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State v. Hamilton (9/18/2009) ap-2235

State v. Hamilton (9/18/2009) ap-2235

     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate

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STATE OF ALASKA,                   
                    Petitioner          Court  of Appeals No.  A-
,                                  10268
                                              Trial Court No. 1JU-
               v.                  08-259 Cr
DAVID G. HAMILTON,                 
                                                   O  P  I  N   I
                    Respondent     O  N
End of Caption                     
                                    No. 2235    September 18, 2009
          Petition for Review from the Superior  Court,
          First  Judicial District, Juneau,  Philip  M.
          Pallenberg, Judge.

          Appearances:   David  L.  Brower,   Assistant
          Attorney  General, Criminal Division  Central
          Office, and Richard Svobodny, Acting Attorney
          General, Juneau, for the Petitioner.  Jane E.
          Sebens, Assistant City Attorney, Juneau,  for
          amicus  curiae City 
and Borough of Juneau (aligned with the Petitioner). Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Respondent.
Before:  Coats,  Chief
          Judge, and Mannheimer and Bolger, Judges.

          MANNHEIMER, Judge.

          In  1971,  the City and Borough of Juneau (a home  rule
municipality)  enacted a traffic code.  One of the provisions  of
that  code, section 72.02.210(b), makes it unlawful for a  driver
to  accelerate a vehicle which is stopped, standing[,] or  parked
on  or  along  a  highway[,] or which is entering a  highway,  so
rapidly as to unnecessarily cause the tires to squeal or spin.
          At  the  time  this provision was enacted,  the  Alaska
Administrative  Code  contained an identical  traffic  regulation
(with  an identical identifying section number):  former  13  AAC
02.210(b).   However,  the  Alaska Department  of  Public  Safety
repealed this state traffic regulation in June of 1979.
          AS  28.01.010(a) declares that [a] municipality may not
enact  [a  traffic]  ordinance  that  is  inconsistent  with  the
provisions  of  [Title  28  of  the  Alaska  Statutes]   or   the
regulations  adopted under [that] title.  The question  presented
in this appeal is whether the City and Borough of Juneaus traffic
ordinance  became inconsistent with state law   and  thus  became
unlawful  by virtue of the 1979 repeal of the corresponding state
          Before  we  address this point, we note that one  might
conceivably  argue  that,  because AS 28.01.010(a)  only  forbids
municipalities  from  enacting  a  traffic  ordinance   that   is
inconsistent  with  state traffic law, the City  and  Borough  of
Juneau may not have violated this statute  because the challenged
Juneau  ordinance  was consistent with (in  fact,  identical  to)
state law when it was enacted.
          In other words, the issue in this case arises, not from
Juneaus  enactment of the challenged ordinance, but  rather  from
Juneaus  failure to repeal the ordinance after the  corresponding
state regulation was repealed.  However, the State does not argue
that  AS  28.01.010(a)  allows  a  municipality  to  maintain  an
ordinance after it becomes inconsistent with state law due  to  a
change  in state law.  We therefore assume, for purposes of  this
case,  that  AS  28.01.010(a) governs this situation.   We  turn,
then,  to the question of whether Juneaus tire-spinning ordinance
is inconsistent with state law for purposes of AS 28.01.010(a).
          The  superior court acknowledged that it [did] not have
any  information as to why the Alaska Department of Public Safety
repealed the corresponding state tire-spinning regulation, former
13  AAC 02.210(b).  However, the superior court concluded that it
did  not matter why the Department of Public Safety repealed this
regulation   because,  regardless of the  States  motivation  for
repealing  the regulation, the determinative fact  was  that  the
challenged Juneau ordinance prohibits conduct that is  no  longer
prohibited by state traffic law.
          The  superior  court concluded that the  policy  behind
AS  28.01.010(a)  was to ensure the uniformity  of  traffic  laws
throughout the State of Alaska.  The court therefore ruled that a
municipal  traffic  ordinance should be deemed inconsistent  with
state  law whenever the ordinance proscribes conduct that is  not
proscribed  by  state traffic law.  Based on this reasoning,  the
superior court declared that the  Juneau tire-spinning ordinance,
CBJ   Code   72.02.210(b),  was  invalid  because   it   violated
AS 28.01.010(a).
          It is true that the policy behind AS 28.01.010(a) is to
ensure uniformity of traffic laws throughout this state.  See our
discussion of this point in Simpson v. Anchorage, 635 P.2d  1197,
1202-03 (Alaska App. 1981).
          However,   as   we  also  explained  in   Simpson,   AS
28.01.010(a)  does not require complete uniformity between  state
traffic  laws  and  local traffic laws, so  as  to  prohibit  any
divergence between state and local law.  Id. at 1203-04.  Rather,
a local ordinance is prohibited by AS 28.01.010(a) only if
          the  ordinance  ...  directly  or  indirectly
          impede[s]  implementation of  a  [state  law]
          which [seeks] to further a specific statewide
          Simpson,  635  P.2d at 1203-04,  quoting  the
          Alaska  Supreme Courts decision in Cremer  v.
          Anchorage, 575 P.2d 306, 307 (Alaska 1978).
          More  particularly,  in  situations
like  the present case, where the discrepancy
between  state and local law arises from  the
fact   that  the  local  ordinance  prohibits
conduct that is not prohibited by state law,

an essential criterion of inconsistency under
28.01.010(a) is whether the [local] ordinance
in  question seeks to proscribe conduct which
...  the [state] legislature intended,  as  a
matter of policy, to permit.

Simpson,  635  P.2d at 1204, quoting  Cremer,
575  P.2d  at  308 n. 5 (internal  quotations
          In  other  words, when [a] question
of  inconsistency  under AS  28.01.010(a)  is
raised, the issue is not whether there  is  a
...  discrepancy between state law and  local
ordinance; rather, the inquiry must focus  on
whether  [that]  discrepancy ...  impedes  or
frustrates [a] policy expressed by state law.
Simpson, 635 P.2d at 1204.
          In the present case, the challenged
local   ordinance  prohibits   drivers   from
accelerat[ing]  a vehicle which  is  stopped,
standing[,]   or  parked  on   or   along   a
highway[,] or which is entering a highway, so
rapidly  as to unnecessarily cause the  tires
to  squeal  or  spin ....   As  we  explained
earlier,  there  was a former  state  traffic
regulation that prohibited this same  conduct
(using  exactly this same wording),  but  the
Department  of  Public Safety  repealed  that
regulation in 1979.
          If  the  Department,  by  repealing
this  regulation, intended  to  implement  an
affirmative state policy of allowing  drivers
to  engage in unnecessary tire-spinning  when
they  accelerated  their vehicles,  then  the
Juneau  ordinance would be invalid; it  would
be  inconsistent  with state  law  under  the
interpretation  of  AS 28.01.010(a)  that  we
adopted in Simpson.
          But,    as   the   superior   court
acknowledged, the present record is silent as
to  what  motivated the Department of  Public
Safety   to   repeal   the   former   traffic
regulation.  This means that there is nothing
in the record to suggest that the Departments
act  of  repealing the state  regulation  was
intended to implement a state-wide policy  of
permitting unnecessary tire-spinning.
          Given  a silent legislative record,
we believe it unlikely that the Department of
Public   Safety   intended  to  affirmatively
authorize  or  encourage this behavior.   The
more  likely inference is that the Department
simply   decided   to  leave   this   conduct
unregulated at a state level.  Accordingly, a
municipal   ordinance   that   regulates   or
prohibits  this  conduct is not  inconsistent
with  state  traffic law, as we defined  that
concept in Simpson.
          For these reasons, we conclude that
the  Juneau  ordinance does  not  violate  AS
28.01.010(a).  The decision of  the  superior
court is therefore REVERSED.

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