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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bragg v. Matanuska-Susitna Borough (08/29/2008) sp-6303
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| NOLA BRAGG and LINK FANNON, | ) |
| ) Supreme Court Nos. S- 12576/12596 | |
| Appellants and | ) |
| Cross-Appellees, | ) Superior Court No. 3PA-05-01894 CI |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| MATANUSKA-SUSITNA | ) No. 6303 August 29, 2008 |
| BOROUGH, | ) |
| ) | |
| Appellee and | ) |
| Cross-Appellant, | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Palmer,
Beverly W. Cutler, Judge.
Appearances: Kenneth P. Jacobus, Kenneth P.
Jacobus, P.C., Anchorage, for
Appellants/Cross-Appellees. Nicholas
Spiropoulos, Borough Attorney, Palmer, for
Appellee/Cross-Appellant.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
FABE, Chief Justice.
I. INTRODUCTION
Nola Bragg and Link Fannon, residents of the Matanuska-
Susitna Borough, appeal the superior courts order upholding the
legality of the Boroughs tax on cigarettes and other tobacco
products. They argue (1) that under AS 29.35.170, the Borough
lacks authority to levy an excise tax or any other type of duty
apart from property, sales, and use taxes; and (2) that to the
extent that the Boroughs tobacco tax falls within the multistate
tax compacts definition of sales tax,1 it cannot remain in force
without voter ratification. The Borough cross-appeals the
superior courts decision to rule on the merits of Bragg and
Fannons complaint, arguing that the appellants lack standing.
Bragg and Fannon qualify for citizen-taxpayer standing, but
nothing in the statutes or our case law interpreting them
prohibits the Boroughs tobacco tax. We therefore affirm.
II. FACTS AND PROCEEDINGS
A. Facts
On May 17, 2005, the Matanuska-Susitna Borough Assembly
adopted Ordinance 05-068. The ordinance establishes a self-
described excise tax on tobacco, assessing fifty mils per
cigarette and forty-five percent of the wholesale price of all
other tobacco products. The incidence of the tax falls on
the person who:
(1) first acquires the cigarettes or
other tobacco products within the borough;
(2) brings or causes cigarettes or
other tobacco products to be brought into the
borough;
(3) makes, manufactures, or fabricates
cigarettes or other tobacco products in the
borough; or
(4) ships or transports cigarettes or
other tobacco products into the borough.[2]
The Borough has stipulated that the ordinance imposed a new tax
without voter ratification.
After the tax took effect, Nola Bragg, a voter and
resident of the Borough and a smoker, successfully petitioned to
place a tax repeal measure on the October 4, 2005 ballot. That
measure failed by some 2,000 votes.
B. Proceedings
On November 16, 2005, Nola Bragg and Link Fannon filed
suit. Their complaint alleged that [t]his excise tax is not a
property tax, sales tax, or use tax, and is outside of the
authority of the Borough to levy and collect. Alternatively,
they asserted in their complaint that [i]f this excise tax is a
sales or use tax, then it cannot be levied and collected without
first submitting the tax to the voters for ratification. Bragg
and Fannon maintained that the Boroughs unauthorized taxation
violated taxpayers constitutionally protected right to due
process of law and requested injunctive relief requiring a refund
of previously collected taxes.
The Borough answered Bragg and Fannons complaint on
December 7, 2005, standing by the legality of its tobacco tax and
relying on a number of affirmative defenses, including a
challenge to Bragg and Fannons standing to bring their suit.
Bragg and Fannon moved for summary judgment on January 11, 2006,
and the Borough filed its opposition and cross-motion for summary
judgment soon afterwards.
During oral argument on the cross-motions, Superior
Court Judge Beverly W. Cutler sought to clarify the basis upon
which Bragg and Fannon claimed standing after their counsel
admitted that neither claimant sells, transports, or manufactures
tobacco products and that only Bragg smokes. In response to
questioning, counsel for Bragg and Fannon maintained that any
resident of the Borough would have the standing to make the same
argument.
On August 8, 2006, the superior court issued its
decision granting the Boroughs motion for summary judgment. The
court began by [a]ssuming (without deciding) that plaintiffs have
citizen-taxpayer standing to bring this action, despite its
observation that Bragg and Fannon had not submitted documentary
materials to demonstrate that they are voters and residents of
the Borough nor otherwise supplemented their pleadings to
establish standing of any kind. The court then went on to find[]
as a matter of law that the Borough presently is authorized to
assess and collect the disputed tax. Specifically, the court
agreed with the Borough that the disputed tax falls within the
general taxation powers of municipal government.
The superior court based its finding on a long history
of Alaska Supreme Court precedent broadly interpreting municipal
taxation powers. In particular, the court referred to our
decisions in Liberati v. Bristol Bay Borough3 and City of St.
Marys v. St. Marys Native Corp.,4 in which we held that article
X, section 1 of the Alaska Constitution restrains us from
implying limitations on the taxing authority of a municipality
where none are expressed. 5 The trial court reasoned that Bragg
and Fannon had failed to demonstrate an express limitation on the
Boroughs taxing authority and that Liberati and St. Marys
prevented the court from implying such a limitation.
Finally, the superior court held that the tobacco tax
did not require voter ratification. In doing so, the court
appears to have adopted the Boroughs characterization of the tax
as an excise tax. The superior court pointed out that Bragg and
Fannon cite no authority in support of their argument that the
tax was required to be put to a vote prior to the Boroughs
assessment and collection, and that in fact, they relegated their
entire argument on the issue to a single sentence in their
memorandum in support of summary judgment. The superior court
thus adopted the Boroughs arguments that no initial vote was
required, but nonetheless observe[d] that a petition to repeal
the enabling ordinance was defeated at the polls.
Bragg and Fannon appeal the superior courts summary
judgment ruling, and the Borough cross-appeals the superior
courts recognition of Bragg and Fannons standing to sue.
III. STANDARD OF REVIEW
We review de novo a superior courts grant of summary
judgment.6 This review applies to constitutional issues and any
other questions of law,7 including [q]uestions of standing to sue
and the validity of an ordinance adopted without voter approval.8
We will uphold a grant of summary judgment when the record
presents no genuine issue of material fact and one party is
entitled to judgment as a matter of law.9
IV. DISCUSSION
Bragg and Fannon argue that AS 29.25.170(a) allows the
Borough to only assess and collect property taxes, sales taxes,
and use taxes. They contend that, as an excise tax, the fifty-
mil per-cigarette tariff falls outside of the Boroughs taxing
authority. They characterize the forty-five percent tax on other
tobacco products as a sales tax, requiring voter ratification
under AS 29.45.670 before the Borough may lawfully assess and
collect the tax. The Borough cross-appeals on the question
whether Bragg and Fannon have standing, maintaining that only
plaintiffs upon whom the legal incidence of the tax falls may
bring suit to challenge the tax.
A. The Superior Court Did Not Err in Reaching the Merits
of the Case.
The superior court assumed without deciding that Bragg
and Fannon have citizen-taxpayer standing to bring their action.
In North Kenai Peninsula Road Maintenance Service Area v. Kenai
Peninsula Borough, however, we intimated that lower courts may
not skip the standing inquiry.10 We therefore address standing as
a preliminary matter.
The concept of standing has been interpreted broadly in
Alaska.11 For citizen-taxpayer standing, the doctrine most
applicable to Bragg and Fannon, we have set out three criteria:
First, the case must be one of public
significance. Second, the plaintiff must be
appropriate. This means that the plaintiff
must have an adverse interest. If another
party is more directly affected by the
outcome, the plaintiff may be denied
standing. Finally, the plaintiff must
capably and competently represent the
position asserted.[12]
The Borough urges us to hold that Bragg and Fannon lack standing
because their case is of insufficient public significance and
because Bragg and Fannon are inappropriate plaintiffs. We
disagree.
First, the Borough argues that the tax fails to rise to
the level of public significance because only distributors,
wholesalers and manufacturers pay the tax. The Borough argues
that the refund of all tobacco taxes already collected, which
Bragg and Fannon sought in their complaint, concerns only the few
entities which will receive a financial benefit if the plaintiffs
prevail, and therefore, this is not a matter of public concern
such that plaintiffs should be allowed standing.
Our case law, however, does not define matters of
public concern so narrowly. For example, in Gilman v. Martin, we
upheld residents standing to challenge a boroughs land sale
ordinance, stating that [a]ny resident or taxpayer of a
municipality has a sufficient interest in the disposition of a
significant number of acres of the municipalitys land to seek a
declaratory judgment as to the validity of the disposition.13 Our
holding in Gilman makes clear that while a challenged transaction
must be significant for citizen-taxpayer standing to apply, it
need not directly involve the litigants.14 Here, the Borough
estimated that it would spend sixty thousand dollars to collect
revenues of over four and a half million dollars each year from
its tobacco tax. Thus, while only a small number of businesses
may directly pay the tobacco tax, the tax appears to implicate
matters of significant public concern.15
Second, the Borough argues that Bragg and Fannon lack
standing because they are not taxpayers under this tax. But we
have only denied citizen-taxpayer standing where a claimant paid
no taxes whatsoever.16 The Borough does not dispute that both
Bragg and Fannon are taxpayers in the sense that they pay various
taxes to the Borough as residents of the Borough.17 But the
Borough ignores any general interest that Bragg and Fannon might
claim in assuring that the Borough adheres to the laws governing
its power to assess and collect taxes. Rather, the Borough
contends that Bragg and Fannon lack standing because they have
not shown that they pay any portion of the [tobacco] tax because
there is no evidence that the tax is, in fact, passed on.
According to the Borough, because [d]istributors, wholesalers and
manufacturers may pass on all, part or none of this tax, only a
tobacco distributor, wholesaler, or manufacturer may bring this
challenge.
But the Boroughs assertion that the tax might not
translate into higher retail tobacco prices strains credulity.
The Boroughs own information memorandum highlights the
significant health related benefits associated with a cigarette
and tobacco products tax. Presumably these benefits will follow
a decrease in tobacco use caused by increased retail prices. The
information memorandum also predicts that the tobacco tax will
diversify revenues, help alleviate the real property tax burden,
and provide an additional source of funds for education.
Although profit-minded businesses may pay part of this predicted
increase in taxes, they may also rely in part on the relatively
inelastic demand of tobacco consumers,18 who as Bragg and Fannon
point out, are captive to an addictive product. Thus, the
Boroughs argument that individual tobacco consumers cannot sue
because they are not taxed must fail.
Finally, the Borough claims that Bragg and Fannon lack
standing because there are more appropriate plaintiffs who are
willing and able to bring suit, but have not. The Borough points
to Bragg and Fannons assertion in the trial court that several
retailers and distributors were available to join the lawsuit if
necessary. However, while such plaintiffs may be more directly
affected by the challenged conduct in question, the Borough
presented no evidence that they are likely to bring suit.19 And
we have recognized that the mere possibility that [a more
appropriate plaintiff] may sue does not mean that appellants are
inappropriate plaintiffs.20 Moreover, the Boroughs argument
appears to misinterpret the test set out in North Kenai Peninsula
Road Maintenance Service Area that [i]f another party is more
directly affected by the outcome, the plaintiff may be denied
standing.21 The Borough appears to argue that only the most
directly affected parties may bring a claim, otherwise the court
must deny standing. That is not the law.
The Borough cites case law from other jurisdictions in
support of its challenge to Bragg and Fannons standing. For
example, the Borough points to a decision by the Montana Supreme
Court that disallowed a gasoline retailers challenge to a tax
assessed to gasoline distributors.22 And the Borough argues that
an Alabama Supreme Court decision23 upholding a consumers right to
challenge a tax on wine nevertheless advances the Boroughs theory
that Bragg and Fannon lack standing here because they are not
distributors, manufacturers, or anyone else required by law to
pay the tax. Finally, the Borough refers to the United States
Supreme Courts holding in Warth v. Seldin that a collection of
civic organizations, builders, and minority and low-income
individuals did not have standing to challenge an adjacent towns
allegedly discriminatory zoning ordinances.24 The Warth court
reasoned that standing may not be predicated on generalized
grievances.25
The United States Supreme Court, however, has
interpreted the federal constitution to limit standing in a way
that Alaskas constitution does not.26 And even that court has
acknowledged that [t]he person who has been accorded a procedural
right to protect his concrete interests can assert that right
without meeting all the normal standards for redressability and
immediacy.27 The law gives various procedural rights to Borough
taxpayers, such as the right to a referendum,28 before certain
taxes may take effect. To the extent that Bragg and Fannon claim
that the Borough has encroached upon those rights, their standing
rests on a firm basis in the law.
B. The Superior Court Did Not Err in Upholding the
Boroughs Authority To Levy Its Tobacco Tax.
Alaska Statute 29.35.010(6) grants municipalities
general powers, subject to other provisions of law . . . to levy
a tax or special assessment, and impose a lien for its
enforcement. The Alaska Constitution requires that a liberal
construction shall be given to the powers of local government
units.29 And we have interpreted that constitutional imperative
to make explicit the framers intention to overrule a common law
rule of interpretation which required a narrow reading of local
government powers.30 Here, Bragg and Fannon ask us to resurrect
that bygone common law rule. We decline.
Bragg and Fannon point out that the general delegation
of authority under AS 29.35.010(6) is subject to other provisions
of law. In particular, they argue that this general delegation
of authority is subject to a limitation implied by
AS 29.35.170(a). That section mandates that a borough shall
assess and collect property, sales, and use taxes that are levied
in its boundaries, subject to AS 29.45.31 Bragg and Fannon argue
that because no statute makes a similar express delegation of
authority to levy excise taxes, the Borough lacks the authority
to do so.
Bragg and Fannon marshal little support for their
statutory interpretation. They cite Justice Rabinowitzs dissent
in Liberati for the proposition that Alaska law does not empower
boroughs to levy a severance tax. In Liberati, we upheld a
boroughs imposition of a tax on raw fish against a challenge that
the tax impermissibly encroached upon the states exclusive right
to regulate natural resources.32 Bragg and Fannon point out that
the Liberati dissent disputes the majoritys characterization of
the fish tax as a sales tax.33 But neither the majority opinion
nor the dissent in Liberati suggests that a municipality lacks
the authority to levy any tax not expressly contemplated by the
law. Rather, the Liberati dissent theorizes that a tax on raw
fish encroaches upon the states power to regulate natural
resources pursuant to article VIII of the Alaska Constitution.34
Bragg and Fannon cite no parallel constitutional provision
implicated by the Boroughs tax on tobacco.
Bragg and Fannon intimate for the first time in their
reply brief that a distinction between home rule and general law
municipalities may bear some relevance on the Boroughs tax
authority. But AS 29.35.010 grants general powers to all
municipalities. Bragg and Fannon also invoke our holding in
Fairbanks North Star Borough v. Howard that a borough cannot
impose a real property lien to collect sales tax from a
subsequent purchaser.35 The Howard decision, however, hinges on
an established general rule that tax liens arise only through
specific legislative authorization.36 Again, no parallel
restriction on the Boroughs power to levy taxes applies here. In
short, Bragg and Fannon acknowledge that AS 29.35.010(6) grants
local governments broad taxing authority, but they fail to
establish a legal justification for carving the Boroughs tobacco
tax out from that grant of authority.
C. The Superior Court Correctly Held that the Tobacco Tax
Did Not Require Voter Ratification.
Alaska Statute 29.45.670 provides that a new sales and
use tax or an increase in the rate of levy of a sales tax
approved by ordinance does not take effect until ratified by a
majority of the voters at an election. Bragg and Fannon contend
that the Borough seeks to levy an illegal sales tax on tobacco
products other than cigarettes without the required voter
ratification. Bragg and Fannon assert that measuring a tax on
the basis of the taxed commoditys value, i.e., forty-five percent
of the wholesale price,37 renders the tax a sales tax or ad
valorem tax. They rely primarily on the following treatise
passage to support their contention:
Excise taxes are taxes upon the manufacture,
sale or consumption of commodities, upon
licenses to pursue certain occupations, and
upon corporate privileges. They include any
taxes which do not fall within the
classification of a poll or property tax.
Thus, the term excise tax has come to mean
and include practically any tax that is not
an ad valorem tax. An ad valorem tax is a
tax imposed on the basis of the value of the
article or thing taxed. An excise tax is a
tax imposed on the performance of an act, the
engaging in an occupation, or the enjoyment
of a privilege.[38]
Bragg and Fannon highlight the treatises statement that the term
excise tax has come to mean and include any tax that is not an ad
valorem tax. Bragg and Fannon argue that the tax on non-
cigarette tobacco products fits the definition of an ad valorem
tax.
In support of this proposition, Bragg and Fannon cite a
single case, from the Commonwealth Court of Pennsylvania. In
Blair Candy Co. v. Altoona Area School District, that court held
that a cigarette tax was an excise rather than a sales tax, in
part because the tax was levied on a per-cigarette basis.39 Bragg
and Fannon maintain that we cannot construe the Boroughs tax on
non-cigarette tobacco products as an excise tax because the
Borough assesses it on the basis of wholesale value, rather than
unit of production. Other factors, however, influenced the Blair
Candy courts decision:
The cigarette tax is named an excise tax. An
excise tax is defined as a tax on the
enjoyment of a privilege or tax on the
manufacture, sale or consumption of a
commodity. The cigarette tax is basically
then a tax on the consumption of a commodity
and no matter how many times a cigarette is
sold in the Commonwealth, it is subject to
the cigarette tax only once . . . .[40]
Indeed, the one-time incidence of the Boroughs tax, its label as
an excise tax, and its express purpose of providing a
disincentive to tobacco consumption in the Borough, put it
squarely within the Blair Candy courts definition of excise tax.
Bragg and Fannon go on to invoke the Multistate Tax
Compacts definition of sales tax. But this statutory definition
does not advance their argument any more than our case law does.
Codified at AS 43.19.010, article II, section 7, the Compact
defines a sales tax as
a tax imposed with respect to the transfer
for a consideration of ownership, possession
or custody of tangible personal property or
the rendering of services measured by price
of the tangible personal property transferred
or services rendered and which is required by
state or local law to be separately stated
from the sales price by the seller, or which
is customarily separately stated from the
sales price . . . .
Bragg and Fannon argue that [f]or virtually all tobacco products
brought into the borough, there would be a transfer, for
consideration, of ownership, possession, or custody of the
product as part of the bringing of the tobacco product into the
borough. Moreover, they highlight the Boroughs measurement of the
tax on tobacco products by price.
But regardless of the taxable transactions that take
place, the Boroughs tobacco tax does not require any transfer of
ownership, possession, or control to trigger a taxable event.
More than a sales tax, it resembles an import or manufacturing
tax. The taxable event that falls on a distributor who first
brings or causes cigarettes or other tobacco products to be
brought into the borough may occur months or years before the
sale of those tobacco products. Indeed, as the Borough points
out, the taxed tobacco products may never be sold at all at the
retail level.
In conclusion, the Boroughs tobacco tax targets the
consumption of cigarettes and other tobacco products in the
Borough. The means of assessing the tax for certain categories
of tobacco products does not alter its basic character as an
excise tax. Consequently, AS 29.45.670s voter ratification
requirement does not apply.
V. CONCLUSION
For the reasons detailed above, we AFFIRM the judgment
of the superior court.
_______________________________
1 Codified at AS 43.19.010, art. II, 7.
2 Matanuska-Susitna Borough Ordinance (MSB) 05-068
(2005).
3 584 P.2d 1115 (Alaska 1978) (upholding boroughs
imposition of a sales tax on raw fish after a public hearing had
taken place).
4 9 P.3d 1002 (Alaska 2000) (upholding repeal of sales
tax exemptions without voter ratification).
5 Id. at 1007 (quoting Liberati, 584 P.2d at 1121).
6 Id. at 1005.
7 Evans ex rel. Kutch v. State, 56 P.3d 1046, 1049
(Alaska 2002).
8 N. Kenai Peninsula Rd. Maint. Serv. Area v. Kenai
Peninsula Borough, 850 P.2d 636, 639 (Alaska 1993).
9 City of St. Marys, 9 P.3d at 1005.
10 850 P.2d at 639 n.4 (The superior court concluded that
a decision regarding McGahans standing to sue was unnecessary,
since it ultimately decided that his claims had no merit.
Unless McGahan had standing, however, the court should not have
reached the merits of his claims.).
11 Id. at 639 (quoting Moore v. State, 553 P.2d 8, 23
(Alaska 1976)).
12 Id. In Trustees for Alaska v. State, Department of
Natural Resources, we further noted that we have never denied
citizen-taxpayer standing except on the basis that the
controversy was not of public significance, or on the basis that
the plaintiff was not a taxpayer. 736 P.2d 324, 329 (Alaska
1987) (citations omitted).
13 662 P.2d 120, 123 (Alaska 1983).
14 By way of comparison, we denied citizen-taxpayer
standing to a neighboring landowner who sought to contest the
states sale of twenty acres of land because the amount of land
was not sufficiently significant. Hoblit v. Commr of Natural
Res., 678 P.2d 1337, 1341 (Alaska 1984).
15 Trustees for Alaska, 736 P.2d at 329.
16 See Greater Anchorage Area Borough v. Porter &
Jefferson, 469 P.2d 360 (Alaska 1970) (holding that partnership
that paid no taxes and did not appear on assessment rolls of
borough had no standing to bring an action challenging the
existence of the borough).
17 The Borough does not challenge the assertion that
Bragg and Fannon are residents of the Matanuska-Susitna Borough.
18 See, e.g., Babak A. Rastgoufard, Too Much Smoke and
Not Enough Mirrors: The Case Against Cigarette Excise Taxes and
for Gasoline Taxes, 36 Urban Lawyer 411, 423 (Summer 2004)
(noting that cigarette smokers are only to some degree, price
sensitive).
19 Trustees for Alaska, 736 P.2d at 329.
20 Id. at 330.
21 850 P.2d at 640 (emphasis added).
22 See Carter v. Mont. Dept of Transp., 905 P.2d 1102,
1103 (Mont. 1995).
23 See Stiff v. Ala. Alcoholic Bev. Control Bd., 878 So.
2d 1138, 1144 (Ala. 2003) (reasoning that the plain language of
the statute indicates that the table wine excise tax is levied
on the consumer).
24 422 U.S. 490, 493 (1975).
25 Id. at 499.
26 See Trustees for Alaska, 736 P.2d at 327 (Standing in
our state courts is not a constitutional doctrine; rather, it is
a rule of judicial self-restraint based on the principle that
courts should not resolve abstract questions or issue advisory
opinions.).
27 Lujan v. Defenders of Wildlife, 504 U.S. 555, 573
(1992).
28 See AS 29.45.670.
29 Alaska Const. art. X, 1.
30 Liberati, 584 P.2d at 1120.
31 AS 29.35.170(a).
32 584 P.2d at 1117-24.
33 Id. at 1124 (Rabinowitz, J., dissenting).
34 Article VIII of the Alaska Constitution provides, in
part:
Section 2. General Authority. The
legislature shall provide for the
utilization, development, and conservation
of all natural resources belonging to the
State, including land and waters, for the
maximum benefit of its people.
Section 3. Common Use. Wherever occurring
in their natural state, fish, wildlife, and
waters are reserved to the people for common
use.
35 608 P.2d 32, 34 (Alaska 1980) (reasoning that a real
property lien is beyond the scope of what may be necessarily or
fairly implied in or incident to the authority to collect a
sales tax, particularly since its impact may fall on an innocent
landowner). The statute at issue in Howard, AS 29.48.320, has
since been repealed. Ch. 74, 88, SLA 1985.
36 608 P.2d at 33.
37 While the Borough levies part of the tobacco tax on a
per-cigarette basis, for other tobacco products, the tax is
based upon wholesale price.
38 16 Eugene McQuillan, The Law of Municipal Corporations
44.190 (Dennis Jensen & Gail OGradney eds., 3d ed. 2003)
(citations omitted).
39 613 A.2d 159 (Pa. Commw. 1992).
40 Id. at 161 (citation omitted).
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