue is later afforded opportunity to brief  and
argue merits through motion for reconsideration).

     6     See Brooks v. Brooks, Mem. Op. & J. No. 0993, 2000  WL
34545824,  at  *2  (Alaska  2000)  ([A]ny  procedural  error  was
harmless,  since our review of the merits of the superior  courts
written   decision  will  cure  any  prejudice  that  [appellant]
potentially suffered from flaws in the procedures that led to its
entry.)  (citing Sanuita v. Common Laborers & Hod Carriers  Union
of America, 402 P.2d 199, 202-03 (Alaska 1965)).

     7    Alaska R. Civ. P. 58.1(b), (c).

     8    While Mullins stated at the hearing that the clerk sent
her  the wrong dial-in code by e-mail, it appears that the  clerk
mailed and phoned Mullins with the correct code.

     9     See Akpik v. State, Office of Mgmt. & Budget, 115 P.3d
532, 534 (Alaska 2005).

     10    Kodiak Seafood Processors Assn v. State, 900 P.2d 1191,
1195 (Alaska 1995).

     11    Ulmer v. Alaska Rest. & Beverage Assn, 33 P.3d 773, 776
(Alaska  2001)  (quoting Gerstein v. Axtell, 960  P.2d  599,  601
(Alaska 1998)).

     12     These  facts  can  be  analogized  to  challenges  to
administrative  permitting decisions where  the  permits  are  no
longer   valid,  but  permit  opponents  still  seek  declaratory
judgment  that  the agency actions relating to the  permits  were
unlawful.  We have regularly found such appeals to be moot.  See,
e.g.,  Akpik,  115 P.3d at 534-35 (holding challenge  to  agencys
decision  not to accept comments on proposed exploratory drilling
project  and  to  approve project to be moot  where  project  was
completed  and  project  permits had  expired);  State,  Dept  of
Natural  Res.  v.  Greenpeace, Inc., 96 P.3d 1056,  1068  (Alaska
2004)  (holding  challenge to agencys decision to  lift  stay  on
issuance  of permit to be moot where permit had expired);  Kodiak
Seafood  Processors,  900  P.2d at  1196  (holding  challenge  to
agencys  decision to issue exploratory permit to  be  moot  where
permit  was  revoked before trial, but considering  merits  under
public interest exception).

     13    Ulmer, 33 P.3d at 777-78.

     14    Kodiak Seafood Processors, 900 P.2d at 1196.

     15     In  formulating  the  test for  applying  the  public
interest  exception, we have referred to disputed  issues  rather
than  claims.  See id.; see also Akpik, 115 P.3d at  535  (noting
that  a court may address certain issues if they fall within  the
public interest exception and proceeding to analyze issues raised
by  appellant  underlying  his  mooted  challenge  to  an  agency
decision) (emphasis added).

     16    3 Alaska Administrative Code 110.650 (2009).

     17    See Ulmer, 33 P.3d at 778 (indicating that proper scope
of  inquiry for first prong of public interest exception test  in
challenge  to initiative petition summary language is limited  to
whether specific language of initiative and summary is likely  to
be repeated).

     18    AS 29.05.100(b).

     19     See,  e.g., Petitioners for Incorporation of  City  &
Borough  of Yakutat v. Local Boundary Commn, 900 P.2d 721 (Alaska
1995)  (reviewing  alteration of incorporation  petition  by  the
LBC);  Keane v. Local Boundary Commn, 893 P.2d 1239 (Alaska 1995)
(reviewing approval of incorporation petition by the LBC); Lake &
Peninsula Borough v. Local Boundary Commn, 885 P.2d 1059  (Alaska
1994)  (reviewing approval of incorporation petition by the LBC);
Valleys  Borough Support Comm. v. Local Boundary Commn, 863  P.2d
232  (Alaska  1993) (reviewing the LBCs decision  to  select  one
incorporation petition over another).

     20      Indeed,  the  ombudsman  found  that  the  LBC   has
demonstrated  a  pattern  of  failing  to  adequately  engage  in
consultation with Alaska Natives when making decisions.

     21    Copeland v. Ballard, 210 P.3d 1197, 1202 (Alaska 2009).

     22     See  Ulmer,  33  P.3d at 778 (Although  such  appeals
typically must be decided by election day to avoid becoming moot,
there is no reason to believe that we cannot resolve such appeals
in  a  timely  fashion.  Indeed, we have frequently  done  that.)
(internal citations omitted); OCallaghan v. State, 920 P.2d 1387,
1388-89  (Alaska 1996) (holding appeal of election  result  moot,
and  declining  to  apply public interest  exception  because  if
issues  were  repeated,  a  timely election  challenge  would  be
possible).

     23    885 P.2d 1059, 1060-61 (Alaska 1994).

     24    Id. at 1062-63, 1067.

     25     The  Open Meetings Act requires [a]ll meetings  of  a
governmental body of a public entity of the state [to be] open to
the  public with limited exceptions not applicable in this  case.
AS 44.62.310(a).  Meeting is defined as a gathering of members of
a  governmental  body  when  .  .  .  a  matter  upon  which  the
governmental  body  is  empowered to act  is  considered  by  the
members  collectively.  AS 44.62.310(h)(2).  An  actual  decision
need not be reached at the meeting for the statute to apply.  See
Brookwood   Area   Homeowners  Assn,  Inc.  v.  Municipality   of
Anchorage,  702 P.2d 1317, 1323 (Alaska 1985).  An OMA  violation
may be cured by holding another meeting in compliance with notice
and   other  requirements  of  this  section  and  conducting   a
substantial and public reconsideration of the matters  considered
at the original meeting.  AS 44.62.310(f).

     26    677 P.2d 886, 889 (Alaska 1984).

     27    Id. at 888.

     28    Id.

     29    Id.

     30    Id. at 892-93.

     31    Mullins also appeals the superior courts denial of her
motion  for  a preliminary injunction staying the election.   But
the  preliminary  injunction motion  was  based  on  the  alleged
wrongdoing of the LBC, and these claims are moot for the  reasons
discussed above.

     32    See AS 22.10.020(d).

     33    See AS 22.10.020(a).

     34    It may in some instances be appropriate for a superior
court to consolidate a separately filed administrative appeal and
lawsuit concerning the same set of facts.

     35     See Alaska R. App. P. 601 612 (establishing rules for
superior court acting as an intermediate appellate court).

     36     See, e.g., Peloza v. Freas, 871 P.2d 687, 688 (Alaska
1994)   (holding  pre-election  challenge  to  refusal  to  place
candidate  on ballot to be mooted by election);  Falke v.  State,
717  P.2d  369,  371  (Alaska 1986) (holding pre-election  action
seeking  to remove candidate from ballot to be mooted by election
in  which candidate lost); see also Grady v. State, Mem. Op. & J.
No.  1110, 2002 WL 31529075, at *1 (Alaska Nov.13, 2002) (holding
pre-election  action  seeking  ruling  that  candidate  forfeited
nomination to be mooted by election in which candidate lost).

     37    See supra note 22.

     38     See  AS  15.20.540 (establishing  election  challenge
procedures  whereby  ten  qualified  voters  can  challenge   the
approval  or  rejection  of any question or  proposition  on  the
grounds  of  malconduct, fraud, or corruption on the part  of  an
election  official  or any corrupt practices as  defined  by  law
sufficient to change the results of the election.).

     39     Mullins also challenges the constitutionality of  the
Pogo  PILOT  agreement that was placed on the  ballot.   We  have
established  a  general  rule . .  .  that  a  court  should  not
determine the constitutionality of an initiative unless and until
it  is enacted.  State v. Trust the People, 113 P.3d 613, 614 n.1
(Alaska 2005); see also Kodiak Island Borough v. Mahoney, 71 P.3d
896,   898   (Alaska   2003)  (Courts   will   not   review   the
constitutionality  of the substantive initiative  proposal  until
and  unless  the voters pass the ordinance.); Brooks  v.  Wright,
971 P.2d 1025, 1027 (Alaska 1999) ([g]eneral contentions that the
provisions  of an initiative are unconstitutional are justiciable
only  after  the  initiative has been enacted by  the  electorate
(quoting  Boucher  v. Engstrom, 528 P.2d 456,  460  n.13  (Alaska
1974))).   Pursuant to this rule, a court should not  review  the
constitutionality  of the defeated Pogo PILOT agreement  even  if
raised in an independent lawsuit.

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