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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sitkans for Responsible Government v. City & Borough of Sitka (4/20/2012) sp-6667

Sitkans for Responsible Government v. City & Borough of Sitka (4/20/2012) sp-6667

        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 



SITKANS FOR RESPONSIBLE                         )
GOVERNMENT, MICHAEL                             )       Supreme Court No. S-13394
LITMAN, and JEFFERY FARVOUR,			)
                                                )       Superior Court No. 1SI-08-00130 CI 
                        Appellants,             ) 
                                                )      O P I N I O N 
        v.                                      ) 
                                                )      No. 6667 - April 20, 2012 
CITY & BOROUGH OF SITKA and                     ) 
COLLEEN PELLETT, Municipal                      )
Clerk,                                          )
                                                )
                        Appellees.              )
                                                )


                Appeal from the Superior Court of the State of Alaska, First 

                Judicial District, Sitka, David V. George, Judge. 



                Appearances:  Joseph W. Geldhof, Law Office of Joseph W. 

                Geldhof,      Juneau,    for  Appellants.      Theresa      Hillhouse, 

                Municipal Attorney, Sitka, for Appellee City & Borough of 

                Sitka,   Michael     Gatti  and   Leila   R.  Kimbrell,    Wohlforth, 

                Johnson,     Brecht,   Cartledge    &   Brooking,    Anchorage,      for 

                Appellee Colleen Pellett, Municipal Clerk. 



                Before:      Carpeneti,     Chief   Justice,   Fabe,   Winfree,     and 

                Stowers, Justices. [Christen, Justice, not participating.] 



                CARPENETI, Chief Justice. 



I.       INTRODUCTION 



                Citizens sought a ballot initiative eliminating the special regulations that 


----------------------- Page 2-----------------------

govern   real   property   transactions   in   a   local   economic   development   area. After   the 



municipal clerk twice denied the petition for a ballot initiative, the sponsors sued for an 



order placing the initiative on the ballot.    Finding the petition to be both contrary to 



existing law and misleading, the superior court upheld the municipal clerk's denial.  The 



sponsors appealed.  Because we conclude that the petition is neither contrary to existing 



law nor misleading, we reverse. 



II.     FACTS AND PROCEEDINGS 



       A.      Facts 



               1.      The petition 



              On June 25, 2008, Jeffery Farvour filed a petition for a ballot initiative with 

the    municipal    clerk  of   the  City   and   Borough     of   Sitka.1   The     initiative 



       1      The petition states: 



                           CITY AND BOROUGH OF SITKA
 

                             ORDINANCE NO. 2008-_____
 



   AN ORDINANCE OF THE CITY AND BOROUGH OF SITKA, ALASKA
 



 REPEALING AND/OR REENACTING PORTIONS OF TITLE 2 & TITLE 18
 

 OF THE SITKA GENERAL CODE TO REQUIRE THAT THE SALE, LEASE
 

      OR DISPOSALS OF REAL PROPERTY WITHIN SAWMILL COVE
 

  INDUSTRIAL PARK BE CONSISTENT WITH AND CONFORM TO THE
 

      PROPERTY DISPOSAL ORDINANCES CONTAINED IN TITLE 18,
 

                 INCLUDING A PUBLIC VOTE, IF NECESSARY.
 



1. CLASSIFICATION. This ordinance is of a permanent nature. Section 3 is intended 

to become a part of the Sitka General Code upon election certification. 



2. PURPOSE. The purpose of this ordinance is to require that the administration and 

disposals of tidelands, submerged land, and other real property in the Sawmill Cove 

Industrial Park take place and is governed by Title 18 of the Sitka General Code and, as 

necessary that disposals of property within the Sawmill Cove Industrial Park are subject 

to a public vote. 

                                                                               (continued...) 



                                             -2-                                        6667
 


----------------------- Page 3-----------------------

would change how Sitka manages Sawmill Cove Industrial Park (Sawmill Cove). 

                Sawmill Cove is the former site of the Alaska Pulp Corporation mill.2            Sitka 



acquired the site in 2000 to manage economic development.3               According to the purpose 



statement of the municipal acquisition: 



                Unlike other property owned by the municipality, [Sawmill 

                Cove]   was   acquired   .   .   .   for   economic   development   and 

                disposal.   In general, the property will not be used for public 

                improvements.       It will be leased or sold to individuals and 

                corporations to develop business opportunities and provide 



        1	      (...continued) 



3. ENACTMENT. NOW, THEREFORE, BE IT ENACTED that Sitka General Code 

        Section 2.38.080 (a) (7) is repealed and reenacted to read as follows: 



        7.	     All land transactions shall be governed in accordance with Title 18 

                of Sitka General Code. 



        BE IT FURTHER ENACTED that Sitka General Code Section 2.38.090 

        (Ord. 00-1568  4 (part), 2000.), pertaining to leasing powers is repealed. 



        BE     IT   FURTHER          ENACTED         that   Sitka   General    Code    Section 

        18.12.010(B) is repealed and reenacted to read as follows: 



        B.  Upon     sale  or  disposal   of  real  property    valued   over   five  hundred 

        thousand dollars, or upon lease of real property, including tidelands, of a 

        value of more than seven hundred fifty thousand dollars, the ordinance 

        authorizing the sale, lease, or disposition shall provide that the ordinance 

        be   ratified   by   a   majority   of   the   qualified   voters   voting   at   a   general   or 

        special election. Any such sale, lease, or disposition shall be revocable 

        pending the outcome of the election. 



4.  EFFECTIVE           DATE.	  This     ordinance     shall  become     effective   immediately     on 

        certification by the Assembly if the results of the election show that a majority of 

        the qualified voters approved enactment. 



        2       See Sitka General Code (SGC) 02.38.080(A)(5) (2009) (noting conveyance 



agreement with Alaska Pulp Corporation). 



        3       Sitka Ordinance (SO) 00-1568 (2000). 



                                                  -3-	                                           6667
 


----------------------- Page 4-----------------------

                 jobs.  For that reason, it is important to enact a procedure for 

                 property management and disposal at the site which more 

                 closely corresponds to private sector disposals.[4] 



Accordingly, Sitka manages the site through a Board of Directors (the Board), whose 



extensive control over the site includes the power to operate, develop, budget for, and 



                             5                                                                     6 

regulate Sawmill Cove.         The Board may enter into contracts on behalf of Sitka,  and the 

Board may dispose of Sawmill Cove property.7 



                 The Board's power to dispose of Sawmill Cove property is broader than the 



city's power to dispose of other property.               In order to sell, lease, buy,   or   trade real 



property in Sawmill Cove, the Board needs only the support of the Sitka assembly, in the 

form   of   a   resolution.8  Short-term   leases   require   only   the   municipal   administrator's 



approval.9    In contrast, Sitka is more limited regarding disposal of its other, non-Sawmill 



Cove properties.  Before the assembly can sell other real property valued over $500,000 



or enter into a lease valued over $750,000, the assembly must pass an ordinance and 

Sitka voters must ratify the action in an election.10 



                 The petition giving rise to this case would eliminate the Board's broad 



authority to transact real property in Sawmill Cove, and would instead require those 



transactions   to   comply   with   the   normal   requirements   for   any   Sitka   municipal   land 



        4        Id . 



        5        SGC 02.38.080(A). 



        6        Id . at (A)(9). 



        7        Id . at (A)(7). 



        8        Id . 



        9        Id . at (A)(7)(a). 



         10      SGC 18.12.010(B). 



                                                     -4-                                               6667
 


----------------------- Page 5-----------------------

transaction.      To   do   this,   the   petition   revokes   the   language   in   Sitka   General   Code 



02.38.080(A)(7), which contains the special procedures for transacting Sawmill Cove 



property.    Instead, that section would read: "All land transactions shall be governed in 



accordance      with   Title  18   of  Sitka   General    Code."    Title   18   contains   the   normal 

procedures for Sitka's municipal land transactions.11              That means that Sawmill Cove 



would be governed by the normal requirement that voters ratify any high-value land 

transaction - sales over $500,000 or leases over $750,000.12                 The change to Title 18 



would   also   eliminate   the   Board's   ability   to   execute   short-term   leases   with   only   the 

municipal administrator's approval; instead, assembly approval would be required.13 



Finally, the change would impact all land transactions - large or small, lease 14 or sale15 



        11      See SGC 18.12.010. 



        12      Id . at (B). 



        13      See    supra    note   1.  The     third  section   of   the  ballot  initiative   (titled 



"Enactment") proposed eliminating the current SGC 02.38.080(A)(7)(a), which only 

requires administrative approval for short-term leases in Sawmill Cove, and replacing 

it with SGC 18.12.010, which would require authorization by ordinance of any lease, 

with certain minor exceptions. 



        14      See   supra   note   1.   The   third   section   of   the   ballot   initiative   proposed 



replacing the current SGC 02.38.080(A)(7), the section of the ordinance that allows the 

Board to administer and dispose of property (sometimes subject to assembly approval) 

with  the   procedures in SGC 18.12.010, which grants no authority to the Board and 

requires an ordinance for most transactions. 



        15      See supra note 1.  The petition makes two other minor changes to the Sitka 



code, each removing language currently stating that Sawmill Cove is not subject to Title 

18.  The petition would repeal SGC 02.38.090 (clarifying that Sawmill Cove leases are 

pursuant to Title 2, chapter 38) and amend SGC 18.12.010(B) (currently exempting 

Sawmill Cove property from Title 18). 



                                                   -5-                                             6667
 


----------------------- Page 6-----------------------

-   by   removing   the   Board's   authority   to   initiate   such   actions   and   instead   requiring 



municipal action. 



                 2.      Sitka's denial of the petition 



                 Jeffery Farvour's June 25, 2008 petition identified Farvour and Michael 



Litman      (the  sponsors)     as  contacts    for  the  petition,   and   sought    approval    to  begin 

collecting signatures to qualify the petition for the October 7, 2008 election.16                     Sitka 



forwarded the petition to its outside counsel, which responded with many reasons to 

deny the petition.       Although it is unclear how strong these reasons are,17 the outside 



counsel found that the petition (1) is confusing and misleading; (2) appropriates a public 



asset; (3) relates to an administrative matter; (4) is inconsistent with existing code; (5) 



is inconsistent with the local planning process; (6) immediately affects public health, 



safety,   and   welfare;   (7)   does   not   provide   an   effective   date;   and   (8)   conflicts   with   a 



requirement for Department of Justice pre-clearance.                  Accordingly, Sitka Municipal 



Clerk Colleen Pellett denied the petition on July 10, 2008.                 Although her denial notice 



was cursory, she attached the more extensive memo from outside counsel. 



                 On   July   22,   2008,   Litman   submitted   an   amended   petition   on   behalf   of 



Sitkans for Responsible Government.  A cover letter discussed the concerns listed in the 

July   10   denial,   but   the   petition   corrected   only   two   minor   problems.18     Sitka   again 



        16       To qualify for the Sitka ballot, an initiative must be signed by at least as 



many people as constitute 20% of the total number of electors voting at the last regular 

annual election.      Home Rule Charter of City and Borough of Sitka Art. 6.01 (2009). 



        17       For    example,     the   paragraph     alleging    that   the   petition   concerns     an 



administrative matter contains no analysis.  Several other arguments raised in the memo 

are also conclusory. 



        18       First, the new version stated that Sawmill Cove requirements would "be 



consistent with and conform to" Title 18, whereas the original petition had only stated 

                                                                                           (continued...) 



                                                    -6-                                               6667
 


----------------------- Page 7-----------------------

forwarded the petition to its outside counsel, which responded with a memorandum 



highlighting essentially the same issues as it had in the first petition.  The municipal clerk 



denied this second petition on August 5, 2008, again including a memo from outside 



counsel. 



        B.      Proceedings 

                On August 8, 2008, the sponsors filed a complaint in superior court.19  They 



sought an injunction directing the clerk to certify the initiative for inclusion in the regular 



municipal   election   and   declaratory   relief   confirming   the   propriety   of   the   initiative. 



Superior Court Judge David V. George granted a preliminary injunction against Sitka 



and ordered the clerk to provide the sponsors with signature booklets so that they could 



gather signatures, which was done.           The superior court then held an expedited hearing 



on August 19 and, in an order issued August 27, the court denied the sponsors' request 



for relief. 



                In its subsequent written decision, the superior court denied the sponsors' 



motion for summary judgment and dismissed the sponsors' complaint.                      Based on two 



independent grounds, the superior court upheld the Sitka clerk's denial of the petition for 



a ballot initiative: the court held (1) the initiative is contrary to law and unenforceable, 



        18      (...continued) 



"conform      to."   Second,     the  new    petition   corrected    a  typographical     error  so   that 

18.12.010(B) would be repealed, not 18.38.080(B), which had been erroneously listed 

in the original petition. 



        19      Sitkans for Responsible Government was the lead plaintiff, but the superior 



court eventually dismissed the group for lack of standing. 



                                                   -7-                                             6667
 


----------------------- Page 8-----------------------

and (2) the initiative is misleading and confusing.20           The sponsors now appeal both of 



these holdings.     Sitka, in turn, contends the case is moot. 



III.    STANDARD OF REVIEW 



                We review a superior court's summary judgment decision de novo, drawing 



all inferences in favor of, and viewing the facts in the record in the light most favorable 

to, the non-moving party.21       Mootness22   and the legality of a ballot initiative23 are both 



legal questions to which we also apply de novo review, adopting the rule of law that is 

most persuasive in light of precedent, reason, and policy.24 



                When reviewing initiatives, we construe them broadly so as to preserve 

them whenever possible.25        We apply a deferential standard of review for challenges to 



        20      The   court   found   unsupported   a   third   reason   -   that   the   initiative   was 



illegally used to make an appropriation.   And the court did not reach a fourth reason - 

that the initiative improperly concerns administrative action. We note that courts should 

rule on all the reasons given for rejecting citizen petitions.             Piecemeal litigation and 

piecemeal appeals can delay and potentially thwart the ability of the people to initiate 

laws or to decide not to do so.          Ruling on all the reasons given for rejecting citizen 

petitions will prevent citizens from having to return to the courthouse multiple times to 

secure a spot on the ballot for their initiatives. 



        21      Pebble Ltd. P'ship ex rel. Pebble Mines Corp. v. Parnell , 215 P.3d 1064, 



1072   (Alaska   2009)   (citing Anchorage   Citizens   for   Taxi   Reform   v.   Municipality   of 

Anchorage , 151 P.3d 418, 422 (Alaska 2006)). 



        22      Ulmer v. Alaska Rest. & Beverage Ass'n, 33 P.3d 773, 776 (Alaska 2001). 



        23      Pebble Ltd. , 215 P.3d at 1072. 



        24      Id .; Jacob v. State, Dep't of Health & Soc. Servs. , 177 P.3d 1181, 1184 



(Alaska 2008). 



        25      Pebble Ltd. , 215 P.3d at 1073 (citing Anchorage Citizens for Taxi Reform , 



151 P.3d at 422). 



                                                  -8-                                             6667
 


----------------------- Page 9-----------------------

the adequacy of a petition summary and "[t]hose attacking the summary bear the burden 

'to demonstrate that it is biased or misleading.' "26 



IV.     DISCUSSION 



        A.      The Issues On Appeal Are Not Moot. 



                Sitka contends this appeal is moot because the October 7, 2008 election has 



passed.     Assuming the sponsors' request to be included on a ballot refers only to the 



October 2008 election, Sitka points out certification for a past election is impossible and 



the case is therefore moot. Further, regarding the sponsors' request for declaratory relief, 



Sitka asserts any relief upholding the petition's language would constitute an improper 



advisory opinion for a hypothetical future petition.            Again, this assumes the sponsors 



would have to file a new petition for an upcoming election.   However, because Sitka has 



not actually demonstrated the sponsors would need to file a new petition, and because 



this case is rich with adversity, we do not find it to be moot. 



                We generally decline to address a moot claim - that is, a claim that "has 

lost its character as a present, live controversy."27       A claim is moot if "the party bringing 



the   action   would    not   be   entitled   to   any   relief   even   if   it   prevails."28 By   contrast, 



justiciable controversies are marked by adversity between the parties:                There must be a 



"definite   and   concrete"   controversy   touching   the   parties'   legal   relations,   not   simply 

"hypothetical   or   abstract"   disputes.29    "Mootness   is   particularly   important   in   a   case 



        26      Id . (citing Alaskans for Efficient Gov't, Inc. v. State , 52 P.3d 732, 735 



(Alaska 2002)). 



        27      Kodiak Seafood Processors Ass'n v. State , 900 P.2d 1191, 1195 (Alaska 



 1995); Ulmer, 33 P.3d at 776. 



        28       Ulmer, 33 P.3d at 776 (internal quotation marks omitted). 



        29      Kodiak Seafood Processors Ass'n , 900 P.2d at 1195; see also Ulmer, 33 



                                                                                        (continued...) 



                                                   -9-                                            6667
 


----------------------- Page 10-----------------------

seeking a declaratory judgment because there is an added risk that the party is seeking 

an advisory opinion,"30 which we seek to avoid.31 



                 Sitka relies on  Ulmer v. Alaska Restaurant & Beverage Ass'n,32 which 



concerned mootness in the context of a ballot initiative.                There, the State appealed the 



superior court's decision that the lieutenant governor's petition summary was legally 

defective.33    But the sponsors of the initiative had dropped out of the litigation,34 and we 



were   not   convinced   the   sponsors   could   legally   reinvigorate   the   petition   if   it   were 

upheld.35    We said that such "speculation about what other parties may choose to do in 



the future is exactly the sort of indeterminacy the mootness doctrine was developed to 

avoid."36 



                 Unlike Ulmer, the litigants in this case remain actually adverse: The parties 



that   filed   the   petition   and   litigated   the   case   below   remain   actively   engaged   in   the 



litigation.  More importantly, Sitka has pointed to no authority barring this petition from 



        29       (...continued) 



P.3d at 776 (stressing the adversity requirement). 



        30       Kodiak Seafood Processors Ass'n , 900 P.2d at 1195. 



        31       Earth    Movers     of  Fairbanks,     Inc.   v.  State,  Dep't    of  Transp.    &   Pub. 



Facilities , 824 P.2d 715, 718 (Alaska 1992). 



        32       33 P.3d 773 (Alaska 2001). 



        33       Id . at 774. 



        34       Id . at 776-77. 



        35       Id .  In fact there was no reason to believe the sponsors would even try to 



do so, since they were not taking part in the litigation.  Id. 



        36       Id . at 777. 



                                                    -10-                                              6667
 


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being placed on an upcoming  ballot.37              This is of particular importance because the 



sponsors' complaint does not request inclusion in any particular election.  Accordingly, 



the injunctive relief the sponsors request is available.  And because their initiative could 



be placed on an upcoming ballot, the sponsors' request for declaratory relief upholding 



the wording of their petition is appropriate - that is, our decision will affect the actual 



petition in question and will not result in an advisory opinion for a hypothetical future 



petition. Accordingly there is a live, definite, and concrete controversy, actively litigated 



between      adverse    parties,   touching     upon    the  parties'   legal   rights,   and   concerning 



attainable   relief.    The   case   is   therefore    not   moot.   We   turn   to   the   merits   of   that 



controversy. 



        B.	      It Was Error To Hold That The Petition Is Contrary To Law And 

                 Unenforceable. 



                 Of   the   two   grounds   the   superior   court   gave   on   which   to   uphold      the 



municipal clerk's denial of the petition, the first is that the petition is contrary to existing 



law.  The superior court found Sitka's existing procedures for land transactions conflict 



with the Sitka Charter, and therefore the petition - requiring Sitka's general procedures 



to be used in Sawmill Cove - also conflicts with the Charter.  Specifically, the conflict 



is between Title 18's requirement that high-value land transactions be ratified by voters 

(i.e., through a referendum),38 and article 6, section 1 of the Sitka Home Rule Charter, 



which  states Sitka cannot have a referendum without advance support (signatures) from 



20% of the number of people voting in the last election. 



                 The   sponsors   first   argue   that   this   holding   is   a   violation   of   their   state 



constitutional   right to   petition,   and   second   that   their   petition   does   not   add   any   new 



        37       See SGC 02.40.040 (2008) (providing time limits for gathering signatures 



and rejecting petitions, but not for placing petitions on the ballot). 



        38	      SGC 18.12.010(B) (2008). 



                                                    -11-	                                                6667 


----------------------- Page 12-----------------------

procedures, let alone constitute a referendum in violation of the Charter.                 Because we 



agree with their latter claim, we cannot uphold the superior court's ruling. 



                1.	     The   superior   court's   ruling   did   not   implicate   the   sponsors' 

                        constitutional right to petition. 



                Article XI of the Alaska   Constitution provides a right of initiative and 



referendum   regarding   state   law,   whereas   AS   29.26.100   reserves   to   the   residents   of 

municipalities the right of local initiative and referendum.39             A city clerk may reject a 



petition if it would not be enforceable as a matter of law.40	          In  Whitson v. Anchorage,41 



we upheld a clerk's denial and found unenforceable a municipal petition that conflicted 

with   a   higher   law   -   there   a   state   statute.42 However,   we   liberally   construe   "the 



constitutional and statutory provisions pertaining to the use of initiatives . . . so that the 

people are permitted to vote and express their will on the proposed legislation."43 



                The sponsors' argument that the superior court's order violated the Alaska 



Constitution is unpersuasive because the constitutional provisions cited by the sponsors 



pertain to state initiatives and referenda, while municipal initiatives and referenda are 

instead governed by state statutes.44       We must look to those statutes, which allow a clerk 



        39      Carmony v. McKechnie, 217 P.3d 818, 820 (Alaska 2009); Griswold v. City 



of Homer, 186 P.3d 558, 563 (Alaska 2008). 



        40	     AS 29.26.110(a)(4). 



        41	     608 P.2d 759 (Alaska 1980). 



        42      Id. at 761-62. 



        43      Carmony, 217 P.3d at 820 (internal quotations and bracketing omitted); see 



also Citizens for Implementing Med. Marijuana v. Municipality of Anchorage,129 P.3d 

898, 901 (Alaska 2006). 



        44      See Carmony, 217 P.3d at 820; Med. Marijuana ,129 P.3d at 901. 



                                                  -12-	                                            6667
 


----------------------- Page 13-----------------------

to deny a petition that would be unenforceable because it conflicts with existing law, to 

resolve this first issue.45 



                2.      It was error to hold that the initiative was contrary to law. 



                The superior court held the initiative to be contrary to law on the theory that 



the general Sitka municipal land disposal ordinance - in requiring a referendum for 



high-value disposals - violates the Sitka Charter.             The superior court held that the 



initiative, in requiring Sawmill Cove land disposal transactions to come into conformity 



with the general ordinance, would by definition also violate the Charter.             We conclude 



that if there is a problem with the existing ordinance, it cannot be the basis for finding 



an initiative to be contrary to law. 



                The specific problem found by the court was that, while it was an initiative 



in form, the sponsors' petition "would create a blanket or compulsory referendum for 



certain future actions of the Assembly. Specifically, the initiative mandates a referendum 



vote for all future assembly actions [in high-value Sawmill Cove transactions]."  It would 



do so, the court found, because under current Sitka General Code 18.12.010, large-scale 



disposals of municipal land must be ratified by the voters.   The court characterized such 



ratification as a referendum.   In attempting to bring large-scale municipal land disposals 



in   Sawmill   Cove   under   the   same   rules   and   procedures   governing   other   large-scale 



municipal land disposals, the initiative would subject them to the requirement of voter 



approval.  Thus, the court found, the initiative "dispenses with the Charter requirement 



that a proposed referendum be supported by a certain number of elector signatures before 



being put to the voters" and "is in direct violation of referendum requirements under City 



Charter and implementing ordinance and is therefore unenforceable as a matter of law." 



                As the sponsors persuasively argue, their initiative would do no more than 



        45      AS 29.26.100(a);  Whitson, 608 P.2d at 761-62. 



                                                 -13-                                             6667 


----------------------- Page 14-----------------------

bring disposals of municipal land in the Sawmill Cove area into conformity with Sitka 



ordinances pertaining to disposal of municipal land generally.   During the course of the 



proceedings below and in this court, neither party argued Sitka's general ordinances 



pertaining to disposal of municipal land violate the Charter.             Sitka's argument that the 



initiative would require a referendum for transactions of a certain size (and that requiring 



a referendum without previously obtaining the signatures of a certain number of voters 



would violate the Sitka Charter) completely ignores that Sitka law currently requires 



exactly that: a referendum for transactions of a certain size.           If Sitka believes there is a 



conflict   between   SGC   18.20.010   and   the   Sitka   Charter   -   an   issue   never   explicitly 



decided by any court, much less raised by any party in this litigation, and an issue Sitka 



conceded at oral argument is not before this court - the city should amend either its 



Charter or the ordinance.       It may not be heard to argue that a citizen initiative, which 



merely attempts to extend to all transactions a Sitka law currently applicable only to 



some transactions, is contrary to law because current law violates the Sitka Charter. 



                Accordingly, we reverse the superior court's ruling that the initiative in this 



case was in direct violation of referendum requirements and therefore unenforceable as 



a matter of law. 



        C.	     It Was Error To Hold That The Petition's Language Is Confusing And 

                Misleading. 



                As a second independent basis for upholding the clerk's denial, the superior 



court found the petition confusing and misleading. Specifically, the superior court found 



the petition confusing and misleading because it does not inform voters that it would 



result in automatic referenda contrary to the Sitka Charter.   As explained above, we do 



not agree that the petition would conflict with the Charter.  Moreover, we conclude that 



the petition is neither confusing nor misleading. 



                                                  -14-	                                           6667
 


----------------------- Page 15-----------------------

                We previously considered the legal sufficiency of proposed ordinances in 



Faipeas   v.  Municipality   of   Anchorage46       and   in Citizens   for   Implementing   Medical 



Marijuana v. Municipality of Anchorage ,47 both of which regarded proposed ordinances 



in Anchorage.48      In Faipeas , we based our analysis on an Anchorage Municipal Code 



requirement that a petition "describe the ordinance or resolution sought by the petition 



. . . ."49 We concluded that "[a] description which is untruthful, misleading, or which is 



not complete enough to convey basic information as to what the ordinance does, cannot 



be regarded as a legally adequate or sufficient description within the meaning of the 



ordinance.     The   word   'describe'   in   a   legal   context   carries   the   requirement   that   the 



required description must be fair and accurate."50           Further, we stated that "[t]he public 



interest in informed lawmaking requires that referendum and initiative petitions meet 



minimum   standards   of   accuracy   and   fairness."51       We   then   rejected   the   referendum 



petition because the title of the petition was "partisan and potentially prejudicial."52 



        46      860 P.2d 1214 (Alaska 1993). 



        47      129 P.3d 898 (Alaska 2006). 



        48      Faipeas , 860 P.2d at 1215; Med. Marijuana , 129 P.3d at 899. 



        49      Faipeas , 860 P.2d   at 1219 (emphasis added) (internal quotation marks 



omitted); Med. Marijuana , 129 P.3d at 901. 



        50      Faipeas , 860 P.2d at 1219; see also  Med. Marijuana , 129   P.3d at 901 



(reiterating Faipeas holding). 



        51      Faipeas , 860 P.2d at 1221. 



        52      Faipeas , 860 P.2d at 1217, 1221.   The referendum petition in Faipeas was 



titled:   "REFERENDUM            PETITION       TO   REPEAL   A      'SPECIAL   HOMOSEXUAL 

ORDINANCE.' "  The contents of the petition were then laid out in much smaller print. 

Id. at 1217.  We concluded that "[w]hile opponents of the ordinance regard it as giving 

                                                                                        (continued...) 



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               In Medical Marijuana , we considered the legal sufficiency of a proposed 



ordinance in Anchorage.53      We again noted that the Anchorage Municipal Code required 



a petition to "describe the ordinance or resolution sought by the petition"54 and stated that 



our "main concern should be that all matters (legislative enactments, initiative petitions 



and proposed resolutions) should be presented clearly and honestly to the people of 



Alaska."55    We  then   identified   the  various  descriptive  shortcomings  and   "puzzling 



grammatical deficiencies" of the proposed ordinance, noting that: the petition did not 



explain    the  context   and  purpose    of  the  proposed    initiative,  the  petition  title  was 



"misleading as to the proposition's scope," and the petition included multiple confusing 



        52     (...continued) 



special rights to homosexuals, proponents view it as merely adding sexual orientation to 

the list of other important personal characteristics and choices such as gender, religion, 

race, and marital status, which are protected from discrimination in public employment." 

Id. 



        53     Med. Marijuana , 129 P.3d at 901. 



        54     Id.   The   Anchorage   Municipal   Code   no      longer   requires   a   petition   to 



"describe the ordinance or resolution sought by the petition."  See Faipeas, 860 P.2d at 

1219 (internal quotation marks omitted).          Anchorage Municipal Code 2.50.020 now 

requires a petition "set out verbatim the ordinance or resolution sought to be enacted or 

repealed by the petition" and "meet constitutional, charter and other legal requirements 

or restrictions."  AMC 2.50.020(B)(3)(a), (c). 



        55     Med. Marijuana , 129 P.3d at 901 (emphasis in original). 



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----------------------- Page 17-----------------------

"whereas" clauses.56       On this basis we affirmed the superior court's grant of summary 



judgment on behalf of the city. 57 



                 Unlike     the  then-existing     Anchorage      Municipal     Code    in Faipeas      and 



Medical Marijuana , section 02.40.040 of the Sitka General Code provides that petitions 



shall "set out fully the ordinance or resolution sought by the petition."58 Notably, the 



word     "describe"     does    not  appear    in  subsection     (B).59   Even     assuming      that  the 



         56      Id. at 901-05.  The petition at issue in Medical Marijuana was entitled "An 



Initiative Allowing Those Items Used with Marijuana Legal as Medicine or a Right to 

Privacy."  Id. at 902.     The text of the proposed initiative read: 



                 Shall Article II of the Municipal Charter be amended to add 

                 the following section: 



                         (14)  The   right   to   buy,   sell,   or   possess   those   items 

                         which   could   be   used   to   consume,   grow   or   process 

                         marijuana   for   medicine,   or   as   is   in   accord   with   the 

                         right to privacy protected by Article I, Section 22 of 

                         the Alaska Constitution. 



We noted in Medical Marijuana that the petition   as a   whole could be read either to 

legalize marijuana paraphernalia in specific situations or to legalize possession and sale 

of marijuana paraphernalia in "virtually all situations," even if not intended to be used 

in accordance with Alaska's medical marijuana statute or the right to privacy. Id. at 904. 



         57      Id. at 905. 



         58      SGC 02.40.040(B)(2). 



        59       See SGC 02.40.040(B).  The superior court concluded without discussion 



that "[w]hile the Sitka Code does not contain the same requisite initiative description 

requirement as did the Anchorage code in Faipeas , the standards employed by the court 

are appropriately applied to the initiative language here."               We find that it is not clear 

from the terms of the Sitka General Code whether Sitka intended to require a descriptive 

element similar to the then-existing Anchorage Municipal Code, and we note that neither 

Faipeas nor Medical Marijuana resolve the question of how much context, if any, is 

                                                                                           (continued...) 



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----------------------- Page 18-----------------------

requirement to "set out fully the ordinance or resolution" contains the same descriptive 



requirement as the then-existing Anchorage Municipal Code in Faipeas and Medical 



Marijuana , the sponsors' petition in the present case is neither confusing nor misleading. 



The petition first identifies its purpose: 



                 [T]o require that the administration and disposal of tidelands, 

                 submerged land, and other real property in the Sawmill Cove 

                 Industrial Park take place and is governed by Title 18 of the 

                 Sitka    General    Code     and,   as  necessary     that  disposals    of 

                 property within the Sawmill Cove Industrial Park are subject 

                 to a public vote. 



The petition then states that "Sitka General Code Section 2.38.080(a)(7) is repealed and 



reenacted [such that all] land transactions shall be governed in accordance with Title 18 



of the Sitka General Code."           The petition further provides that "Sitka General Code 



Section 2.38.090 . . . is repealed."        Finally, the petition states: 



                 Sitka   General   Code   Section   18.12.010(B)   is   repealed   and 

                 reenacted   [such   that]   .   .   .   [u]pon   sale   or   disposal   of   real 

                 property valued over five hundred thousand dollars, or upon 

                 lease of real property, including tidelands, of a value of more 

                 than   seven   hundred   fifty   thousand   dollars,   the   ordinance 

                 authorizing the sale, lease, or disposition shall provide that 

                 the ordinance be ratified by a majority of the qualified voters 

                 voting at a general or special election.  Any such sale, lease, 

                 or disposition shall be revocable pending the outcome of the 

                 election. 



        59       (...continued) 



required where a home rule municipality's own code does not contain a descriptive 

requirement.      But the question of whether a petition must include a description, even 

where the relevant home rule municipal law does not mandate such a requirement, is a 

constitutional issue not raised by the parties and not properly before us.                   Because we 

conclude   that   the    sponsors'   petition     in   the   present   case   satisfies   our   standards   as 

announced   in Faipeas   and  Medical   Marjuana ,   we   decline   to   reach   these   additional 

questions. 



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----------------------- Page 19-----------------------

              The petition clearly states its general purpose to bring the treatment of 



Sawmill Cove Industrial Park real property under the same rules that govern all other city 



property, and then it sets out the specific changes to Sitka law that will accomplish this 

purpose.  The petition does not seek to persuade voters with partisan language,60 nor is 



it grammatically unclear such that voters could not reasonably understand what conduct 

they are authorizing.61  The petition language is neither confusing nor misleading.  We 



therefore reverse the decision of the superior court. 



V.     CONCLUSION 



              Because the initiative is neither contrary to existing law nor confusing or 



misleading, we REVERSE the decision of the superior court.  We REMAND for further 



proceedings consistent with this opinion. 



       60     See Faipeas, 860 P.2d at 1219. 



       61     See Med. Marijuana,129 P.3d at 898. 



                                           -19-                                        6667 

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