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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Price v. Kenai Peninsula Borough (8/8/2014) sp-6934

Price v. Kenai Peninsula Borough (8/8/2014) sp-6934

         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, email  

                                                                                    

         corrections@appellate.courts.state.ak.us.  



                   THE SUPREME COURT OF THE STATE OF ALASKA  



JAMES PRICE,                                             ) 

                                                         )     Supreme Court No. S-14713  

                  Appellant,                             ) 

                                                         )     Superior Court No. 3KN-11-00404 CI  

         v.                                              ) 

                                                         )     O P I N I O N  

KENAI PENINSULA BOROUGH and    )
  

JOHNI BLANKENSHIP, CLERK,                                )    No. 6934 - August 8, 2014
 

                                                         )  

                  Appellees.                             )  

_________________________________ )  



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

                              

                  Judicial District, Kenai, Charles T. Huguelet, Judge.   



                  Appearances:  Kenneth P. Jacobus, Kenneth P. Jacobus, P.C.,  

                  Anchorage, for Appellant.  Colette G. Thompson and Holly  

                                                        

                  B. Montague, Soldotna, for Appellees.  



                  Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                               

                  Bolger, Justices.  



                  STOWERS, Justice.  



I.       INTRODUCTION  



                  James  Price  challenges  the  superior  court's  order  affirming  the  Kenai  



Peninsula Borough ("Borough") Clerk's rejection of his ballot referendum application.  

                                                        



The proposed referendum would repeal Borough Ordinance 2008-28, which authorizes  



the general law cities within the Borough to tax nonprepared food items on a year-round  



basis.  The Borough Clerk and the superior court rejected the application on the ground  

                                                                                   


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

that it violated AS 29.26.100's prohibition on local or special legislation.  We conclude  

                                             



that the referendum does not violate the prohibition on local or special legislation and  



would be enforceable if passed. Accordingly, we reverse.  



II.      FACTS AND PROCEEDINGS  



                   The Kenai Peninsula Borough imposes a consumer sales tax on all retail  



                                                                                           1  

sales, rents, and services made or rendered within the Borough.    In the 2008 regular   



election, Borough voters approved an initiative providing for a nine-month exemption  

                                                                                         

from the Borough sales tax on nonprepared food items.2  In anticipation of this initiative,  



                                                                                     

the Borough Assembly adopted Ordinance 2008-28, which allows general law cities in  



the Borough to continue taxing nonprepared food items on a year-round basis. 



                                                                                                        

                    There are six cities within the Borough: Kachemak, Homer, Soldotna, and  



                               

Seldovia, which are general law cities, and Kenai and Seward, which are home rule  



        3  

cities.   Alaska Statute 29.45.700(a) provides that a general law city in a borough may  



only  levy  and  collect  sales  taxes  "in  the  manner  provided  for  boroughs"  unless  the  



borough assembly "by ordinance authorize[s] a city to levy and collect sales and use  



                                                                                                        4  

                                                                                                           Kachemak  

taxes on other sources."  Home rule cities are not subject to this provision. 



          1        Kenai Peninsula Borough Code (KPB) 05.18.100.  



         2         KPB 05.18.200(A)(15)(d).  



         3         A general law city has legislative powers conferred by law, whereas a home                     



rule city has all legislative powers not prohibited by law or charter.  AS 29.04.020;  

AS 29.04.010.  



         4         See AS 29.04.010.  



                                                           -2-                                                     6934
  


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

                                                         5  

does not currently impose a sales tax.   Thus, only Homer, Soldotna, and Seldovia are  

                              

presently affected by Ordinance 2008-28.6  



                                                                                      

                    On May 3, 2010, Price filed an application for a referendum petition with  



                                                                                       

the Borough Clerk entitled "Referendum to Repeal Kenai Peninsula Borough Ordinance  



                                                                                              

2008-28."    The  proposed  referendum,  which  was  assigned  number  2010-01  by  the  



Clerk's  Office  (hereinafter  "Referendum  2010-01"),  would  "end[]  the  Borough's  



                      

authorization for the cities of Soldotna, Homer, and Seldovia to collect sales tax for  



nonprepared food items."  



                                                                                                        

                    On May 14, 2010, the Borough Clerk rejected Price's application on two  



                                                                                                   

grounds:  (1) the proposed referendum constituted local or special legislation in violation  



                                                                                           

of AS 29.26.100 because it would allow all Borough voters to vote on an issue that only  



                                                                                          

concerns  Homer,  Soldotna,  and  Seldovia;  and  (2)  the  proposed  referendum  was  



                                                                       

unenforceable  as  a  matter  of  law  because  it  circumvented  AS  29.45.700(a),  which  



                                                                              

provides that only the "assembly" may authorize a city to tax sources that the Borough  



does not.  



                                              

                    Price  filed  suit  against  the  Borough  in  superior  court  and  sought  an  



                                                                                                      

injunction requiring the Clerk to prepare the referendum petition so that signatures could  



                                              

be gathered for placement on the 2011 Borough municipal ballot.  Both parties moved  



                                                                    

for summary judgment.  The superior court granted the Borough's motion, concluding  



          5         We  recognize  that  someday,  should  it  elect  to  impose  a  sales  tax,  the  



general law city of Kachemak could be directly affected by Ordinance 2008-28.  But on  

the facts before us, Kachemak is not directly affected by the ordinance and would not be  

                                                        

affected by the proposed referendum.  



          6         Each of these cities imposes a sales tax on certain items. See Homer City  



Code (HCC) 09.16.010; Soldotna Municipal Code (SMC) 03.08.010; Seldovia City Code  

(SCC) 03.08.010. Homer provides its own seasonal exemption for sales of nonprepared  

                                         

food items from September through May.  HCC 09.16.100.  



                                                               -3-                                                         6934
  


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

that the referendum constituted local or special legislation in violation of AS 29.26.100.  



                                                                                                                       

In light of this ruling, the superior court did not address whether the application was also  



unenforceable as a matter of law.  Price appeals.  



III.      STANDARD OF REVIEW  



                    "We  review  grants  of  summary  judgment  de  novo,  exercising  our  



independent judgment to determine whether the parties genuinely dispute any material  



                                                                                                  

facts and, if not, whether the undisputed facts entitle the moving party to judgment as a  



                      7  

                                                                    

matter of law."          We generally do not review an initiative or referendum unless and until  



                                         8  

                                            However, exceptions to this rule exist where the proposed  

it is approved by the voters. 



                                                                               

legislation is challenged on the basis that it does not comply with the constitutional and  



                                                                                                           

statutory provisions regulating initiatives and referendums, or where it is challenged as  



                                                      9 

                                                         Whether a ballot initiative or referendum complies  

clearly unconstitutional or unlawful. 



         

with constitutional and statutory requirements is a question of law, which we review  



using our independent judgment, "adopting the rule of law that is most persuasive in  



                                                           10  

                                                                "In matters of initiative and referendum, we  

light of precedent, reason, and policy." 



          7         Kodiak  Island  Borough  v.  Mahoney ,   71   P.3d  896,  897  (Alaska  2003)  



(quoting State, Dep't of Health & Soc. Servs. v. Planned Parenthood of Alaska, Inc.                                          , 28  

P.3d 904, 908 (Alaska 2001)) (internal quotation marks omitted).  



          8  

                                                                                                       

                    Alaskans for Efficient Gov't, Inc. v. State , 153 P.3d 296, 298 (Alaska 2007).  



          9         Carmony  v.  McKechnie,  217  P.3d  818,  819-20  (Alaska  2009)  (citing  



Alaskans for Efficient Gov't, Inc. , 153 P.3d at 298). Because Referendum 2010-01 was  

                                                                               

rejected by the Borough Clerk on the grounds that (1) it was unlawful local or special  

                                                                                                            

legislation and (2) that it would impermissibly conflict with power granted exclusively  

                                                                        

to  the  Borough  Assembly,  its  lawfulness  and  compliance  with  statutory  provisions  

regulating initiatives and referendums has been challenged.  



          10        Anchorage Citizens for Taxi Reform v. Municipality of Anchorage , 151 P.3d  



418, 422 (Alaska 2006) (citing Pullen v. Ulmer , 923 P.2d 54, 58 (Alaska 1996)).  



                                                               -4-                                                         6934
  


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

have previously recognized that the people are exercising a power reserved to them by     



the  constitution  and  the  laws  of  the  state,  and  that  the  constitutional  and  statutory  

provisions under which they proceed should be liberally construed."11  



IV.	      DISCUSSION  



          A.	       Referendum 2010-01 Does Not Violate AS 29.26.100's Prohibition On  

                                          

                    Local Or Special Legislation.  



                    Article XI, section 1 of the Alaska Constitution grants to the people the  

                                                          



power  to  enact  or  change  state  laws  through  initiatives  and  referendums,  and  



                                                                                                     

AS 29.26.100 reserves to the residents of municipalities the power to use initiatives and  



                                                                                  12  

referendums to enact or change municipal ordinances.                                  The constitution restricts the  



initiative and referendum powers by providing that "[t]he initiative shall not be used  



                                                                  

to . . . enact local or special legislation" and "[t]he referendum shall not be applied . . . to  



                                           13  

local or special legislation."                 Alaska Statute 29.26.100 extends these restrictions to  



municipal initiatives and referendums.  



                                                                                          

                    Both the Borough Clerk and the superior court rejected Price's referendum  



application because they concluded that the proposed referendum constituted local or  



          11        Municipality  of  Anchorage  v.  Frohne ,  568  P.2d  3,  8  (Alaska  1977)  



(footnotes omitted) (citing Alaska Const. art. XI,  1; Boucher v. Engstrom , 528 P.2d  

                                                                      

456, 462 (Alaska 1974)); see also Kodiak Island Borough v. Mahoney , 71 P.3d 896, 898  

                                                                                                          

(Alaska 2003) ("We liberally construe constitutional and statutory provisions that apply  

                                                           

to the initiative process."  (citing Brooks v. Wright , 971 P.2d 1025, 1027 (Alaska 1999);  

                                                                                                             

Interior Taxpayers Ass'n v. Fairbanks N. Star Borough , 742 P.2d 781, 782 (Alaska  

                                                                                                        

 1987))).  



          12  

                                                                       

                    The parties and the superior court used the plural "referendums" and we do  

                                    

likewise.  The plural of "referendum" can either be "referenda" or "referendums."  BRIAN  

A.   GARNER ,   GARNER 'S  DICTIONARY OF  LEGAL USAGE 762 (3d ed. 2011) (noting that  

"the English plural -dums seems to be on the rise").  



          13        Alaska Const. art. XI,  7.  



                                                               -5-	                                                        6934
  


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

                                            

special legislation.  But, while an initiative is unconstitutional if it enacts local or special  



                                                                                                                                              

legislation, a referendum is unconstitutional only if it would approve or reject local or  



                                 14  

special legislation.                  We must, therefore, consider whether Ordinance 2008-28 is local  



or special legislation.  



                        We         have         established              a      "two-stage              analysis           for       determining  



                                                                                                    15  

                                                                                                        The first stage requires us to  

whether . . . legislation is 'local or special legislation.' " 



                                                     

determine                whether             the       legislation               is      of      general             -        in       this       case  



                                                      16  

                                                                                                                

boroughwide - applicability.                               If the legislation is generally applicable it is not local  



                                                                                                         17  

or  special  legislation,  and  no  further  inquiry  is  required.      If  the  legislation  is  not  



generally applicable, we proceed to the second stage and ask whether the legislation  

"bears a 'fair and substantial relationship' to legitimate purposes."18  



                                                                                               

                        Price argues that Referendum 2010-01 meets the first part of the two-part  



"local  or  special  legislation"  test  because  "the  effects  of  the  referendum  .  .  .  are  



borough-wide, and do not affect only certain area[s] of the Borough."  



                                                                                                                           

                        In rejecting the application for the referendum petition, the Borough Clerk  



                                                                   

concluded that Referendum 2010-01 lacked boroughwide applicability because the law  



            14          Id. ; see also Walters v. Cease                      , 394 P.2d 670, 671 (Alaska 1964) (holding  



that Secretary of State could not refer an act of the legislature for referendum by the   

voters because the act was local or special legislation), abrogated on other grounds by  

Boucher v. Engstrom , 528 P.2d 456 (Alaska 1974).  



            15  

                                                           

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

 1078 (Alaska 2009) (citing Boucher , 528 P.2d at 461).  



            16          Id. (citing Boucher , 528 P.2d at 461).  



            17  

                        Id.  



            18          Id.  at 1079 (quoting  State v. Lewis, 559 P.2d 630, 643 (Alaska 1977))  



(internal quotation marks omitted).  



                                                                           -6-                                                                    6934
  


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

would impact the taxation schemes of only three of the Borough's six cities.  The clerk  

                                                                                                                                  



reasoned:  



                       [T]he  voters  outside  the  cit[ies],  which  far  outnumber  the  

                      voters within the three general law cities, would be allowed  

                      to vote on an issue that only concerns the three general law  

                                                                                                        

                       cities.  The voters outside [the] cities who shop and pay sales  

                                                                                                      

                      tax within the cities may be quite motivated to vote in favor  

                                                                                                               

                       of repealing a city source of taxation since the programs and  

                       functions supported by that taxation are city functions and  

                                                                                      

                      programs, not areawide functions and programs.  Since the  

                                                                                                            

                       law will only impact the taxation scheme within the three  

                       cities, which is not a boroughwide concern, it does not have  

                                  

                      boroughwide applicability.  



The superior court similarly concluded that the proposed referendum lacked general,  



boroughwide applicability because "although anyone shopping for groceries in Soldotna,  



Homer, or Seldovia would receive a benefit from the proposed referendum, the substance  



and stated purpose of the referendum is to take the power to tax groceries away from the  

                                                                                                 



residents of Soldotna, Homer, and Seldovia and subject it to a boroughwide vote."  



                       The parties, the Borough Clerk, and the superior court incorrectly focused  

                                            



their analysis on whether Referendum 2010-01, rather than Ordinance 2008-28, was  

                                                                    



local  or  special  legislation,  but  the  error  has  no  determinative  effect.    Because  the  



ordinance in this case was passed by an assembly representing the entire Borough, the  

                                              



same factors are relevant to determining whether either the referendum or the ordinance  



was local or special legislation.  Thus, for the purpose of our analysis, we will consider  

                                                                                                                       



the superior court's analysis and the parties' arguments as applied to Ordinance 2008-28.  



                       Our case law establishes that a law does not cease to be general and become                      



local or special merely because it operates only in certain subdivisions of the state or in     



                                                                       -7-                                                               6934
  


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

                    19  

                                                                              

certain areas.          Instead, we have emphasized that the critical question is whether there  



                                                                                                

are area-wide interests in the legislation:  "General laws . . . are general . . . because their  



                                                                                      20  

                                                                                          We have also observed that  

subject matter is of common interest to the whole state." 

a law may not be generally applicable where it creates a permanently closed class.21  



                                                                                      

                    We have previously examined the intent of the delegates to the Alaska  



                                                                                                                             22  

                                                                                                                                 In  

Constitutional Convention to determine whether a law has areawide applicability. 



                                                                                                    

Boucher v. Engstrom , we noted that the Report of the Committee on Direct Legislation,  



                     

Amendment and Revision stated that special laws "are of interest to only one group of  



          19        Boucher , 528 P.2d at 461-62 (rejecting view expressed in Walters v. Cease,  



394 P.2d 670, 672 (Alaska 1964), that legislation was local because it applied to "only  

                              

a limited number of geographical areas, rather than being widespread in its operation  

throughout the state"), overruled on other grounds by McAlpine v. Univ. of Alaska, 762  

                                                        

P.2d 81, 85 (Alaska 1988); Abrams v. State , 534 P.2d 91, 94 (Alaska 1975) (citing  

Boucher , 528 P.2d at 461-62).  



          20  

                                                                                   

                    Boucher , 528 P.2d at 461-62 (alterations in original) (quoting 2 C. DALLAS  



             

SANDS , STATUTES AND STATUTORY CONSTRUCTION    40.02, at 139-40 (4th ed.1973)).  



          21        Bridges v. Banner Health , 201 P.3d 484, 494-95 (Alaska 2008) (citing 2  



NORMAN J.   SINGER ,   STATUTES AND STATUTORY CONSTRUCTION    40.1, at 212-13 (6th  

ed. 2000)) (holding that the statutory definition of "health care facility" in AS 18.07.111  

                                           

is not a special act because it does not create a permanently closed class); Pebble Ltd.  

                                                                                             

P'ship ,  215  P.3d  at  1080  (holding  that  proposed  regulation  that  affected  only  two  

                                           

proposed mines was generally applicable in part because it could apply to future mines);  

                                 

but see id. at 1078 n.63 (clarifying that "creation of a 'permanently closed class' does not  

                                                                                 

necessarily constitute prohibited special legislation if the legislation bears a fair and  

substantial relationship to legitimate public purposes").  



          22        The local initiative power is statutory rather than constitutional in origin.  



                                                                                                              

See Alliance of Concerned Taxpayers, Inc. v. Kenai Peninsula Borough, 273 P.3d 1128,  

 1139   (Alaska   2012).   However,   the   delegates'   intent   remains   relevant   because  

                                                                                             

AS  29.26.100  applies  the  constitutional  ban  on  local  or  special  legislation  to  the  

municipalities.  



                                                                -8-                                                         6934
  


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

people or people in only one portion of the state."23  And in Pebble Limited Partnership  

                                                                           



ex  rel.  Pebble  Mines  Corporation  v.  Parnell,  we  observed  that  the  constitutional  

                                                                                                    



delegates  expressed  views  that  the  intent  of  article  XI,  section  7's  ban  on  special  



legislation "was to prevent the initiation of legislation affecting local areas wherein the  



                                                                                               

people of the state as a whole would be allowed to vote on issues which concerned only  

one locality."24  



                   In both Boucher  and Pebble Limited Partnership we held that initiatives  



were  generally  applicable  although  the  effects  of  the  initiatives  would  likely  not  be  



                                                                                   

uniform statewide.  In Boucher , we held that an initiative that sought to relocate the state  

                                                                                                                     25   We  

capital to a location other than Fairbanks or Anchorage was generally applicable. 



explained that "[w]hile the two areas that initially will be most significantly involved are  

                                                                                           



Juneau and the new capital site, the entire state will be affected on a long-term basis not  



only in regard to accessibility, but additionally as to such factors as potentially increased  

                                                                                                            26   Similarly,  

                                                                                                                

governmental efficiency flowing from a planned unified capital complex." 



in Pebble Limited Partnership , we concluded that a proposed ballot initiative regulating  

                                                                         



large scale metallic mining operations was generally applicable despite the fact that the  

                 



initiative's definition of a "large scale metallic mining operation" would encompass only  

                                                                                                        



          23        528 P.2d at 461 n.17.  



          24       215 P.3d 1064, 1078 n.57 (Alaska 2009) (quoting 2 Proceedings of the  



Alaska Constitutional Convention (PACC) 1132-34 (Dec. 19, 1955)) (internal quotation  

                                                                                          

marks omitted).  



          25        528 P.2d at 462-64.  



          26       Id. at 461.  



                                                             -9-                                                       6934
  


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

two proposed mines.27  We observed that "[a]lthough the Pebble and Donlin Creek mines  

                                       



may be the only proposed mines currently affected by [the initiative], the language of the  

                                                      



initiative  is  sufficiently  broad  that  it  would  apply  to  any  new  [large  scale  metallic  

                     

mines]."28  



                      In Baxley v. State , by contrast, we reached the second part of the two-part  

                                                                                                                            



analysis after concluding that a statute authorizing the amendment of four state oil and  

                                                      



                                                                                                             29  

gas leases in the Northstar Oil Field focused on only one locality.                                              And in Abrams v.  



State, we held that a statute pertaining to the organization of the Eagle River-Chugiak  



Borough was "peculiar to the locality where it is applicable," noting that "[t]he subject  

matter can hardly be said to be of statewide interest or impact."30  



                      Turning to Ordinance 2008-28, we conclude that the ordinance is more akin  



                                                                      

to legislation that we have previously held to be generally applicable.  Borough  residents  



                                                                                     

who do not live in the general law cities  have an interest in Ordinance 2008-28 and  



                                                                                          

Referendum 2010-01 because they may shop and use other services in the general law  



cities.  It is not dispositive that some residents may have a lesser interest in particular  



                                                                         

legislation, or that they stand to benefit from a referendum rejecting that legislation; most  



                                  

laws have a greater effect on some groups or some locations than others.  The intent of  



                                                                                                                               

the constitutional ban on local and special legislation was to prevent the state as a whole  

                                                                                                      31    This  same  reasoning  

from  voting  "on  issues  which  concern[]  only  one  locality."      



           27         215 P.3d at 1080-81.
  



           28         Id. at 1080.
  



           29
        958 P.2d 422, 424, 430-31 (Alaska 1998).  



           30         534 P.2d 91, 92, 94 (Alaska 1975).  



           31         Pebble Ltd. P'ship            , 215 P.3d at 1078 n.57 (quoting 2 PACC 1132-34 (Dec.         



                                                                                                                         (continued...)  



                                                                    -10-                                                               6934
  


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

applies to borough ordinances and referendums.  Certainly Ordinance 2008-28 is of  



                                                                             

greater concern to the residents of the general law cities, but given that it applies to three  



                                                       

of the Borough's six cities (and it could apply to a fourth), and it affects all Borough  



                                                             

residents who shop in the general law cities, it is of general concern to the residents of  



                                                                                                        

the entire Borough.  We also observe that the general law cities in the Kenai Peninsula  



                                                                                                             

Borough do not constitute a closed class.  The ordinance does not just apply to the four  



extant cities; it applies to a class of cities that could theoretically grow in the future.  



                                                    

                     Because Ordinance 2008-28 is of boroughwide interest and does not apply  



                                           

to  a  permanently   closed   class,  it  is  generally  applicable  and  does  not  violate  



                                                                                            

AS 29.26.100's prohibition on local or special legislation.  Consequently, we need not  



                                                                

consider whether the ordinance bears a fair and substantial relationship to legitimate  



                                  

Borough  purposes.               Because  Ordinance  2008-28  is  not  local  or  special  legislation,  



                                                     

Referendum  2010-01  does  not  violate  AS  29.26.100's  prohibitions  on  applying  



referendums to local or special legislation.  



                

          B.         Referendum 2010-01 Is Not Unenforceable As A Matter Of Law .  



                                              

                     Alaska  Statute  29.45.700  grants  power  to  the  Borough  Assembly  to  



                                      

authorize a general law city to collect sales taxes on sources the Borough does not tax.  



                                                                                                          

The Borough argues that because the power to authorize taxation is exclusive to the  



                                                         

Assembly, allowing a referendum to negate the authorization would unlawfully delegate  



power to the voters that was intended to be held only by the Assembly.  The superior  



                                                                        

court did not address this argument, finding it unnecessary to do so in light of its ruling  



                                                                                                                         

that Referendum 2010-01 constitutes local or special legislation.  Price also does not  



                                                                                                            

address this issue on appeal.  But because we hold that Referendum 2010-01 does not  



          31(...continued)  



19, 1955)) (internal quotation marks omitted).  



                                                                -11-                                                              6934  


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

violate  the  prohibition  on  local  or  special  legislation,  we  consider  the  Borough's  

alternative argument that the referendum would be unenforceable as a matter of law.32  



We conclude that the referendum would be enforceable.  



                      The Borough Clerk concluded that Referendum 2010-01 was unenforceable  



                                                                                                    

as  a  matter  of  law  because  it  was  in  "direct  conflict"  with  AS  29.45.700(a),  which  



                                                           

provides that "the assembly may by ordinance authorize a city to levy and collect sales  



                                                                         

and use taxes on other sources."  The Clerk reasoned that "it is the 'assembly' which  



                                                                                                

authorizes  the  city  to  tax  sources  that  the  borough  does  not,"  and  "[s]uch  a  direct  



delegation to the assembly cannot be circumvented through the referendum process."  



                      In  Whitson v. Anchorage, we invalidated an initiative requiring that any  



                                                                    

new tax or tax-rate increase in Anchorage be ratified by a majority of voters on the basis  



                                                                                                                      

that it conflicted with state law that specifically mandated that municipal taxes must be  



                                                                       33  

                                                                           Similarly, in Municipality of Anchorage  

levied by general ordinance of the assembly.  



v.  Frohne,  we  held  that  an  initiative  that  would  have  allowed  voters  to  choose  a  



municipal assembly district apportionment plan conflicted with the statutory scheme  



                                                                                        34  

governing  the  adoption  of  local  government  charters.                                     And  in  Griswold  v.  City  of  



                                   

Homer , we held that zoning by initiative is invalid because Alaska statutes provide for  



                                    

the  establishment  of  a  planning  commission  and  related  procedures  that  must  be  



           32         "We may affirm the grant of summary judgment on any grounds discerned             



from the record, even grounds not asserted by the trial court or parties."                                               Kuretich v.  

Alaska Trustee, LLC , 287 P.3d 87, 88 (Alaska 2012) (citing                                   Kiernan v. Creech , 266 P.3d   

312, 319 (Alaska 2012); Moore v. Allstate Ins. Co.                                , 995 P.2d 231, 233 (Alaska 2000)).       



           33         608 P.2d 759, 760-61 (Alaska 1980).  



           34         568 P.2d 3, 7-9 (Alaska 1977).  



                                                                  -12-                                                             6934
  


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

followed, and zoning by initiative would bypass these statutory mandates and "exceed[]   

the scope of the legislative power granted by the legislature to the city council."35  



                    Referendum  2010-01  presents  none  of  the  enforceability  concerns  that  



existed in Whitson, Frohne , or Griswold, because Referendum 2010-01 does not conflict  



                                              

with existing state law.  Alaska Statute 29.45.700(a) provides that the borough assembly  



                                                                                                         

"may by ordinance authorize a city to levy and collect sales and  use  taxes on other  



                                                                                                    

sources."  The Borough argues that under AS 29.45.700(a) "only the assembly may  



                                                                                           

authorize the cities to tax different sources than the borough."  But we need not consider  



whether voters could by direct legislation authorize general law cities to tax different  



                                                                                                  

sources than the Borough.  Referendum 2010-01 does not authorize the general law cities  



to do anything; rather, if passed it would repeal an authorization previously made by the  



Borough Assembly.  Nothing in AS 29.45.700 prohibits repealing by referendum an  



ordinance authorizing city taxation, so referendum 2010-01 does not directly conflict  



with this statute.  



                                                                     

                    The Borough also argues that the referendum is "in direct conflict with the  



                                                                                      

assembly's exclusive authority to determine whether cities may tax sources not taxed by  



       

the borough."  This argument suggests a broader prohibition on repeal by referendum of  



enactments made in areas of the assembly's "exclusive authority."  



                                                                                                           

                   We recently considered a similar issue in Municipality of Anchorage v.  

               36  In that case, the municipality contended that the language of the municipal  

Holleman .          



charter, which required the "assembly" to adopt a  personnel policy and a personnel  



          35        186 P.3d 558, 563 (Alaska 2008).  



          36        321 P.3d 378, 383 (Alaska 2014).  



                                                            -13-                                                          6934  


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

                                                                                                         37  

classification system, granted exclusive authority to the assembly.                                          We concluded that  



                                                                   

these provisions were not intended to be exclusive: "while these provisions require the  



                                                                                                             

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



                                                                                                                

all authority in the area, to the exclusion of direct citizen legislation through initiative  



                            38  

                                 We recognized that "given the importance of the right of initiative  

and referendum."                                                                                                 



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

                                                                        

cannot be addressed through the exercise of those rights."39  



                     The Borough's position, if adopted here, would impermissibly limit the  

                                                                                                      



referendum power.  The Alaska Constitution expressly empowers voters to nullify the  



                                                                                            40  

exercise of legislative power by rejecting legislative acts.                                     And the legislature has no  



                                                                       41  

authority  to  restrict  the  referendum  power.                              Alaska  Statute  29.26.100  extends  the  

                                        



referendum power to the acts of local governments and similarly does not authorize local  

                                                            



legislative authorities to restrict that power.  Because many statutes delegate authority  

                                                                                        



specifically to an "assembly" or other governing body, holding that enactments pursuant  

                                                             



to  such  authority  are  not  subject  to  referendum  would  impose  a  significant  and  

                                                                                                 



unwarranted restriction on the referendum power.  



                                                                                                                

                     Because Referendum 2010-01 does not conflict with or exceed the scope  



of the power granted to the Borough Assembly by AS 29.45.700(a) to authorize general  



           37        Id.
  



           38        Id.
  



           39        Id.
  



           40        See   Alaska Const. art. XI,  1 ("The people may . . . reject acts of the                                   



legislature by the referendum.").  



           41        Id.  



                                                                  -14-                                                             6934
  


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

law cities to collect certain taxes, we conclude that Referendum 2010-01 would not be       



unenforceable as a matter of law.  



V.       CONCLUSION  



                   For the reasons discussed, we REVERSE the superior court's judgment.  



                                                            -15-                                                  6934
  

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