Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Municipality of Anchorage v. Holleman (3/28/2014) sp-6883

Municipality of Anchorage v. Holleman (3/28/2014) sp-6883

         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  



MUNICIPALITY OF ANCHORAGE,  )
  

                                                      )
       Supreme Court No. S-15315  

                           Appellant,                 )
  

                                                      )
       Superior Court No. 3AN-13-06812 CI  

                  v.                                  )  

                                                      )        O P I N I O N  

SAM ANDREW HOLLEMAN and                               )  

JASON ALWARD,                                         )        No. 6883 - March 28, 2014  

                                                      )  

                           Appellees.                 )  

                                                      )  



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

                                                                  

                  Judicial District, Anchorage, Eric A. Aarseth, Judge.  



                  Appearances:   Michael   R.   Gatti   and   Mary   B.   Pinkel,  

                                                         

                  Wohlforth, Brecht, Cartledge & Brooking, Anchorage, and  

                                                                

                  Theresa  L.  Hillhouse,  Assistant  Municipal  Attorney,  and  

                                                                                

                  Dennis  A.  Wheeler,  Municipal  Attorney,  Anchorage,  for  

                                                                              

                  Appellant.  Susan Orlansky, Feldman Orlansky & Sanders,  

                  Anchorage, for Appellees.  



                  Before:  Winfree, Stowers, Maassen, and Bolger, Justices,  

                  and  Matthews,  Senior  Justice.*  

                                                                   [Fabe,  Chief  Justice,  not  

                                       

                  participating.]  



                  MAASSEN, Justice.  



         *        Sitting  by  assignment  made  under  article  IV,  section  11  of  the  Alaska  



Constitution and Alaska Administrative Rule 23(a).  


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

I.       INTRODUCTION  



                  The  Anchorage  Assembly  passed  an  ordinance  modifying  the  labor  



relations  chapter  of  the  Anchorage  Municipal  Code.    Two  citizen-sponsors  filed  an  



                                                                                   

application for a referendum that would repeal the ordinance. The Municipality rejected  



the application, reasoning that the proposed referendum addressed administrative matters  



                                                                                  

that were not proper subjects for direct citizen legislation.  The sponsors filed suit in  



superior court and prevailed on summary judgment.  The Municipality appealed, arguing  



that  the  referendum  is  barred  because  (1)  state  and  municipal  law  grants  exclusive  



authority   over   labor   relations   to   the   Assembly;   (2)   the   referendum   makes   an  



appropriation;  and  (3)  its  subject  is  administrative,  not  legislative.    Following  oral  



                                                                      

argument, we issued an order on January 10, 2014, affirming the superior court's grant  



of summary judgment to the sponsors.  This opinion explains our reasoning.  



II.      FACTS AND PROCEEDINGS  



         A.       The Ordinance  



                  On  February  12,  2013,  Mayor  Dan  Sullivan  and  two  members  of  the  



Anchorage Assembly proposed Anchorage Ordinance No. 2013-37, "An Ordinance  



Amending  Anchorage  Municipal  Code  Chapter  3.70,  Employee  Relations,  with  



                                                                                                     

Comprehensive  Updates  Securing  Long  Term  Viability  and  Financial  Stability  of  



Employee  and  Labor  Relations."    The  Assembly  approved  the  final  version  of  the  

ordinance six weeks later, and the ordinance took effect immediately.1  



                                                                                                 

                  The ordinance amends the Employee Relations chapter of the Anchorage  



                                 2  

Municipal Code (AMC).   It first adds six new subsections to the Declaration of Policy  



         1        Anchorage Ordinance (AO) 2013-37(S-2)  6 (2013).  



         2        AMC 3.70 (2013).  



                                                       - 2 -                                                    6883  


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

                           3  

in AMC 3.70.020.   These subsections encourage the development and implementation     



                                                         4  

of  a  managed  competition  program,   cap  salary  and  benefit  increases,  standardize  



                                                                                                                     

employee benefits and holidays, limit enhanced pay programs, and require unions to  



                                                                                                                    

reimburse the Municipality for employee time spent performing services for the union.  



                    The  ordinance  also  limits  overtime  compensation;  prohibits  strikes;  



eliminates binding arbitration for police, fire protection, and emergency medical services;  



                                                                                

bars  arbitrators  from  relying  on  past  practices  to  alter  unambiguous  provisions  in  



collective bargaining agreements; allows the Municipality to implement its "last best  



offer"  if  the  parties  are  at  a  bargaining  impasse;  and  expands  the  definitions  of  



                                                                                                         

"confidential"   and   "supervisory"   employees,   thereby   increasing   the   number   of  



                                                                                    5  

employees who are barred from collective bargaining.   The ordinance makes other  



relatively  minor  amendments  throughout  the  Code  for   purposes  of  clarity  and  



consistency.  



          B.        Proceedings Below  



                                                            

                    Sam  Andrew  Holleman   and  Jason  Alward  (the  sponsors)  filed  an  



application with the municipal clerk's office for a referendum that would repeal the  



                                                                                                          

ordinance.  The Municipality rejected the application on the advice of its attorney, who  



concluded that the referendum sought to address administrative rather than legislative  



          3         Compare AMC 3.70.020 (2013) with former AMC 3.70.020 (2012).  



          4         A  "managed  competition  program"  is  defined  in  the  ordinance  as  "a  



program intended to procure the delivery of the most reliable, efficient and effective  

municipal  services  to  the  citizens  of  Anchorage,  through  municipal  sponsorship  of  

regulated competition for the delivery of selected services."  



          5         Compare AMC 3.70.010 (2013) with former AMC 3.70.010 (2012).  



                                                              - 3 -                                                        6883
  


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

                                                                                                         6 

                                                                                                    

matters and therefore violated subject-matter restrictions imposed by law.   The sponsors  



                                                     

filed suit in superior court on May 2, 2013, seeking declaratory and injunctive relief.  



The Municipality, in its answer, sought a declaratory judgment in its favor.  



                                      

                   The parties agreed that there were no material facts in dispute and filed  



cross-motions  for  summary  judgment.    The  superior  court  heard  oral  argument  on  



                           

August 19, 2013, granted summary judgment to the sponsors in a written opinion, and  



ordered  that  the  referendum  application  be  accepted.    The  sponsors  soon  collected  



                                                                                                  

enough  signatures  to  place  the  referendum  on  the  ballot,  and  the  ordinance  was  

suspended pending an election.7  



                   The Municipality filed this appeal.  



III.      STANDARDS OF REVIEW  



                                     

                   We review a grant of summary judgment de novo and will affirm "if there  



                                                                                   

are no genuine issues of material fact" and "the moving party is entitled to judgment as  



                        8  

                                                                          

a matter of law."   We review questions of law by "adopting the rule of law that is most  



                                                                                 9  

persuasive  in  light  of  precedent,  reason,  and  policy."     We  apply  our  independent  



          6        This was the sponsors' second application.   Their first was rejected for the  



same reasons, as well as for "technical defects" that they subsequently corrected.  



          7        Article III, subsection 3.02(c) of the Anchorage Municipal Charter provides  



that the "filing of a referendum petition suspends the ordinance . . . if the petition is filed  

                                                                                                                     

within  60  days  after  the  effective  date  of  the  ordinance,"  and  that  the  suspension  

terminates if the referendum is defeated by the voters.  



          8        Municipality of Anchorage v. Repasky , 34 P.3d 302, 305 (Alaska 2001).  



          9         Carmony  v.  McKechnie,  217  P.3d  818,  819  (Alaska  2009)  (internal  



quotation marks omitted).  



                                                            - 4 -                                                      6883
  


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

                          

judgment  when  interpreting  the  Alaska  Statutes,  municipal  charters,  and  municipal  

codes.10  



IV.       DISCUSSION  



          A.        Legal Framework  



                                                                                                          

                    Article XI, section 1 of the Alaska Constitution provides that "[t]he people  



                                    

may propose and enact laws by the initiative, and approve or reject acts of the legislature  



by the referendum."  This right is extended by statute to citizens of home-rule local  



                     11  

governments.             The Anchorage Municipal Charter accordingly "guarantees . . . [t]he  



                                                                                       

right of initiative; the right of referendum; and the right to recall public officers, as herein  



                 12  

                     The right of referendum is not absolute.  Under article XI, section 7 of the  

provided."                                                                                             



Alaska Constitution, "[t]he 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," and a state statute requires that local  

                                                                            13  The Anchorage Charter explicitly  

                                                                                

government charters contain the same restrictions. 



prohibits  direct  legislation  on  "ordinances  establishing  budgets,  fixing  mill  levies,  

                          

authorizing the issuance of bonds, or appropriating funds."14  



          10        Repasky , 34 P.3d at 305.  



          11        AS  29.10.030(a)  ("A  home  rule  charter  shall  provide  procedures  for  



initiative and referendum.").  



          12         Charter art. II(1).  



          13        AS 29.10.030(c) ("A charter may not permit the initiative and referendum           



to be used for a purpose prohibited by art. XI,  7 of the state constitution.").  



          14         Charter art. III,  3.02(a).  



                                                               - 5 -                                                       6883
  


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

                                             

                    "[W]e  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."15  



          B.        The Referendum Is Not Preempted By State Or Municipal Law.  



                    In support of its position that the sponsors' referendum application was  



               

properly rejected, the Municipality first argues that the Public Employment Relations  



Act, the Anchorage Charter, and the Municipality's home-rule status give exclusive  



                                            

authority over labor relations to the Assembly, preempting the citizens' right to legislate  



                                                                                                  

in that area by initiative and referendum.  The Municipality argues alternatively that the  



                                                                                               

referendum at issue here impermissibly strips the Assembly of its authority to enact labor  



relations ordinances.  We reject these arguments.  



                    1.       Public Employment Relations Act  

                    The  Public  Employment  Relations  Act16  (PERA)  establishes  statewide  



                      

guidelines for public employment relations, while allowing local governments to opt out  



                        17 

                                                                                    

of its provisions.          According to the Municipality, PERA grants exclusive authority over  



                                                                                                         

employment relations to the Assembly, and the referendum at issue here clearly conflicts  



                                                             18  

                                                                   The  Municipality  relies  specifically  on  

with  that  grant  of  exclusive  authority. 



          15        Sitkans for Responsible Gov't v. City & Borough of Sitka, 274 P.3d 486,  



492 (Alaska 2012) (internal quotation marks omitted); see also  Thomas v. Bailey, 595  

                                                                                               

P.2d 1, 3 (Alaska 1979) ("The right of initiative and referendum, sometimes referred to  

                                                                              

as direct legislation, should be liberally construed to permit exercise of that right.").  



          16        AS 23.40.070-.260.  



          17        AS 23.40.255(a).  



          18  

                                                               

                    We would invalidate a local initiative or referendum that conflicted with  

                                                                              

state law.  See Whitson v. Anchorage, 608 P.2d 759, 761 (Alaska 1980) (rejecting voter  

                                                      

initiative to require voter approval for new taxes where statute required that taxes be  

                                                                                                           (continued...)  



                                                             - 6 -                                                      6883
  


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

                                                                                                                                      

AS 23.40.255(a), which provides that PERA applies to political subdivisions of the state  



                                                                                

"unless the legislative body of the political subdivision, by ordinance or resolution,  



                                                                                                                 

rejects having [PERA] apply."  But the only authority this statute gives to "the legislative  



                                                                 

body of the political subdivision" is the authority to reject PERA, which the Assembly  



                                                              19 

                                                                   There is nothing in AS 23.40.255(a), or elsewhere  

did shortly after PERA was enacted. 



                                                                                                                  

in PERA, that requires or allows the legislative body to exercise exclusive control over  



labor relations once it has opted out of the Act.   



                       The Municipality relies on several Washington cases that prohibited voter  



                                                       

initiatives on grounds that the power at issue had been granted to the city's governing  



                                                                                                                      

body; such a grant was interpreted to mean "exclusively the mayor and city council and  



                                  20  

not the electorate."                  We do not need to decide whether to apply the same rule here.  



                                  

While PERA does grant the "legislative body" of the Municipality a specific power, it  



                     

is only the power to reject PERA's provisions, not the exclusive power thereafter to  

legislate in the area of labor relations.21  



            18(...continued)  



levied only by general ordinance).  



            19         See Anchorage Mun. Emps. Ass'n v. Municipality of Anchorage                                                    , 618 P.2d   



575, 581 (Alaska 1980).  



            20         Mukilteo Citizens for Simple Gov't v. City of Mukilteo , 272 P.3d 227, 233  

                                                                                      

(Wash. 2012) (holding that an initiative requiring a popular vote to authorize the use of  

                                                                                                          

automated traffic safety cameras for tickets was beyond the scope of the initiative power  

                                                                                                  

because the state legislature granted authority to the local legislature, not the city); City  

                                                                                            

of Sequim v. Malkasian, 138 P.3d 943, 949-51 (Wash. 2006) (holding that an initiative  

                                                                      

was prohibited where the legislature "unambiguously granted the legislative body of the  

                                                                                                                                     

city the authority over revenue bonds").  



            21         AS 23.40.255(a).  



                                                                        - 7 -                                                                  6883
  


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

                     2.        Anchorage Municipal Charter  



                     The Municipality also contends that certain provisions of its Charter, read  

                                                                                                               



together, grant exclusive authority to the Assembly to regulate "all aspects of employee  

                                                                                                         



relations and personnel classification and procedures."  Article V,  5.06 of the Charter  

                                                                                        



states that "[t]he assembly by ordinance shall adopt an administrative code providing for  

                                                                                



.  .  .  [p]ersonnel  policy  and  rules  preserving  the  merit  principle  of  employment."  

                                                         



Article II(9) of the Charter  "guarantees . . . to the people of Anchorage . . . [t]he right  



                                                                                                          

.  .  .  to  a  comprehensive  personnel  classification  and  procedures  system  created  by  



                                                        

ordinance and based upon merit."  But while these provisions require the Assembly to  



                                                    

enact labor-relations ordinances, they do not purport to grant the Assembly all authority  



                                                                                                                 

in  that  area,  to  the  exclusion  of  direct  citizen  legislation  through  initiative  and  



referendum.  



                                                                                                              

                     When Anchorage voters approved the Charter, they knew that certain listed  



                                                                                                      

subjects - mill levies, the issuance of bonds, and appropriation of funds - were off- 



                                                                                                                        22  

limits  for  direct  citizen  legislation  because  the  Charter  expressly  said  so.                                        Labor  



relations is not on the list.  Particularly given the importance of the rights of initiative and  

                                                                                                 



referendum, we will not readily imply such a broad addition to the subjects that cannot  

                                       

be addressed through the exercise of those rights.23  



                     3.        Home-rule status  



                     The Municipality argues that because the legislature has not limited the  

                                                                                                                       



authority of home-rule municipalities to enact labor ordinances, the Assembly's authority  



in the area is exclusive. But this argument fails for the same reason as the Municipality's  

                                            



          22         Charter art. III,  3.02(a).  



          23         See  Vanvelzor v. Vanvelzor, 219 P.3d 184, 188 (Alaska 2009) ("We follow   



the doctrine of statutory construction that when the legislature expressly enumerates  

included terms, all others are impliedly excluded.").  



                                                                - 8 -                                                              6883  


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

                                                                                                        

arguments based on PERA and the Charter.  That a legislative body has the  authority to  



                                                                                                        

make laws does not mean that its authority to make laws is  exclusive of the citizens'  



correlative  right  of  direct  legislation,  absent  some  express  limitation.    If  it  were  



otherwise, the universe in which the initiative and referendum could be exercised would  



be a small one.  



                   4.	       Divesting   the   Assembly   of   the   authority   to   create   labor  

                             ordinances  



                                                                           

                   The Municipality also argues that the referendum, if passed, would "strip  



the  Assembly  of  its  power  to  create  labor  relations  ordinances."    The  Municipality  



compares  this  ordinance  to  the  initiative  at  issue  in  Carmony  v.  McKechnie,  which  



proposed to take away the borough assembly's power to pass land-use regulations by  



                                                               24  

                                                                           

subjecting any regulation to a popular vote.                       The initiative was prohibited because it  



                                                                 

sought to bypass state statutes requiring that a borough establish a planning commission  



to "review, recommend, and administer measures" necessary to implement land use  



         25 

                                                                   

plans,      and because it would have divested  both current and future legislatures "of  

[their] statutorily-mandated role in zoning and land use planning."26  



                   In contrast, the referendum in this case does not subject any future labor  



                                                                      

ordinances passed by the Assembly to a popular vote; it merely allows a popular vote on  



                                    

a single ordinance.  Nor does the referendum prevent the Assembly from passing labor  



ordinances in the future.  As the sponsors point out, "[a]ccepting the Municipality's  



                                                                                                        

claim that the referendum would result in an impermissible divestiture of the Assembly's  



          24       217 P.3d 818, 819 (Alaska 2009).  



          25       Id.  at 821 (citing      Griswold v. City of Homer, 186 P.3d 558, 561-62 (Alaska  



2008)).  



          26	      Id.  



                                                            - 9 -	                                                    6883
  


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

                                                                                  

legislative power effectively would preclude all referenda on local ordinances, because  



all  such  referenda  are  by  nature  a  way  for  the  voters  to  reject  one  act  of  the  local  



                                                                                

legislature."  Our holding in Carmony does not invalidate the referendum at issue here.  



           C.          The Referendum Does Not Apply To An Appropriation.  



                                                                                                                     

                      Article XI, section 7 of the Alaska Constitution prohibits application of  the  



referendum to "dedications of revenue" or "to appropriations," and subsection 3.02(a)  



                                                

of the Anchorage Municipal Charter correspondingly prohibits use of the referendum for  



                                                                                                                                    

"establishing  budgets"  or  "appropriating  funds."                                    The  Municipality  argues  that  the  



                     

referendum at issue here appropriates public assets because the ordinance it seeks to  



                                                                             

repeal was itself intended to save money on labor costs; repealing the ordinance, the  



argument goes, will  ipso facto cost money that the Assembly could otherwise direct  



toward other priorities.  



                                     

                      But we have never held that any effect on public resources triggers the  



prohibition on direct legislation; nearly all legislation involves public assets to some  



            27 

                                 

degree.          We have held that "[a]n initiative proposes to make an appropriation if it would  



set aside a certain specified amount of money or property for a specific purpose or object  



in such a manner that is executable, mandatory, and reasonably definite with no further  



                                 28  

legislative  action."                  In  Anchorage  Citizens  for  Taxi  Reform  v.  Municipality  of  



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



 1077 (Alaska 2009) ("[T]he prohibition against initiatives that appropriate public assets        

does  not   extend   to   prohibit   initiatives   that   regulate   public   assets,   so   long   as  the  

regulations do not result in the allocation of an asset entirely to one group at the expense     

of another.").  



           28  

                                           

                      Alliance of Concerned Taxpayers, Inc. v. Kenai Peninsula Borough , 273  

P.3d 1128, 1136 (Alaska 2012) (quoting Alaska Action Ctr., Inc. v. Municipality of  

Anchorage ,  84  P.3d  989,  993  (Alaska  2004)  and  City  of  Fairbanks  v.  Fairbanks  

                                                                                                                   

Convention & Visitors Bureau, 818 P.2d 1153, 1157 (Alaska 1991)) (internal quotation  

                                                                                                                          (continued...)  



                                                                    -  10 -                                                             6883
  


----------------------- Page 11-----------------------

Anchorage , we noted our use of "a two-part inquiry to determine whether a particular  



                                                      29  

initiative makes an appropriation."                       Under this test, we first "determine whether the  



                                    

initiative deals with a public asset"; our prior cases hold that "public revenue, land, a  



municipally-owned  utility,  and  wild  salmon  are  all  public  assets  that  cannot  be  



                                          30  

appropriated by initiative."                  The second step in the analysis is to "determine whether  



                                                                  31  

                                                                                                                          

the initiative would appropriate that asset."                         In making this determination we look to  



                                                                          

" 'the two core objectives' of the limitation on the use of the initiative power to make  



                            

appropriations":  first, "preventing 'give-away programs' that appeal to the self-interest  



                                                                                   

of voters and endanger the state treasury"; and second, "preserving legislative discretion  



by  'ensur[ing]  that  the  legislature,  and  only  the  legislature,  retains  control  over  the  



                                                                                32  

allocation of state assets among competing needs.' "                                



                                                                                                         

                     The  parties  agree  that  the  referendum  at  issue  here  deals  with  public  



revenue,  which  is  a  public  asset  for  purposes  of  this  analysis.    As  to  whether  the  



          28(...continued)  



marks omitted).  



          29         151 P.3d 418, 422 (Alaska 2006).  We have never had occasion to decide       



whether  a  proposed  referendum  will  make  or  repeal   an  appropriation,  but  we  have  

addressed the issue a number of times in the context of initiatives, and we see no reason            

why the analysis would differ.  In one referendum case,                                Washington's Army v. City of  

Seward, 181 P.3d 1102, 1105-06 (Alaska 2008), we expressly declined to reach the issue  

of whether a city's decision to vacate a public street in favor of a planned inter-agency  

                                                                                 

administrative  and  visitor  center  was  an  appropriation,  holding  that  the  referendum  

                                                                                                             

application had been properly rejected for other reasons.  



          30        Anchorage  Citizens  for  Taxi  Reform ,  151  P.3d  at  422-23  (footnotes  



omitted).  



          31        Id. at 423.  



          32        Id. (emphasis in original).  



                                                              - 11 -                                                        6883
  


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

referendum would appropriate that asset, the Municipality does not argue that it is a  



"give-away  program";  it  contends  rather  that  the  referendum  interferes  with  the  



Assembly's control over the allocation of limited municipal resources by preventing the  

                                                                                                      



Municipality from implementing cost-saving measures - measures that would, in turn,  



free up public revenues to be spent "in other areas of city government, such as public   



works, public health, and non-union employee wages."  



                   But the referendum does not compel or restrict the expenditure of public  



                                                            

funds, the approval of labor contracts, or any particular level of employee compensation.  



                                                      

In a Summary of Economic Effects that accompanied the proposed ordinance when it  



                                                                                                          

was presented to the Assembly, the Municipality's Departments of Law and Employee  



Relations explained the ordinance's anticipated impact on public funds:  



                                                          

                   By  itself,  this  ordinance  does  not  raise  revenue  or  reduce  

                                                                                      

                    expenses,  although  the  intent,  in  part,  is  to  better  manage  

                   labor costs over time.  Until specific labor agreements are  

                   negotiated  and  approved  by  the  Assembly,  the  economic  

                                                                                         

                    effects  of  this  ordinance  cannot  be  known.                     Overall,  the  

                    economic effects will require a comparison of a given current  

                   contract to the proposed new contract.  Even the "soft" cap  

                                                                                     

                   on wage increases may not create economic effects different  

                                                                                            

                    from the current contract, depending on changes in CPI and  

                   other factors.  In addition, every contract is subject to the  

                    annual budgeting and appropriations process.  



                   There may be reductions in administrative costs related to  

                   managing  fewer  benefit  plans,  pay  codes,  and  managing  

                    fewer contract clauses across all the contracts.  But, these cost  

                                                                                       

                   reductions are not predictable at this time.  



Under the Municipality's own assessment, the economic effects of the ordinance are  



indirect and presently unknowable; there is no reason to believe that the economic effects  

                                                            



of  the  referendum  repealing  the  ordinance  are  any  different.    This  is  not  at  all  the  

                                                                                                                 



                                                           -  12 -                                                     6883
  


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

"executable, mandatory, and reasonably definite" set-aside that our case law requires  

before we will find that an initiative or referendum makes an appropriation.33  



           D.         The Ordinance Is Legislative.  



                      The common law in many jurisdictions restricts the powers of initiative and  



                                                                                                                          

referendum to "enactments that are legislative rather than administrative or executive in  



                  34                                                                     35 

character."      We  recognized  this  restriction  in  1973.                                  The  legislature  codified  the  



                                                                         

restriction for municipalities in 1985, at least with regard to the initiative; we assume for  



                                                                                                      36  

purposes of argument that it applies to the referendum as well.                                           The rationale for the  



        

rule is based on "government efficiency grounds" - giving citizens the right to demand  



                                                                                                                 

a  vote  for  "every  administrative  act  of  the  city  council  would  place  municipal  



                                                                                               

government in a straight-jacket and make it impossible for the city's officers to carry on  

the public business."37  



                      Again, the government-efficiency rationale appears to apply equally to both  



                                                                                            

referendums and initiatives.  In Swetzoff v. Philemonoff, we articulated three guidelines  



           33        Alliance of Concerned Taxpayers , 273 P.3d at 1136.  



           34         Swetzof v. Philemonoff, 203 P.3d 471, 476 (Alaska 2009).  



           35         Wolf v. Alaska State Hous. Auth., 514 P.2d 233, 235 n.13 (Alaska 1973).  



           36         The legislature addressed the powers of initiative and referendum for both     



home-rule and general law municipalities through 1985 amendments to the Municipal           

Code.  AS 29.26.110(a) now requires a municipal clerk to certify, "for an initiative  

petition,  that  the  matter  .  .  .  relates  to  a  legislative  rather  than  to  an  administrative  

                       

matter."  The statute contains no such requirement for referendum petitions.  We do not  

                       

need to decide here, however, whether the restriction to legislative matters applies to  

referendums, as we hold that the referendum at issue is legislative and would not be  

barred in any event.  



           37  

                                                                                       

                      Swetzof, 203 P.3d at 476 (quoting Hous. Auth. of Eureka v. Superior Court ,  

219 P.2d 457, 461 (Cal. 1950)).  



                                                                  -  13 -                                                           6883
  


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

for determining whether an initiative impermissibly addresses an administrative matter,  

                           



and we apply the same guidelines in this case:  



                                      

                     1.         An ordinance that makes new law is legislative; while  

                                                                                   

                     an ordinance that executes an existing law is administrative.  

                     Permanency and generality are key features of a legislative  

                     ordinance.  



                     2.         Acts that declare public purpose and provide ways and  

                                                                                                       

                     means to accomplish that purpose generally may be classified  

                     as  legislative.  Acts  that  deal  with  a  small  segment  of  an  

                     overall policy question generally are administrative.  



                     3.         Decisions  which  require   specialized  training  and  

                     experience in municipal government and intimate knowledge  

                                                                                

                     of the fiscal and other affairs of a city in order to make a  

                                                                              

                     rational        choice        may        properly          be     characterized            as  

                                                  

                     administrative, even though they may also be said to involve  

                                               

                                                                    [38] 

                     the establishment of a policy.  



                     We  first  address  whether  the  ordinance  at  issue  makes  new  law.    The  



Municipality acknowledges that certain provisions of the ordinance at issue here were  



not in previous versions of the Municipal Code and instead represent new policies.  It  



                                                                              

argues that the policies are good ones, but it fails to adequately explain why they are not  



              39  

                                      

new law.           It contends that the ordinance represents simply "a step along a previously  



           38        Id.  at 477, 479 (quoting            City of Wichita v. Kansas Taxpayers Network, Inc.                             ,  



874 P.2d 667, 671-72 (Kan. 1994)).  



           39        For example, the Municipality argues that the new cap on salary and benefit  

                                                                                                          

increases will allow the Municipality to "not . . . exceed the cost of living with [its]  

overall [labor cost] increases," and the uniform holiday provisions "will make it easier  

                                                                                                                    

for supervisors to manage their employees."  Similarly, the Municipality claims that the  

no-strike provision "recognizes the threat to [the] public, health, and safety that would  

                                                    

result if other unions were to strike."  



                                                                -  14 -                                                          6883
  


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

                           40 

                                                                                                                               

charted course"                because it returns the Municipality to policies that were in effect in the  



                                                                                                                  

1980s and that resulted in fairly standardized employee benefits.  As the sponsors point  



out, however, the Municipality followed a different course for several decades.  A return  



                                                                                                    41  

                                                                                                                          

to the policies of 1985 represents a "new policy direction"                                            for 2013.  We conclude that  



the ordinance makes new law.  



                                                                                

                       The ordinance is also permanent and general.  The Municipality claims that  



                                                                                                  

the ordinance is not permanent because it does not take the Municipality "permanently  



                                                                                          

. . . out of the practice of recognizing its unions and collectively bargaining with them,"  



                                        

and  because  a  future  Assembly  could  again  change  the  Municipal  Code.    But  this  



argument is unpersuasive.  If permanency in this context meant that a law had to be  



impervious to change by a successor legislative body, no law would ever be permanent  



                         42  

                                                         

under Swetzof.                The ordinance is also general; it applies to all public unions and union  



members.  



                       The second guideline from Swetzof similarly points to the conclusion that  



                                   

the ordinance, and therefore the referendum seeking to repeal it, are legislative.  The  



ordinance declares new public policies and provides ways and means to accomplish  



them.    The  Municipality  broadly  defines  the  relevant  policy  as  "labor  relations"  or  



                                                                                            

"collective bargaining" and argues that the ordinance deals with only a small piece of this  



                                                        

larger question.  The sponsors argue, on the other hand, that this distinction is "more  



            40         Swetzof, 203 P.3d at 479.  



            41         Id.  



            42         See Mount Juneau Enters., Inc. v. City & Borough of Juneau                                             , 923 P.2d 768,   



776 (Alaska 1996) ("The law is clear that a legislative body may not limit its power to         

act  one  way   or  another  in  the  future  in  governmental[,]  as  opposed  to  proprietary,  

functions." (quoting City of Louisville v. Fiscal Court of Jefferson Cnty., 623 S.W.2d  

219, 224 (Ky. 1981))).  



                                                                       -  15 -                                                                6883
  


----------------------- Page 16-----------------------

                                                                  

semantic than meaningful," and we agree.  Even assuming that the relevant policy is the  



                                                                                                                

broad one of labor relations, the ordinance still deals with a significant part of this policy.  



                                                                                    

                    The  ordinance  also  provides  the  "ways  and  means  to  accomplish  [its]  



               43  

purpose."          The overall purpose of the ordinance is to "upgrade" the Municipality's  



labor code so that it is more uniform and efficient.  The ordinance provides the ways and  



                                                                                           

means to accomplish that purpose by setting out the six new policies designed to reduce  

costs, standardize benefits, and otherwise modernize the code,44 and by making other  



                                                                                                               

revisions intended to effectuate these policy goals, such as eliminating the rights to strike  



and to binding arbitration.  



                                                                                                                    

                    The third Swetzof guideline looks to whether deciding the issue in question  



                             45  

requires  expertise.               If  specialized  training  in  municipal  government  or  intimate  



                                                         

knowledge of the fiscal affairs of the city is required to intelligently decide the issue, the  



                                                                                      46  

ordinance is likely administrative rather than legislative.                               However, "guideline three  



                                                                                                                                 47  

                                                        

should not supersede guidelines one and two when analyzing broad policy decisions." 



                                                                                       

Thus in Swetzof we assumed that the proposed initiative (intended to move the City of  



St.  Paul  out  of  the  business  of  selling  electric  power)  could  involve  financial  



                                       

consequences  "that  the  electorate  cannot  readily  appreciate,"  but  we  nonetheless  



          43        Swetzof, 203 P.3d at 479.  



          44        The six new policies are: managed competition, limiting direct labor cost  



increases, standardizing employee benefits, reimbursement to the Municipality for union  

                                                                                          

work, uniform holidays, and elimination of pay enhancements for new employees.  AMC  

                                                                                                   

3.70.020(C)-(H).  



          45        Swetzof, 203 P.3d at 479.  



          46        Id. at 479-80.  



          47        Id. at 480.  



                                                              - 16 -                                                       6883
  


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

                                                                48  

concluded that the initiative was legislative.                      Looking at the ordinance in this case, we  



                                                                                                                     

credit the Municipality's arguments that it deals with many specific labor rules and the  



                                                                                                          

intricate details of the Municipality's interactions with unions and union members.  Still,  



                                                                  

the ordinance addresses broad concepts that voters can readily understand - managed  



                     

competition, caps on compensation, bringing uniformity to benefits and holidays, and  



                                              

eliminating the rights to strike and to binding arbitration.  Again, we conclude that the  



third Swetzof factor points to a conclusion that the ordinance, and the referendum seeking  



to repeal it, are legislative.  



                                                                                                         

                    Our conclusion is not changed by the fact that certain parts of the ordinance  



are clearly administrative.  In Swetzof, we specifically rejected a fourth guideline that  



would have only allowed direct legislation for "measures which are quite clearly and  



                                                                                                  49  

fully  legislative  and  not  principally  executive  or  administrative."                              In  rejecting  this  



guideline, we observed that it "may give too much weight to the administrative aspects  



of an initiative containing both legislative and administrative matters," which would "run  



                                                   

counter to our rule of construction that proposed initiatives should be construed liberally  



                                                                                                               50  

                                                                                                                     Having  

. . . to  support the electorate's right to  participate in  direct law-making." 



reviewed the ordinance at issue here using the three guidelines of Swetzof, we conclude  



that the voters have a right to address it by referendum.  



V.        CONCLUSION  



                    The superior court's order granting summary judgment to the sponsors and  

                                                           



denying the Municipality's cross-motion for summary judgment is AFFIRMED.  



          48       Id. at 479-81.  



          49       Id. at 477.  



          50       Id. at 479.  



                                                            - 17 -                                                         6883  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC