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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Marcy v. Matanuska-Susitna Borough (9/28/2018) sp-7306

Marcy v. Matanuska-Susitna Borough (9/28/2018) sp-7306

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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  



                      THE SUPREME COURT OF THE STATE OF ALASKA                                      

RONDA  MARCY,                                                   )  

                                                                )    Supreme  Court  No.  S-16617  

                                Appellant,                      )  


                                                                )    Superior Court No. 3PA-16-01952 CI  

           v.                                                   )  


                                                                )    O P I N I O N  

MATANUSKA-SUSITNA                                               )  


                                                                )    No. 7306 - September 28, 2018  


                                Appellee.                       )  




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


                     Judicial District, Palmer, David Zwink, Judge pro tem, and  


                     Vanessa White and Jonathan A. Woodman, Judges.  


                     Appearances:              Ronda  Marcy,  pro  se,  Palmer,  Appellant.  




                     Borough Attorney's Office, Palmer, for Appellee.  


                     Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  


                     and Carney, Justices.  


                     WINFREE, Justice.  



                     A borough resident filed suit against the borough and citizens who had  


sponsored a borough ballot initiative prohibiting commercial marijuana businesses. The  


suit, filed 32 days before the borough election, sought declaratory and injunctive relief  


that the initiative was unconstitutional and unlawful and should be removed from the  

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

 election ballot.                                      Given the imminent election, the superior court ordered the case held in                                                                                                                                                                             

 abeyance pending the initiative                                                                                     vote's outcome.                                                 After borough voters rejected the                                                                                

 initiative, the court dismissed the case as moot.                                                                                                                        

                                                The borough resident appeals, arguing that the merits of her declaratory                                                                                                                                                  

judgment claim should be heard under the public interest exception to the mootness                                                                                                                                                                                              

 doctrineand                                 that thesuperior court issued procedurally defective orders, violated her due                                                                                                                                                                            

 process rights, and erroneously awarded attorney's fees against her.                                                                                                                                                                                       We affirm the                              

 superior court because it did not abuse its discretion in its procedural decisions; the                                                                                                                                                                                                               

 resident's due process rights were not violated; we decline to invoke the public interest                                                                                                                                                                                               

 exception to address the moot claims; and the resident failed to properly bring her                                                                                                                                                                                                                  

 attorney's fees appeal.                               

 II.                    FACTS AND PROCEEDINGS                                

                                                In November 2014 Alaskans passed a statewide ballot initiative enacting  


 AS   17.38,   which   became   law   in   February   2015,   generally   legalizing   marijuana.   


 Subsection 210(a) permits local governments to "prohibit the operation of marijuana  


 cultivation  facilities,  marijuana  product  manufacturing  facilities,  marijuana  testing  


 facilities, or retail marijuana stores through the enactment of an ordinance or by a voter  




                                                In May 2015 the Matanuska-Susitna Borough Clerk received a municipal  


 initiative  petition  titled  "Application  for  Ballot  Initiative  to  Prohibit  Marijuana  


 Businesses Except ThoseInvolving Industrial Hemp in theMatanuska-SusitnaBorough"  


 (the Proposed Initiative). After the petition received the requisite number of signatures,  

                         1                      See  AS 17.38.010(a) ("In the interest of allowing law enforcement to focus                                                                                                                                                                     

 on violent and property crimes, and to enhance individual freedom, the people of the                                                                                                                                                                                                                  

 state of Alaska find and declare that the use of marijuana should be legal for persons 21                                                                                                                                                                                                                

 years of age or older.").                             

                                                                                                                                                     -2-                                                                                                                                         7306

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

the Clerk certified the Proposed Initiative for the October 2016 local ballot. In May 2016                                                                                                                                                                                      

the Borough Assembly adopted an ordinance establishing a temporary moratorium on     

marijuana establishments pending the Proposed Initiative's October election outcome.                                                                                                                                                                             

                                             RondaMarcy, aBorough resident, had taken steps                                                                                                                     after AS17.38's                                       passage  

to open a marijuana business; she purchased greenhouses, moved them to her property,                                                                                                                                                                              

and outfitted them to grow marijuana.                                                                                            She was appointed to the Borough's Marijuana                                                                                 

Advisory Committee, which was tasked with reporting public hearing comments and                                                                                                                                                                                                     

opinions to the Borough's Planning Committee and the Borough Assembly.                                                                                                                                                                                                  Marcy  

attended   hearings   on   both   the   Proposed   Initiative   and   the   proposed   moratorium  

ordinance,   and   at   a   February   2016   meeting   she   received   a   copy   of   the   Proposed  


                                             On September 2 - only 32 days before the election - Marcy filed a                                                                                                                                                                             

complaint for declaratory judgment and injunctive relief accompanied by a motion for                                    


expedited consideration against the Borough and the Proposed Initiative's 14 sponsors.                                                                                                                                                                                                              

Marcy sought injunctive relief "to prevent [the Proposed Initiative] from being placed  


before the voters, to have [it] removed from the Ballot, and to prevent any votes from  


being counted on the [Proposed Initiative], until after this matter is resolved."  Marcy  


also sought declaratory relief on claims that the Proposed Initiative was constitutionally  


and  statutorily  prohibited;  that  AS  17.38.210(a),  authorizing  local  governments  to  


prohibit   the   operation   of   marijuana   businesses   through   voter   initiative,   was  


unconstitutional; that both the Proposed Initiative and the moratorium ordinance were  


unconstitutional property takings; and that it was error for the Borough Clerk to have  


certified the Proposed Initiative for the ballot. Superior Court Judge Vanessa White was  


                      2                      The  Borough  is  the  only  defendant  participating  in  this  appeal.  

                                                                                                                                            -3-                                                                                                                                               7306  

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

assigned the case.                                      The court granted expedited consideration, and the Borough timely                                                                                                                           

responded on September 19.                                                    

                                         On September 22 Judge White assigned the case to Superior Court Judge                                                                                                                                       

pro tem David Zwink; Judge White and Judge Zwink ordered the case held in abeyance                                                                                                                                                         

pending the October 4 election results. The court explained that absentee voting already                                                                                                                                                         

had   begun   and   that   any   relief   available   before   the   election   "would  be   inherently  

disruptive and prejudicial to the ordinary voting process already in progress."                                                                                                                                                                  Marcy  

moved for reconsideration, or in the alternative a stay pending interlocutory appeal, on                                                                                                                                                                        

 September 28; Judge White denied her motion the following day. Judge White reiterated                                                                                                                                                     

that both orders were entered without prejudice, that Marcy was entitled to amend her  

complaint, and that Marcy could seek injunctive relief to stay implementation of the                                                                                                                                                                         

Proposed Initiative if it passed or could assert the public interest exception to try to                                                                                                                                                                         

litigate claims that appeared facially moot if the Proposed Initiative failed.                                                                                                                                                      

                                         The Proposed Initiative was rejected by Borough voters in the October 4   

                          3  three days later Judge Zwink issued a notice of intent to dismiss the case as  


moot and invited the parties to file written objections.  Marcy objected, the Borough  


requested the case be dismissed, and Marcy filed a reply. For reasons not apparent from  


the record, the case then was reassigned to Superior Court Judge Jonathan A. Woodman.  


The reassignment notice apparently was not served on the parties.  


                                         In late January 2017 Judge Woodman ordered the matter dismissed with  


prejudice for "the reasons presented" in the Borough's response to the court's earlier  


dismissal notice and permitted the Borough to seek attorney's fees and costs.   The  


following week the Borough requested final judgment and attorney's fees and costs.  




                                         The Borough Assembly's moratorium on marijuana businesses expired on  


October 19.  

                                                                                                                                -4-                                                                                                                      7306  

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

Marcy sought reconsideration of the dismissal and a stay of the Borough's attorney's                                                                                                                                                                                      

fees and costs request, styled as a motion to stay the execution of judgment.                                                                                                                                                                                             The court   

promptly denied Marcy's motions as moot.                                                                                                                 

                                               Marcy appealed in mid-February, asserting that the superior court erred by:                                                                                                                                                                                       

granting the abeyance; issuing a notice to dismiss the case as moot; ordering the case                                                                                                                                                                                                        

dismissed; failing to provide findings of fact and conclusions of law in its dismissal order                                                                                                                                                                                                

and reconsideration order; failing to notify Marcy the case had been reassigned to Judge                                                                                                                                                                                                  

Woodman; awarding the Borough attorney's fees; and violating her due process rights.                                                                                                                                                                                                                             

                                               In March the superior court issued its final judgment and awarded the                                                                                                                                                                              

Borough attorney's fees.                                                                  Neither party supplemented the appellate record to include                                                                                                                               

these orders.                                 

III.                    STANDARD OF REVIEW                                              

                                               The superior court's procedural decisions generally are reviewed for abuse                                                                                                                                                                 

                                              4   "Whether there was a violation of due process is a question of law, which  

of discretion.                                                                                                                                                                                                                                                                          

we review de novo."5                                                                                                                                                                                                                                  6  


                                                                                We also review questions of mootness de novo. 

IV.                    DISCUSSION  

                                               Marcy alleges that the superior court committed a variety of errors when  


denying  her  requests  for  declaratory  and  injunctive  relief  removing  the  Proposed  


Initiative from the October 2016 ballot.  Marcy also contends the court made several  


                       4                      Mullins v. Local Boundary Comm'n                                                                                               , 226 P.3d 1012, 1015 (Alaska 2010)                                                                         

(citing   Walker v. Walker                                                            , 151 P.3d 444, 447 (Alaska 2007)).                                                                

                       5                      Patrick v. Municipality of Anchorage, Anchorage Transp. Comm'n, 305  


P.3d 292, 297  (Alaska 2013) (citing D.M. v. State, Div. of Family & Youth Servs ., 995  


P.2d 205, 207 (Alaska 2000)).  


                       6                      Mullins, 226 P.3d at 1015 (citing Akpik v. State, Office of Mgmt. &Budget ,  


 115 P.3d 532, 534 (Alaska 2005)).  


                                                                                                                                                  -5-                                                                                                                                        7306

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

procedural errors, asubstantiveerror,                                                                                                                         andanerroneousattorney's fees                                                                                                            award against                                               her.   

We address each category in turn.                                                                                             

                             A.                          Alleged Procedural Errors                                                                  

                                                          Marcy contends that the superior court made several procedural errors,                                                                                                                                                                                                                       

including wrongfully issuing an order holding the case in abeyance pending the outcome                                                                                                                                                                                                                                                         

of the election; wrongfully issuing a notice of intent to dismiss the lawsuit after the                                                                                                                                                                                                                                                                              

Proposed Initiative failed on the ballot; failing to include findings of fact and conclusions                                                                                                                                                                                                                                     

of law in its dismissal order; and not providing her notice of the judicial reassignment                                                                                                                                                                                                                                  

prior to the case being dismissed.                                                                                                                          Marcy argues that some of these alleged errors                                                                                                                                               

violated her constitutional rights and require us to reverse the dismissal of her appeal.                                                                                                                                                                                                                                                                                          

                                                          1.                          It was not an abuse of discretion to issue the abeyance order.                                                                                                                                                                                                                           

                                                          First, we reiterate that "[p]rior to [an] election, courts will review only the                                                                                                                                                                                                                              

question whetheran initiativemeets                                                                                                                      theconstitutional and statutoryprovisionsregulating                                                                                                                               



                                                          The primary thrust of Marcy's challenge - that the Proposed Initiative is  


an unconstitutional taking and zoning by initiative - is not such a challenge; it is a  


 substantive challenge.  Although "courts are . . . empowered to conduct pre-election  


review of initiatives where the initiative is clearly unconstitutional or clearly unlawful,"  


it  is  not  clear  that  Marcy  presented  a  valid  pre-election  challenge  to  the  Proposed  



Initiative.                                         Because "[c]ourts will not review the constitutionality of the substantive  

                             7                           Kodiak Island Borough v. Mahoney                                                                                                                            , 71 P.3d 896, 898 (Alaska 2003).                                                                                                                  

                             8                            Cf. Alaskans for Efficient Gov't, Inc. v. State                                                                                                                                                           , 153 P.3d 296, 298, 302                                                                      

(Alaska 2007) (reviewing proposed initiative to create supermajority requirement and                                                                                                                                                                                                                                                                                

concluding that lieutenant governor properly rejected initiative "for failing to comply  


with constitutional provisions regulating initiatives" (quoting                                                                                                                                                                                                         State v. Trust the People                                                                                 ,  

 113 P.3d 613, 614 n.1 (Alaska 2005))).  


                                                                                                                                                                                     -6-                                                                                                                                                                        7306

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

initiative proposal until and unless the voters pass the ordinance," the superior court did                                                                                                              


not abuse its discretion by holding the case in abeyance pending the election results.                                                                                                                         

                                Second, even if Marcy presented legitimate pre-election challenge issues,  


"where an impending election is imminent and . . . election machinery is already in  


progress, equitable considerations might justify a court in withholding the granting of  


immediately effective relief."10  Herethe Borough's "election machinery" was in process  


as early as August 22 - 11 days before Marcy's complaint -  when voting machine  


programming cards were delivered to the Borough.  On August 25 - more than a week  


before Marcy's complaint - 69,875 printed ballots corresponding to the programming  


cards were delivered for the Borough's election equipment.  By the time the Borough  


filed its expedited answer on September 19, absentee voting had begun.  


                                Marcy argues that, in the 13 days "between the time the complaint was filed  


and the absentee ballots were mailed out," the superior court could have "granted the  


injunction, . . . ordered the [Proposed Initiative] removed from the ballot, . . . prevented  


any vote on the [Proposed Initiative], and[/or] . . . ordered the votes sealed and not  


counted if it was voted on, pending resolution of the matters in the complaint." The first  


                9               See Mahoney                      , 71 P.3d at 898;                       see also Pebble Ltd. P'ship v. Parnell                                                      , 215   

P.3d 1064, 1077 (Alaska 2009) ("We have long recognized that '[t]he general rule is that                                                                                                                

a court should not determine the constitutionality of an initiative unless and until it is                                                                                                                   

enacted.' " (alteration in original) (quoting                                                              Alaskans for Efficient Gov't                                          , 153 P.3d at              


                10               Wade  v.  Nolan,  414  P.2d 689,  703-04  (Alaska 1966)  (Rabinowitz,  J.,  


concurring) (emphasis omitted) (quoting Reynolds v. Sims, 377 U.S. 533, 585 (1964))  


(noting that a court should consider upcoming election and state election laws, then act  


on equitable principles).  


                                                                                                     -7-                                                                                             7306

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

three propositions would have resulted in "a great disruption to the election process"                                                                                                                       11  


because, as the Borough Clerk explained, there was not sufficient time to reprogram the  


voting machine memory cards before the election without "call[ing] into question the  


results of all other questions on the ballot." The fourth option, ordering the votes sealed,  


would have resulted in practically the same effect as "a prohibitory injunction staying  


enforcement of theballot measure ifit passes," which the superior court explained Marcy  


could pursue if the Proposed Initiative passed.  


                                It was not an abuse of discretion to order the case held in abeyance pending  


the ballot results; no enduring harm or prejudice resulted because - even if Marcy had  


presented a valid pre-election challenge to the Proposed Initiative - the challenged  


issues could have been addressed immediately following the election had the Proposed  




Initiative passed. 

                                Marcy also argues that the abeyance order "denied her constitutional rights  


of due process."  We disagree; Marcy was not denied her "opportunity to be heard and  


                11              See In re 2011 Redistricting Cases                                                   , 294 P.3d 1032, 1049 (Alaska 2012)                                          

(Matthews, J., dissenting) (quoting                                                 In re 2011 Redistricting Cases                                          , No. S-14721 (Alaska              

 Supreme   Court   Order,   May   22,   2012)  (rejecting   redistricting   plan   in   part   because  

changes   to   districts   were   so   late   in   the   election   process   that   it   would   cause   great  

disruption));  see also Pebble Ltd. P'ship ex rel. Pebble Mines Corp. v. Lake &Peninsula                                                                                                 

Borough, 262 P.3d 598, 602 (Alaska 2011) (Stowers, J., concurring) (explaining there                                                                                                                 

was "no realistic way" to have full briefing, have oral argument, and issue appellate                                                                                                      

decision remanding for expedited decision on pre-election initiative challenge issues                                                                                                             

superior court had failed to reach before borough was required to mail absentee ballots                                                                                                          

for election seven weeks away).                               

                12              See Lake & Peninsula Borough, 262 P.3d at 602 (Stowers, J., concurring)  


("Because all of these pre-election challenge issues - as well as any new post-election  


issues - can be  raised on appeal following the Borough election, and because no  


enduring harm will result from denying the emergency petition for review, I think it  


acceptable (though certainly not optimal) to deny the petition and allow the voters to  


express their views on the initiative.").  


                                                                                                     -8-                                                                                             7306

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

the right to adequately represent [her] interests" because she had multiple opportunities                                                         


to represent her interests.                                                                                                                               

                                                      Marcy had her opportunity to be heard through an expedited  


motion for reconsideration and through interlocutory petition to this court. The superior  


court addressed her motions expeditiously; it neither abused its discretion nor violated  


her due process rights by placing the case in abeyance due to the impending election.  


                           2.	          It was not an abuse of discretion to issue the notice of intent to  


                                        dismiss the case as moot.  


                           Marcy next argues thesuperior court erred when it issued its noticeofintent  


to dismiss the case as moot following the Proposed Initiative's defeat on the ballot.  But  


it was not an abuse of discretion to sua sponte raise the issue of mootness and request  


briefing because "[t]he court inherently possesses the power to request briefing on issues  



which  come  to  its  attention."                                                                                                                        

                                                                     Marcy's  action  to  declare  the  Proposed  Initiative  


unconstitutional  and  remove  it  from  the  ballot  became  moot  after  Borough  voters  


rejected the Proposed Initiative.  Marcy does not demonstrate how the court's notice,  


which provided her the opportunity to brief the issue, resulted in prejudice requiring  



                        Marcy also argues the superior court violated her due process rights by  


issuing its notice of intent to dismiss for mootness and its order dismissing the case. We  


disagree; in response to the court's notice of intent to dismiss Marcy filed both an  

             13            SeePatrickv. Municipalityof                              Anchorage,AnchorageTransp.Comm'n                                               ,305   

P.3d 292, 298 (Alaska 2013) (quoting                                        D.M. v. State, Div. of Family &Youth Servs.                                           , 995   

P.2d 205, 213-14 (Alaska 2000)).                     

             14            See Bowers Office Prods., Inc. v. Univ. of Alaska, 755 P.2d 1095, 1096 n.3  


(Alaska 1988).  


             15            See Mullins v. Local Boundary Comm'n, 226 P.3d 1012, 1016 n.4 (Alaska  


2010) ("Even [where]discretionis abused, reversal will be required only upon a showing  


of prejudice." (alteration in original) (quoting Boggess v. State, 783 P.2d 1173, 1182  


(Alaska App. 1989))).  


                                                                                   -9-	                                                                           7306

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

objection and a reply to the Borough's response, and following the court's dismissal                                                                                                       

order she filed a motion for reconsideration.                                                                 The court's decision to issue a notice of                                                      

intent to dismiss the case as moot following the failed passage of the Proposed Initiative                                                                                                  

thus was neither an abuse of discretion nor a violation of due process; it instead provided                                                                                                  

Marcy another opportunity to be heard.                                                          16  


                                3.	             It was not an abuse of discretion to issue the dismissal without  


                                                 findings of fact and conclusions of law.  


                                Marcy next argues the superior court erred by failing to make findings of  


fact and conclusions of law as required by Alaska Civil Rule 52(a) in its dismissal order.  


We disagree. Findings and conclusions were not required for the dismissal order, which  



was not an adjudication on the merits of Marcy's claim.                                                                                            Second, the court's order  


incorporated the reasoning in the Borough's response to the court's dismissal notice.  


                                4.	             Marcy hadnoticeandopportunitytopreemptJudgeWoodman.  


                                Marcy finally argues that "[i]t was error for the order of dismissal with  


prejudice to be entered, when the case was still unassigned, according to the electronic  


docket," and that she "was denied her constitutional and statutory right to notice and an  

                16              See Patrick                 , 305 P.3d at 298 ("We have held that '[t]he crux of due process                                                                    

is [the] opportunity to be heard and the right to adequately represent one's interests.' "                                                                                                                          

(alterations in original) (quoting                                             D.M., 995 P.2d at 213-14)).                   

                17              See Alaska R. Civ. P. 52(a) ("Findings of fact and conclusions of law are  


unnecessary on decisions of motions under Rule 12 or 56 or any other motion except as  


provided in Rule 41(b)." (emphasis added)); Alaska R. Civ. P. 41(b) ("If the court  


renders judgment on the merits against the plaintiff, the court shall make findings as  


provided in Rule 52(a).").  


                                Marcy similarly asserted in her opening brief that "[i]t was error for the  


 [superior]  court  to  deny  reconsideration,  without  reason  or  cause  and  without  any  


findings of fact and conclusions of law."  But she abandoned this argument in her reply  



                                                                                                    -10-	                                                                                             7306

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

 opportunity to move to preempt, or move to recuse, the judge."                                                                                     The Borough contends             

 this argument is waived because Marcy failed to raise this issue below, the issue does not                                                                                                        

 fit into an exception for consideration, and, in the alternative, the dismissal order was not                                                                                                     

plain error because Marcy had actual notice of the assignment when the order was issued                                                                                                     

but   failed   to   raise   a   peremptory  challenge   in,   or   in   addition   to,   her   motion   for  

reconsideration.   We agree that Marcy failed to timely raise the argument below.                                                                                            

                                Marcy    failed    to    timely    peremptorily    challenge    Judge    Woodman's  

                                                                                                         18       She  received  actual  notice  of  Judge  

 assignment   under   Alaska   Civil   Rule   42(c).                                                                                                                                       

 Woodman's assignment to her case in January 2017 when  she received his signed  


 dismissal order, but she did not file or raise a peremptory challenge within five days as  


 allowed by the rule.19   Marcy instead filed motions in February seeking reconsideration  


 and an execution of judgment stay, thus waiving her right to peremptorily challenge  


 Judge Woodman because she "knowingly participat[ed] before that judge in . . . [a]  


judicial  proceeding  which  concerns  the  merits  of  the  action  and  involves  the  


 consideration of evidence or of affidavits."20  


                                Marcy also had the opportunity to file a motion to recuse or disqualify  


 Judge Woodman for cause,21  but she did not do so.  We see no error.  


                B.             Alleged Substantive Error - Dismissal For Mootness  


                18             See   Alaska R. Civ. P. 42(c) (providing litigants a change of judge as a                                                                                        

 matter of right).      

                19             See Alaska R. Civ. P. 42(c)(3) ("Failure to file a timely notice precludes  


 change of judge as a matter  of right.                                                        Notice  of  change of judge is timely if filed  


 . . . within five days after notice that the case has been assigned to a specific judge.").  


                20             See Alaska R. Civ. P. 42(c)(4)(i) (listing causes for disqualification and  


 directing that "right to change as a matter of right a judge" is waived by participation).  


                21             See AS 22.20.020.  


                                                                                                -11-                                                                                          7306

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

                                     Marcy   requested   declaratory   relief   that   the   Proposed   Initiative   was  

unconstitutional for a variety of reasons and that it violated statutes prohibiting zoning                                                                                                                                 

by initiative. Marcy wants those issues decided. But because the Proposed Initiative was                                                                                                                                            

not enacted by the Borough voters and there is no live controversy, under our precedent                                                                                                                            


we refrain from determining its constitutionality and compliance with statutes.                                                                                                                                                

                                     Marcy argues that the Proposed Initiative's constitutionality merits review  


under the public interest exception to the mootness doctrine.  She contends our review  


would avoid "the needless repetition that could open floodgates of litigation to correct  


 [similar initiatives] now being circulated for signatures."  In determining whether the  


public interest exception applies, we consider:   "(1) whether the disputed issues are  


 capable of repetition, (2) whether the mootness doctrine, if applied, may repeatedly  


 circumvent review of the issues, and (3) whether the issues presented are so important  


to the public interest as to justify overriding the mootness doctrine."23  


                                     Reviewing Marcy's constitutional challenges to the Proposed Initiative to  


 avoid litigating similar initiatives is not so important to the public interest as to justify  


 overriding the mootness doctrine, because those unknown initiatives simply are not  


                   22                "We have established a 'general rule . . . that a court should not determine                                                                                                  

the constitutionality of an initiative unless and until it is enacted.' "                                                                                                                   Mullins v. Local  

Boundary Comm'n                                      , 226 P.3d 1012, 1021 n.39 (Alaska2010) (alterationin                                                                                              original) (first   

 quoting  State v. Trust the People                                                       , 113 P.3d 613, 614 n.1 (Alaska 2005); and then citing                                                                               

Kodiak Island Borough v. Mahoney                                                                  , 71 P.3d 896, 898 (Alaska 2003);                                                           Brooks v. Wright                              ,  

 971 P.2d 1025, 1027 (Alaska 1999)).                                                                      

                   23                Mullins, 226 P.3d at 1018 (quoting  Ulmer v. Alaska Rest. & Beverage  


Ass'n , 33 P.3d 773, 777-78 (Alaska 2001)); see, e.g., Peloza v. Freas, 871 P.2d 687, 688  


 (Alaska1994) (reviewing pre-electionchallengeotherwisemoot by election under public  


 interest exception); Falke v. State, 717 P.2d 369, 371 (Alaska 1986) (same).  


                                                                                                                  -12-                                                                                                          7306

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

before us.24  An opinion on the Proposed Initiative's constitutionality would be purely  

advisory at best and inapplicable at worst.25  

                                                                                                 We believe it best to wait for a proposed or                                               

actual law challenge grounded on real facts so that our decision is properly focused and                                                                                                 

avoids any unintended consequences.                                                  Therefore, the public interest exception does not                                                   

persuade us to review Marcy's moot constitutional and statutory claims.                                                                                         26  

               C.             Borough's Attorney's Fees Award  


                              The parties dispute whether it was appropriate for the superior court to  


award the Borough attorney's fees, but the issue is not properly before us. Under Alaska  


               24             See Ahtna Tene Nené                             v. State, Dep't of Fish & Game                                       , 288 P.3d 452, 457-               

58   (Alaska   2012)   ("Even   in   a   declaratory   judgment   case   .   .   .   where   the   rights   or  

obligations of                 parties are delineated by the court, courts should avoid becoming involved                                                                    

in premature adjudication of disputes that are uncertain to occur." (alteration in original)                                                                                  

(quoting   Ulmer, 33 P.3d at 776)).                           

               25             See Ulmer, 33 P.3d at 779.  


               26             Marcy  also  had  requested  that  the  Borough  Assembly's  moratorium  


prohibiting the processing of applications for operation of marijuana establishments in  


the five months preceding the election pending the Proposed Initiative's outcome be  


declared an unconstitutional taking.   But the Borough contended in its response to  


Marcy's objection to the court's notice of intent to dismiss the case as moot that her  


takings claim was "not before the court" because she had expressly reserved the right to  


"present [her] losses and damages . . . in a separate taking[s] action."  The court noted  

"the reasons presented in the Borough's Response" in support of its dismissal order.  


(Emphasis in original.)  We presume from this that the court saw no need to address the  


merits  of  the  declaratory  relief  claim  about  the  underlying  takings  action  because  


"[d]eclaratory relief is a 'nonobligatory remedy' " that " 'create[s] an opportunity, rather  


than a duty' for . . . courts to grant relief to qualifying litigants."  Lowell v. Hayes, 117  


P.3d 745, 756 (Alaska 2005) (quoting  Wilton v. Seven Falls Co., 515 U.S. 277, 288  


(1995)). Although a takings claim would not be moot because it would not be premised  


on the Proposed Initiative's passage, the dismissal of Marcy's declaratory relief claim  


would  not  seem  to  affect  Marcy's  apparently  preserved  right  to  bring  "a  separate  


taking[s] action."  


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Appellate Rule 210(a), "the record does not include documents or exhibits filed after . . .                                                                                                                                                                                                                                 

the filing date of the notice of appeal."  Marcy filed this appeal on February 14, 2017.                                                                                                                                                                                                                                            

Although the Borough filed its attorney's fees motion on January 31, the court did not                                                                                                                                                                              

enter the attorney's fees and costs award until March 28.                                                                                                                                                              Prior to Marcy's appeal she                                                                   

had filed a motion to stay execution of judgment pending her motion for reconsideration,                                                                                                                                                                               

which the court denied; she then apparently never opposed the Borough's motion on the                                                                                                                                                                                                                                  

merits.     Because   Marcy   apparently   failed   to   oppose   the   motion  and   neither   party  

                                                                                                                                                                                                                 27  we are unable to review the  

requested that the court's order be added to the record,                                                                                                                                                                                                                                                              

merits of the superior court's decision.28  


V.                       CONCLUSION  

                                                  The superior court's judgment is AFFIRMED.  


                         27                       See  Alaska R. App. P. 210(i)(1) ("Materials . . . filed with the trial court                                                                                                                                                                               

after the filing date of the notice of appeal may be added to the record on appeal only                                                                                                                                                                                                                          

upon motion designating by title, description, and filing date the materials sought to be                                                                                                                                                                                                                                

added, and are limited to the following: . . . materials pertaining to attorney's fees, costs,                                                                                                                                                                                                               

or prejudgment interest . . . .").                                                             

                         28                       See David S. v. State, Dep't of Health & Soc. Servs. Office of Children's  


Servs., 270 P.3d 767, 783 (Alaska 2012) (refusing to consider fact subsequent to appeal  


because "Appellate Rule 210(a) provides that 'the record does not include documents or  


exhibits filed after . . . the filing date of the notice of appeal' ").  


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