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Mae Lu Good v Municipality of Anchorage (9/27/2019) ap-2655

Mae Lu Good v Municipality of Anchorage (9/27/2019) ap-2655


            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 Courts:  

                                            303 K Street, Anchorage, Alaska  99501

                                                           Fax:  (907) 264-0878

                                                E-mail:  corrections @



                                                                                       Court of Appeals No. A-12904  

                                              Appellant,                            Trial Court No. 3AN-16-08889 CR  


                                                                                                      O P I N I O N  


                                              Appellee.                              No. 2655 - September 27, 2019  


                       Appeal   from   the   District   Court,   Third   Judicial   District,  

                       Anchorage, Douglas Kossler, Judge.  

                       Appearances:  Deborah Burlinski, Burlinski Law Office, LLC,  


                       Anchorage,  for  the  Appellant.                         Sarah  E.  Stanley,  Assistant  


                       Municipal            Prosecutor,           and      Rebecca          A.      Windt        Pearson,  


                       Municipal Attorney, Anchorage, for the Appellee.  

                       Before:   Allard, Chief Judge, and Wollenberg and Harbison,  



                       Judge HARBISON.  

                       Under AS 28.01.010(a), a municipality may not enact an ordinance that is                                                      

inconsistent with the provisions of Title 28, the portion of the state code that sets out                                                         

Alaska's   motor  vehicle   laws.     In   1983,   the   legislature   enacted   a   carve-out   to   this  

provision, allowing municipalities to adopt an ordinance                                         providing for the impoundment       

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

or  forfeiture  of  a  motor  vehicle  when  a  defendant  commits  certain  offenses,  even  if  this  

impoundment  or  forfeiture  is  harsher  than  the  penalty  for  a  corresponding  state  offense.1  

                    Then,  in  2016, the  legislature enacted a  third  provision  of  law  relevant  to  

this   appeal  -   a  provision  under   Title   29,  which   is  the  portion   of  the   state   code  that  



governs   municipalities.                Unlike  AS  28.01.010(a),  this  new  provision  -  AS  29- 


.25.070(g) -  is not  limited to  motor  vehicle  laws.   The new provision precludes  a  


municipality from imposing a greater punishment for a violation of municipal law than  


the punishment imposed for a comparable state crime with similar elements.  


                    The question we confront in this appeal is whether this new provision in  


Title  29  impliedly  repealed  the  statutory  carve-out  in  Title  28  that  has  historically  


permitted  municipalities  to  impose  harsher  impoundments  or  forfeitures  for  certain  


delineated offenses.  Because we conclude that the answer is no, we affirm the 30-day  


impoundment imposed in this case under the Anchorage Municipal Code.  


          Underlying facts  and arguments on appeal  


                    Mae Lu Good pleaded no contest to operating a motor vehicle under the  


influence  under  Anchorage  Municipal  Code  (AMC)  09.28.020(A).                                             The  penalty  


provisions  for this  conviction  are  set  out  in AMC  09.28.020(C).   Under  subsection  


(C)(5), if the  defendant has  an interest in the vehicle used  in the  commission of the  


offense, but  has no prior  convictions  for operating under  the  influence  or refusal  to  


submit to a breath test, the sentencing court is required to impound the vehicle for 30  

     1    Former AS 28.35.038 (repealed by SLA 2002, ch. 60,  55); AS 28.01.015(b) (enacted  

in the same session as the repeal of  AS 28.35.038 by  SLA 2002, ch. 60,   6); see McCormick  

v. Anchorage, 999 P.2d 155, 167-68 (interpreting former AS 28.35.038).  

     2    SLA 2016, ch. 36,  113.  

                                                              - 2 -                                                         2655

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


days.   Because Good had an interest in the vehicle, but no prior qualifying convictions,                                                                                                                                                                                         

the court ordered her vehicle impounded for 30 days.                                                                                                                             

                                                 Good's  plea   agreement   allowed   her   to   challenge   the   validity   of   the  

impoundment requirement. She filed a motion to vacate the impoundment, arguing that                                                                                                                                                                                                                               

the mandatory impoundment requirement was invalidated by AS 29.25.070(g), the new                                                                                                                                                                                                                               

Title 29 provision, which prohibits municipalities fromimposing                                                                                                                                                                            a"greater punishment"                

for a municipal crime than that imposed for a comparable state crime.                                                                                                                                                                                              

                                                 The district court denied Good's motion.                                                                                                                   Good now appeals the district                                                            

court's decision.   

                                                 On appeal, the parties agree that the municipal crime of operating under the                                                                                                                                                                                       

influence    is    comparable    to   the    state    crime    of    operating    under    the    influence,  

AS 28.35.030.                                          But the state statute does not contain an impoundment provision - that                                                                                                                                                                                    

is, AS 28.35.030 does not require a judge to impound the defendant's vehicle for a first-                                                                                                                                                                                                                 

time offense.                                     Although the state statute authorizes a judge to forfeit the vehicle used in                                                                                                                                                                                          


the commission of the offense, forfeiture is not required.                                                                                                                                                             


                                                 Good argues that because state law does not require vehicle impoundment  


for  a  first-time  operating  under  the  influence  conviction,  the  mandatory  vehicle  


impoundment provision of AMC 09.28.020(C)(5) is a "greater punishment" and is  


therefore invalidated by AS 29.25.070(g).  


                                                 In response, the Municipality argues that the carve-out in Title 28 for  


municipal impoundments and forfeitures, AS 28.01.015, survived the enactment of  


AS 29.25.070(g).  The Municipality contends that because AS 28.01.015 specifically  

            3            See AMC 09.28.020(C)(5)(a); see also AMC 09.28.020(E)(5) (defining "previously  

convicted").  If  the defendant has been previously  convicted, the court is required to forfeit  

the defendant's interest in the vehicle.  See AMC 09.28.020(C)(5)(b).  

            4            AS 28.35.030(b)(3).  

                                                                                                                                                       - 3 -                                                                                                                                                    2655

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

authorizes municipalities to adopt impoundment or forfeiture ordinances that are more  


stringent than applicable provisions under state law, the impoundment in this case was  



           The statutory framework  relevant to this appeal  


                     Alaska   Statute  28.01.010(a)   prohibits  municipalities   from  enacting  


ordinances that  are inconsistent with  the provisions  of  Title 28.   But AS  28.01.015  


exempts impoundment and forfeitures from this uniformity requirement.  It provides:  


                     (a)   Notwithstanding               other   provisions            in   this   title,      a  


                     municipality  may  adopt  an  ordinance  providing  for  the  


                     impoundment or forfeiture of a  


                               (1)   motor   vehicle,   watercraft,                  or    aircraft  


                               involved in the commission of an offense under  


                               AS 28.35.030, 28.35.032, or an ordinance with  


                               elements substantially similar to AS 28.35.030  


                               or 28.35.032 . . .  


                     (b)  An ordinance adopted under (a) of this section may  


                               . . . .  


                               (2) be more  stringent than or the  same as but  


                               may  not  be   less  stringent  than  applicable  


                               provisions   under   this   title   or   regulations  


                               adopted under this title.  


                     Good does not dispute that, prior to the enactment of AS 29.25.070(g) in  


2016,        the     mandatory            impoundment              and      forfeiture         provision         set      out     in  


AMC   09.28.020(C)(5)   was   clearly   authorized   by   the   carve-out   provision   of  


                                                               - 4 -                                                          2655

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


AS   28.01.015   that   we   have   just   quoted.     But   she   argues   that   the   enactment   of  

AS 29.25.070(g) invalidated the carve-out.                                         

                                 At the time of Good's sentencing, AS 29.25.070(g) provided:                                                                        

                                 If a municipality prescribes a penalty for a violation of a                                                                                        

                                 municipal ordinance, including a violation under (a) of this                                                                                 

                                  section, and there is a comparable state offense under AS 11                                                                                   

                                 or AS 28 with elements that are similar                                                                    to  the municipal   

                                 ordinance,    the    municipality    may  not    impose    a   greater  

                                 punishment than that imposed for a violation of the state law.                                                                                         

                                 This   subsection  applies   to   home   rule   and   general   law  



By allowing municipalities to adopt ordinances imposing impoundments or forfeitures  


that are "more stringent than" state impoundments and forfeitures, AS 28.01.015 is  


arguably at odds with AS 29.25.070(g).  Accordingly, we must determine whether the  


enactment of AS 29.25.070(g) constituted an implied repeal of AS 28.01.015.  


                                 Because  this  appeal  presents  solely  a  legal  question  regarding  the  



interpretation of controlling statutes, we review the trial court's decision de novo. 

        5        See McCormick v. Anchorage, 999 P.2d 155, 167-68 (Alaska App. 2000)  (interpreting  

AS 28.35.038, which was repealed and replaced without relevant changes by  AS 28.01.015,  

to authorize municipal  impoundment and forfeiture provisions that were inconsistent with  

the provisions of  Title 28).  



                 In 2017, subsequent to Good's sentencing, the legislature amended this provision,  


changing the word "offenses" to "crimes."  SLA 2017, ch. 13,  24.  The legislative history  


of this change indicates that it was a technical change clarifying that AS  29.25.070(g)'s  


prohibition against municipal ordinances imposing "greater punishments" than those imposed  


by state law applied only to "crimes," and not to minor offenses such as traffic infractions.  

The amendment therefore sheds no light on the issue presented in this appeal.  

        7        See, e.g., Madonna v. Tamarack Air, Ltd., 289 P.3d 875, 878 (Alaska 2013).  

                                                                                                      - 5 -                                                                                                  2655

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

                  Why we conclude that the mandatory impoundment requirement of the

                Anchorage Municipal Code is not rendered invalid by AS 29.25.070(g)

                                  1.  Law of implied repeal                     

                                  Statutes may be repealed by implication.                                                                      There are two categories of                                          

implied repeal:   

                                  (1)   where provisions in the two acts are in irreconcilable                                                        

                                  conflict, the later act to the extent of the conflict constitutes   

                                  an implied repeal of the earlier one; and (2) if the later act                                                                                  

                                  covers the whole subject of the earlier one and is clearly                                                                           

                                  intended as a substitute, it will operate similarly as a repeal of                                                                                 

                                  the earlier act.                    [8]  


On appeal, Good relies solely on the first category of implied repeal.  



                                  In Alaska,thereis no automaticpresumption against implied repeal,                                                                                                                

                                                                                                                                                                                                            as this  


type of presumption runs contrary to the "real probability . . . that the purpose of new  



legislation is to change prior law." 


                                  In Peter v. State, the Alaska Supreme Court stated:  


                                  [W]e  should  not  commence  with  a  presumption  against  


                                  implied repeal. We shall look to the purpose indicated by the  


                                  legislature in passage of an act in our effort to determine  


                                  whether the new enactment is intended to repeal a prior one.  


                                  If enforcement of the prior statute is in irreconcilable conflict  


                                  with such purpose, it will be held to have been impliedly  


         8       Peter v. State, 531 P.2d 1263, 1267 (Alaska 1975).  

         9       Progressive Ins. Co. v. Simmons, 953 P.2d 510, 516 (Alaska 1998).  

         10      Peter, 531 P.2d at 1268.  

         11      Id.  

                                                                                                        - 6 -                                                                                                   2655

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

Accordingly,   we   look   to   the   legislative   intent   behind   each   of   the   state   statutes   to  

determine  whether  enforcement of AS  28.01.015  would  be  in  "irreconcilable  conflict"  

with  the  purpose  of  the  subsequently  enacted  statute,  AS  29.25.070(g).   

                    2.  Legislative  intent  of  AS  28.01.015  

                    In   enacting   AS   28.01.010,   the   legislature's   specific   goal was   statewide   

uniformity   of  traffic  laws   among  the  political   subdivisions  within  the   State.12  



AS 28.01.010(a), "A municipality may not enact an ordinance that is inconsistent with  


the provisions of [Title 28] or the regulations adopted under [Title 28]."  


                    But  since  1983,  Title  28  has  contained  an  explicit  exception  to  the  


requirement that municipal ordinances may not be inconsistent with the provisions of  



Title 28.                                                                                                            

                (This exception was originally codified in AS 28.35.038 and is now codified  


in  AS  28.01.015.)             Under  this  exception,  a  municipality  may  enact  an  ordinance  


providing for the impoundment or forfeiture of a motor vehicle used in several delineated  


offenses, including operating under the influence, even if this provision is more stringent  


than its state counterpart.  


                    In McCormick v. Anchorage , we explained (when interpreting the former  


statute),  that  by  enacting  AS  28.35.038,  the  Alaska  Legislature  explicitly  granted  


municipalities  the  power  under  certain  circumstances  to  enact  impoundment  and  



forfeiture ordinances that are inconsistent with the other provisions of Title 28.                                        

                                                                                                                     In other  


words, the legislature intended AS 28.35.038 to be a specific carve-out for impoundment  

     12   See Simpson v. Anchorage, 635 P.2d 1197, 1203 (Alaska App. 1981).  

     13   See former AS 28.35.038 (enacted by SLA 1983, ch. 77,  23).  

     14   McCormick v. Anchorage , 999 P.2d 155, 167 (Alaska App. 2000).  

                                                             - 7 -                                                        2655

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

and forfeiture provisions, allowing municipalities to adopt these provisions for certain  

types  of  offenses  even  when  the  provisions  are  inconsistent  with  state  statutes.  

                    In  2002,   the   legislature   repealed   AS   28.35.038   and   replaced   it   with  

AS   28.01.015   -   expanding   the   situations   in   which   the   municipality   could   adopt   a  

broader   impoundment   or   forfeiture   ordinance.15  

                                                                            Under   the   new   statute,   municipal  

impoundment  and  forfeiture  ordinances  for  certain  offenses,  including  operating  under  

the  influence,  continue  to  be  a  permissible  carve-out t  o  the  uniformity requirement  of  

Title  28,  but  only  if  the  ordinance  is  "more  stringent  than  or  the  same  as"  corresponding  

state  law.16  


                    3. Legislative intent of AS 29.25.070(g) and Senate Bill 91  


                    Subsection (g) of AS 29.25.070 was added in 2016 as part of Senate Bill  



         According to a sponsor statement by  Senator John Coghill, Senate Bill 91 was  


intended to reduce recidivism, lower corrections costs caused by long sentences, and  


reinvest the savings into alternative crime reduction schemes, such as pretrial practices  




and reentry services. 


                    The opening paragraphs of Senator Coghill's Sponsor Statement read:  


                    Senate  Bill  91  implements  proven  practices  to  reduce  


                   recidivism, keep Alaskans safe, hold offenders accountable,  


                    and control corrections spending.  

     15   SLA 2002, ch. 60,  6, 55.  

     16   AS 28.01.015(b).  

     17   SLA 2016, ch. 36,  113.  

     18   Sponsor Statement for Senate Bill 91, Senator John  Coghill, Version N (March 28,  


                                                            - 8 -                                                       2655

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

                        Increased   spending   on   prisons   has   not   brought   Alaskans  

                        greater public safety:  nearly two out of every three inmates                                  

                        who leave prison return to prison within three years.                                               The  

                        high        rate       of      recidivism             has       significantly              increased  

                        Department of Corrections operating costs to $324 million in                                             

                        FY   2016,   and   spurred   the   opening   of   the   Goose   Creek  

                        Correctional    Center,    costing    the    state    $240    million    in  

                        construction funds.                [19]  


The sponsor statement then provides that the bill will (1) implement evidence-based  


pretrial practices, (2) focus prison beds on serious and violent offenders, (3) strengthen  


probation and parole supervision, (4) improve opportunities for successful reentry, and  



(5) reinvest a portion of the savings from these reforms into evidence-based practices. 


                        Senate Bill 91 was the product of recommendations issued by the Alaska  


Criminal Justice Commission.                                                                                           

                                                           The Commission found, "based on prison population  


data for the preceding decade, that 'incarceration [was no] more effective at reducing  


recidivismthannon-custodial sanctions' -that, indeed, forlow-leveloffenders, sending  



them to prison seemingly increased the rate of recidivism."                                                     


                        Senator  Coghill's  sponsor  statement,  when  viewed  together  with  the  


Commission's finding and the plain language of AS 29.25.070(g), indicates that Senate  


Bill 91 was intended to reduce corrections spending and recidivism in part by limiting  


incarceration  in  favor  of  non-custodial  sanctions  and  rehabilitation.  To  that  end,  

      19    Id.  

      20    Id.  

      21    See  Sponsor Statement for Senate Bill 91, Senator John Coghill, Version N  (February  

 10, 2016); Anchorage v. Beezley , 435 P.3d 978, 981 (Alaska App. 2018).  

      22    Beezley,  435  P.3d  at  981  (quoting  Alaska  Criminal  Justice   Reinvestment  Report  

(2015), pp. 8-9) (emphasis in Beezley).  

                                                                          - 9 -                                                                     2655

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

AS  29.25.070(g)  prohibited  municipalities  from  imposing  punishments  for  municipal  

offenses  that  exceed  the  punishments  authorized  for  comparable  state  offenses.   

                    4.    Whether   there   is   an  irreconcilable   conflict   between  

                   AS  28.01.015  and  AS  29.25.070(g)  

                    In    assessing    whether    there    is    an    irreconcilable    conflict    between  

AS  28.01.015  and  AS  29.25.070(g),  legislative  intent  is  key.23  


                                                                                               If AS 28.01.015 is in  


irreconcilable conflict with the purpose of AS 29.25.070(g), then it has been impliedly  



                  If, on the other hand, AS 28.01.015  still has  a rational purpose  after the  

                                             25                                                   26  


enactment of AS 29.25.070(g),                                                             

                                                both statutes continue to be valid. 


                    To  make  this  determination,  we  assess  the  totality  of  the  legislative  



framework within which these statutes are included.                                                                        

                                                                               We interpret the two statutes "in  


context with other pertinent provisions rather than in isolation, and with a view toward  



reconciling conflict and producing 'a harmonious whole.'"                                 


                   As  we  discussed  above,  for  decades  the  legislature  has  precluded  


municipalities  from enacting  ordinances that  are  inconsistent with  the  state's motor  

     23   See Progressive Ins. Co. v. Simmons, 953 P.2d 510, 516 (Alaska 1998).  

     24   See id.  

     25   See id. at 518.  

     26   See Peter v. State, 531 P.2d 1263, 1268 (Alaska 1975).  

     27   See  Lampley  v.  Anchorage,  159  P.3d  515,  524  (Alaska  App.  2007)  (considering  

whether municipal ordinance was fatally inconsistent with state statute).  

     28   Progressive Ins. Co., 953 P.2d at 516 (quoting City of Anchorage v. Scavenius, 539  

P.2d 1169, 1174 (Alaska 1975)).  

                                                           -  10 -                                                      2655

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


vehicle laws under Title 28.                        At the same time, since 1983, the legislature has expressly                        

carved out impoundments and forfeitures from this general uniformity requirement.                                                                 30  


                       In 2016, the legislature expanded the uniformity requirement by adding a  


provision to Title 29 that applies to all crimes under both Title 11 and Title 28.  Under  


this  new  provision,  uniformity  is  no  longer  limited  to  motor  vehicle  laws;  rather,  


municipalities are precluded from imposing a "greater punishment" for any municipal  



violation than the punishment imposed for a comparable state crime. 


                       But there is no reason to think that, by adding a uniformity provision to  


Title  29  and  expanding  it  to  include  all  offenses  under  Title  11  and  Title  28  (but  


otherwise  leaving  the  more  specific  Title  28  uniformity  provision  in  place),  the  


legislature intended to repeal the long-standing carve-out in Title 28 for impoundments  


and forfeitures.  Indeed, we have not identified anything in the legislative history of  


Senate Bill 91 or AS 29.25.070(g) to suggest that the legislature had impoundments and  


forfeitures in mind when it enacted this provision.  


                       The Alaska Supreme Court confronted an analogous situation in Hafling  



v. Inlandboatmen's Union of Pacific .                                                                                                             

                                                                        In Hafling, the court considered whether the  


Public Employment Relations Act (PERA), which gave all public employees the right  

to organize and bargain collectively with their public employers, applied to state ferry  



                                   This question in turn hinged on whether the enactment of PERA  

system workers. 

      29    See AS 28.01.010(a).  

      30    AS 28.01.015; former AS 28.35.038.  

      31    AS 29.25.070(g).  

      32    Hafling v. Inlandboatmen's Union of the Pacific, 585 P.2d 870 (Alaska 1978).  

      33    Id. at 871.  

                                                                      - 11 -                                                                   2655

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

impliedly   repealed   another   statute,  enacted   nine   years   earlier,   that   had   specifically  

authorized the commissioner of public works to engage in collective bargaining with                                                   


state   ferry   employees.                                                                                                   

                                           The supreme  court  declined  to  find  that  PERA  impliedly  


repealed the earlier statue but instead construed the statutes in pari materia , concluding  


that PERA did not undercut the earlier statute but instead provided additional guidelines  



and procedures for collective bargaining. 


                      We similarly conclude that, while AS 29.25.070(g) was intended to expand  


sentencing uniformity throughout the state, it did not undercut the more specific statute  


governing  impoundments  and  forfeitures  that  had  existed  as  a  carve-out  to  this  


uniformity for decades.  


                      Thisconclusion is consistentwiththeruleofstatutoryconstructionfavoring  


specific provisions over more general provisions. As we have previously stated, "where  


one statute deals with a subject in general terms and another deals with a part of the same  


subject in more detail, the two should be harmonized if possible, but if there is any  



conflict, the more specific statute will prevail."                              Additionally, continued enforcement  


of the impoundment and forfeiture carve-out in AS 28.01.015 is not inconsistent with the  


stated purpose of Senate Bill 91 - "to reduce recidivism, keep the public safe, hold  


offenders accountable, and control spending on corrections."  


                      For  these reasons,  we conclude that  there is no  irreconcilable conflict  


between  the  two  statutes,  and  therefore  AS  29.25.070(g)  did  not  impliedly  repeal  

     34    Id. at 876.  

     35    Id.  

     36    Lamkin v. State ,  244 P.3d 540, 541 (Alaska App. 2010) (quoting Waiste v. State, 808  

P.2d 286, 289 (Alaska App. 1991)); see also State of Alaska, Dep't of Highways v. Green,  

586 P.2d 595, 602 (Alaska 1978) (same).  

                                                                 - 12 -                                                              2655

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

AS 28.01.015. Accordingly, the district court did not err in ordering that Good's vehicle  


be impounded for 30 days.  



                   The judgment  of the district court is AFFIRMED.  


                                                          -  13 -                                                      2655

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