Justia.com Opinion Summary: Citizens sought a ballot initiative to eliminate the special regulations that govern real property transactions in a local economic development area. After the municipal clerk twice denied their petition for a ballot initiative, the sponsors sued for an order placing the initiative on the ballot. Finding the petition to be both contrary to existing law and misleading, the superior court upheld the municipal clerk's denial. The sponsors appealed. Because the Supreme Court concluded that the petition is neither contrary to existing law nor misleading, it reversed.
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Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
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
SITKANS FOR RESPONSIBLE
)
GOVERNMENT, MICHAEL
)
LITMAN, and JEFFERY FARVOUR, )
)
Appellants,
)
)
v.
)
)
CITY & BOROUGH OF SITKA and )
COLLEEN PELLETT, Municipal
)
Clerk,
)
)
Appellees.
)
)
Supreme Court No. S-13394
Superior Court No. 1SI-08-00130 CI
OPINION
No. 6667 - April 20, 2012
Appeal from the Superior Court of the State of Alaska, First
Judicial District, Sitka, David V. George, Judge.
Appearances: Joseph W. Geldhof, Law Office of Joseph W.
Geldhof, Juneau, for Appellants. Theresa Hillhouse,
Municipal Attorney, Sitka, for Appellee City & Borough of
Sitka, Michael Gatti and Leila R. Kimbrell, Wohlforth,
Johnson, Brecht, Cartledge & Brooking, Anchorage, for
Appellee Colleen Pellett, Municipal Clerk.
Before: Carpeneti, Chief Justice, Fabe, Winfree, and
Stowers, Justices. [Christen, Justice, not participating.]
CARPENETI, Chief Justice.
I.
INTRODUCTION
Citizens sought a ballot initiative eliminating the special regulations that
govern real property transactions in a local economic development area. After the
municipal clerk twice denied the petition for a ballot initiative, the sponsors sued for an
order placing the initiative on the ballot. Finding the petition to be both contrary to
existing law and misleading, the superior court upheld the municipal clerk’s denial. The
sponsors appealed. Because we conclude that the petition is neither contrary to existing
law nor misleading, we reverse.
II.
FACTS AND PROCEEDINGS
A.
Facts
1.
The petition
On June 25, 2008, Jeffery Farvour filed a petition for a ballot initiative with
the municipal clerk of the City and Borough of Sitka.1
1
The initiative
The petition states:
CITY AND BOROUGH OF SITKA
ORDINANCE NO. 2008-_____
AN ORDINANCE OF THE CITY AND BOROUGH OF SITKA, ALASKA
REPEALING AND/OR REENACTING PORTIONS OF TITLE 2 & TITLE 18
OF THE SITKA GENERAL CODE TO REQUIRE THAT THE SALE, LEASE
OR DISPOSALS OF REAL PROPERTY WITHIN SAWMILL COVE
INDUSTRIAL PARK BE CONSISTENT WITH AND CONFORM TO THE
PROPERTY DISPOSAL ORDINANCES CONTAINED IN TITLE 18,
INCLUDING A PUBLIC VOTE, IF NECESSARY.
1. CLASSIFICATION. This ordinance is of a permanent nature. Section 3 is intended
to become a part of the Sitka General Code upon election certification.
2. PURPOSE. The purpose of this o rdinance is to require that the administration and
disposals of tidelands, submerged land, and other real property in the Sawmill Cove
Industrial Park take place and is governed by Title 18 of the Sitka General Code and, as
necessary that disposals of property within the Sawmill Cove Industrial Park are subject
to a public vote.
(continued...)
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would change how Sitka manages Sawmill Cove Industrial Park (Sawmill Cove).
Sawmill Cove is the former site of the Alaska Pulp Corporation mill.2 Sitka
acquired the site in 2000 to manage economic development.3 According to the purpose
statement of the municipal acquisition:
Unlike other property owned by the municipality, [Sawmill
Cove] was acquired . . . for economic development and
disposal. In general, the property will not be used for public
improvements. It will be leased or sold to individuals and
corporations to develop business opportunities and provide
1
(...continued)
3. ENACTMENT. NOW, THEREFORE, BE IT ENACTED that Sitka General Code
Section 2.38.080 (a) (7) is repealed and reenacted to read as follows:
7.
All land transactions shall be governed in accordance with Title 18
of Sitka General Code.
BE IT FURTHER ENACTED that Sitka General Code Section 2.38.090
(Ord. 00-1568 § 4 (part), 2000.), pertaining to leasing powers is repealed.
BE IT FURTHER ENACTED that Sitka General Code Section
18.12.010(B) is repealed and reenacted to read as follows:
B. Upon sale or disposal of real property valued over five hundred
thousand dollars, or upon lease of real property, including tidelands, of a
value of more than seven hundred fifty thousand dollars, the ordinance
authorizing the sale, lease, or disposition shall provide that the ordinance
be ratified by a majority of the qualified voters voting at a general or
special election. Any such sale, lease, or disposition shall be revocable
pending the outcome of the election.
4. EFFECTIVE DATE. This ordinance shall become effective immediately on
certification by the Assembly if the results of the election show that a majority of
the qualified voters approved enactment.
2
See Sitka General Code (SGC) 02.38.080(A)(5) (2009) (noting conveyance
agreement with Alaska Pulp Corporation).
3
Sitka Ordinance (SO) 00-1568 (2000).
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jobs. For that reason, it is important to enact a procedure for
property management and disposal at the site which more
closely corresponds to private sector disposals.[4]
Accordingly, Sitka manages the site through a Board of Directors (the Board), whose
extensive control over the site includes the power to operate, develop, budget for, and
regulate Sawmill Cove.5 The Board may enter into contracts on behalf of Sitka,6 and the
Board may dispose of Sawmill Cove property.7
The Board’s power to dispose of Sawmill Cove property is broader than the
city’s power to dispose of other property. In order to sell, lease, buy, or trade real
property in Sawmill Cove, the Board needs only the support of the Sitka assembly, in the
form of a resolution.8 Short-term leases require only the municipal administrator’s
approval.9 In contrast, Sitka is more limited regarding disposal of its other, non-Sawmill
Cove properties. Before the assembly can sell other real property valued over $500,000
or enter into a lease valued over $750,000, the assembly must pass an ordinance and
Sitka voters must ratify the action in an election.10
The petition giving rise to this case would eliminate the Board’s broad
authority to transact real property in Sawmill Cove, and would instead require those
transactions to comply with the normal requirements for any Sitka municipal land
4
Id.
5
SGC 02.38.080(A).
6
Id. at (A)(9).
7
Id. at (A)(7).
8
Id.
9
Id. at (A)(7)(a).
10
SGC 18.12.010(B).
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transaction. To do this, the petition revokes the language in Sitka General Code
02.38.080(A)(7), which contains the special procedures for transacting Sawmill Cove
property. Instead, that section would read: “All land transactions shall be governed in
accordance with Title 18 of Sitka General Code.”
Title 18 contains the normal
procedures for Sitka’s municipal land transactions.11 That means that Sawmill Cove
would be governed by the normal requirement that voters ratify any high-value land
transaction — sales over $500,000 or leases over $750,000.12 The change to Title 18
would also eliminate the Board’s ability to execute short-term leases with only the
municipal administrator’s approval; instead, assembly approval would be required.13
Finally, the change would impact all land transactions — large or small, lease 14 or sale15
11
See SGC 18.12.010.
12
Id. at (B).
13
See supra note 1. The third section of the ballot initiative (titled
“Enactment”) proposed eliminating the current SGC 02.38.080(A)(7)(a), which only
requires administrative approval for short-term leases in Sawmill Cove, and replacing
it with SGC 18.12.010, which would require authorization by ordinance of any lease,
with certain minor exceptions.
14
See supra note 1. The third section of the ballot initiative proposed
replacing the current SGC 02.38.080(A)(7), the section of the ordinance that allows the
Board to administer and dispose of property (sometimes subject to assembly approval)
with the procedures in SGC 18.12.010, which grants no authority to the Board and
requires an ordinance for most transactions.
15
See supra note 1. The petition makes two other minor changes to the Sitka
code, each removing language currently stating that Sawmill Cove is not subject to Title
18. The petition w ould repeal SGC 02.38.090 (clarifying that Sawmill Cove leases are
pursuant to Title 2, chapter 38) and amend SGC 18.12.010(B) (currently exempting
Sawmill Cove property from Title 18).
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— by removing the Board’s authority to initiate such actions and instead requiring
municipal action.
2.
Sitka’s denial of the petition
Jeffery Farvour’s June 25, 2008 petition identified Farvour and Michael
Litman (the sponsors) as contacts for the petition, and sought approval to begin
collecting signatures to qualify the petition for the October 7, 2008 election.16 Sitka
forwarded the petition to its outside counsel, which responded with many reasons to
deny the petition. Although it is unclear how strong these reasons are,17 the outside
counsel found that the petition (1) is confusing and misleading; (2) appropriates a public
asset; (3) relates to an administrative matter; (4) is inconsistent with existing code; (5)
is inconsistent with the local planning process; (6) immediately affects public health,
safety, and welfare; (7) does not provide an effective date; and (8) conflicts with a
requirement for Department of Justice pre-clearance. Accordingly, Sitka Municipal
Clerk Colleen Pellett denied the petition on July 10, 2008. Although her denial notice
was cursory, she attached the more extensive memo from outside counsel.
On July 22, 2008, Litman submitted an amended petition on behalf of
Sitkans for Responsible Government. A cover letter discussed the concerns listed in the
July 10 denial, but the petition corrected only two minor problems.18 Sitka again
16
To qualify for the Sitka ballot, an initiative must be signed by at least as
many people as constitute 20% of the total number of electors voting at the last regular
annual election. Home Rule Charter of City and Borough of Sitka Art. 6.01 (2009).
17
For example, the paragraph alleging that the petition concerns an
administrative matter contains no analysis. Several other arguments raised in the memo
are also conclusory.
18
First, the new version stated that Sawmill Cove requirements would “be
consistent with and conform to” Title 18, whereas the original petition had only stated
(continued...)
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forwarded the petition to its outside counsel, which responded with a memorandum
highlighting essentially the same issues as it had in the first petition. The municipal clerk
denied this second petition on August 5, 2008, again including a memo from outside
counsel.
B.
Proceedings
On August 8, 2008, the sponsors filed a complaint in superior court.19 They
sought an injunction directing the clerk to certify the initiative for inclusion in the regular
municipal election and declaratory relief confirming the propriety of the initiative.
Superior Court Judge David V. George granted a preliminary injunction against Sitka
and ordered the clerk to provide the sponsors with signature booklets so that they could
gather signatures, which was done. The superior court then held an expedited hearing
on August 19 and, in an order issued August 27, the court denied the sponsors’ request
for relief.
In its subsequent written decision, the superior court denied the sponsors’
motion for summary judgment and dismissed the sponsors’ complaint. Based on two
independent grounds, the superior court upheld the Sitka clerk’s denial of the petition for
a ballot initiative: the court held (1) the initiative is contrary to law and unenforceable,
18
(...continued)
“conform to.” Second, the new petition corrected a typographical error so that
18.12.010(B) would be repealed, not 18.38.080(B), which had been erroneously listed
in the original petition.
19
Sitkans for Responsible Government was the lead plaintiff, but the superior
court eventually dismissed the group for lack of standing.
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and (2) the initiative is misleading and confusing.20 The sponsors now appeal both of
these holdings. Sitka, in turn, contends the case is moot.
III.
STANDARD OF REVIEW
We review a superior court’s summary judgment decision de novo, drawing
all inferences in favor of, and viewing the facts in the record in the light most favorable
to, the non-moving party.21 Mootness22 and the legality of a ballot initiative23 are both
legal questions to which we also apply de novo review, adopting the rule of law that is
most persuasive in light of precedent, reason, and policy.24
When reviewing initiatives, we construe them broadly so as to preserve
them whenever possible.25 We apply a deferential standard of review for challenges to
20
The court found unsupported a third reason — that the initiative was
illegally used to make an appropriation. And the court did not reach a fourth reason —
that the initiative improperly concerns administrative action. We note that courts should
rule on all the reasons given for rejecting citizen petitions. Piecemeal litigation and
piecemeal appeals can delay and potentially thwart the ability of the people to initiate
laws or to decide not to do so. Ruling on all the reasons given for rejecting citizen
petitions will prevent citizens from having to return to the courthouse multiple times to
secure a spot on the ballot for their initiatives.
21
Pebble Ltd. P’ship ex rel. Pebble Mines Corp. v. Parnell, 215 P.3d 1064,
1072 (Alaska 2009) (citing Anchorage Citizens for Taxi Reform v. Municipality of
Anchorage, 151 P.3d 418, 422 (Alaska 2006)).
22
Ulmer v. Alaska Rest. & Beverage Ass’n, 33 P.3d 773, 776 (Alaska 2001).
23
Pebble Ltd., 215 P.3d at 1072.
24
Id.; Jacob v. State, Dep’t of Health & Soc. Servs., 177 P.3d 1181, 1184
(Alaska 2008).
25
Pebble Ltd., 215 P.3d at 1073 (citing Anchorage Citizens for Taxi Reform,
151 P.3d at 422).
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the adequacy of a petition summary and “[t]hose attacking the summary bear the burden
‘to demonstrate that it is biased or misleading.’ ”26
IV.
DISCUSSION
A.
The Issues On Appeal Are Not Moot.
Sitka contends this appeal is moot because the October 7, 2008 election has
passed. Assuming the sponsors’ request to be included on a ballot refers only to the
October 2008 election, Sitka points out certification for a past election is impossible and
the case is therefore moot. Further, regarding the sponsors’ request for declaratory relief,
Sitka asserts any relief upholding the petition’s language would constitute an improper
advisory opinion for a hypothetical future petition. Again, this assumes the sponsors
would have to file a new petition for an upcoming election. However, because Sitka has
not actually demonstrated the sponsors would need to file a new petition, and because
this case is rich with adversity, we do not find it to be moot.
We generally decline to address a moot claim — that is, a claim that “has
lost its character as a present, live controversy.”27 A claim is moot if “the party bringing
the action would not be entitled to any relief even if it prevails.”28 By contrast,
justiciable controversies are marked by adversity between the parties: There must be a
“definite and concrete” controversy touching the parties’ legal relations, not simply
“hypothetical or abstract” disputes.29 “Mootness is particularly important in a case
26
Id. (citing Alaskans for Efficient Gov’t, Inc. v. State, 52 P.3d 732, 735
(Alaska 2002)).
27
Kodiak Seafood Processors Ass’n v. State, 900 P.2d 1191, 1195 (Alaska
1995); Ulmer, 33 P.3d at 776.
28
Ulmer, 33 P.3d at 776 (internal quotation marks omitted).
29
Kodiak Seafood Processors Ass’n, 900 P.2d at 1195; see also Ulmer, 33
(continued...)
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seeking a declaratory judgment because there is an added risk that the party is seeking
an advisory opinion,”30 which we seek to avoid.31
Sitka relies on Ulmer v. Alaska Restaurant & Beverage Ass’n,32 which
concerned mootness in the context of a ballot initiative. There, the State appealed the
superior court’s decision that the lieutenant governor’s petition summary was legally
defective.33 But the sponsors of the initiative had dropped out of the litigation,34 and we
were not convinced the sponsors could legally reinvigorate the petition if it were
upheld.35 We said that such “speculation about what other parties may choose to do in
the future is exactly the sort of indeterminacy the mootness doctrine was developed to
avoid.”36
Unlike Ulmer, the litigants in this case remain actually adverse: The parties
that filed the petition and litigated the case below remain actively engaged in the
litigation. More importantly, Sitka has pointed to no authority barring this petition from
29
(...continued)
P.3d at 776 (stressing the adversity requirement).
30
Kodiak Seafood Processors Ass’n, 900 P.2d at 1195.
31
Earth Movers of Fairbanks, Inc. v. State, Dep’t of Transp. & Pub.
Facilities, 824 P.2d 715, 718 (Alaska 1992).
32
33 P.3d 773 (Alaska 2001).
33
Id. at 774.
34
Id. at 776-77.
35
Id. In fact there was no reason to believe the sponsors would even try to
do so, since they were not taking part in the litigation. Id.
36
Id. at 777.
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being placed on an upcoming ballot.37 This is of particular importance because the
sponsors’ complaint does not request inclusion in any particular election. Accordingly,
the injunctive relief the sponsors request is available. And because their initiative could
be placed on an upcoming ballot, the sponsors’ request for declaratory relief upholding
the wording of their petition is appropriate — that is, our decision will affect the actual
petition in question and will not result in an advisory opinion for a hypothetical future
petition. Accordingly there is a live, definite, and concrete controversy, actively litigated
between adverse parties, touching upon the parties’ legal rights, and concerning
attainable relief. The case is therefore not moot. We turn to the merits of that
controversy.
B.
It Was Error To Hold That The Petition Is Contrary To Law And
Unenforceable.
Of the two grounds the superior court gave on which to uphold the
municipal clerk’s denial of the petition, the first is that the petition is contrary to existing
law. The superior court found Sitka’s existing procedures for land transactions conflict
with the Sitka Charter, and therefore the petition — requiring Sitka’s general procedures
to be used in Sawmill Cove — also conflicts with the Charter. Specifically, the conflict
is between Title 18’s requirement that high-value land transactions be ratified by voters
(i.e., through a referendum),38 and article 6, section 1 of the Sitka Home Rule Charter,
which states Sitka cannot have a referendum without advance support (signatures) from
20% of the number of people voting in the last election.
The sponsors first argue that this holding is a violation of their state
constitutional right to petition, and second that their petition does not add any new
37
See SGC 02.40.040 (2008) (providing time limits for gathering signatures
and rejecting petitions, but not for placing petitions on the ballot).
38
SGC 18.12.010(B) (2008).
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procedures, let alone constitute a referendum in violation of the Charter. Because we
agree with their latter claim, we cannot uphold the superior court’s ruling.
1.
The superior court’s ruling did not implicate the sponsors’
constitutional right to petition.
Article XI of the Alaska Constitution provides a right of initiative and
referendum regarding state law, whereas AS 29.26.100 reserves to the residents of
municipalities the right of local initiative and referendum.39 A city clerk may reject a
petition if it would not be enforceable as a matter of law.40 In Whitson v. Anchorage,41
we upheld a clerk’s denial and found unenforceable a municipal petition that conflicted
with a higher law — there a state statute.42 However, we liberally construe “the
constitutional and statutory provisions pertaining to the use of initiatives . . . so that the
people are permitted to vote and express their will on the proposed legislation.”43
The sponsors’ argument that the superior court’s order violated the Alaska
Constitution is unpersuasive because the constitutional provisions cited by the sponsors
pertain to state initiatives and referenda, while municipal initiatives and referenda are
instead governed by state statutes.44 We must look to those statutes, which allow a clerk
39
Carmony v. McKechnie, 217 P.3d 818, 820 (Alaska 2009); Griswold v. City
of Homer, 186 P.3d 558, 563 (Alaska 2008).
40
AS 29.26.110(a)(4).
41
608 P.2d 759 (Alaska 1980).
42
Id. at 761-62.
43
Carmony, 217 P.3d at 820 (internal quotations and bracketing omitted); see
also Citizens for Implementing Med. Marijuana v. Municipality of Anchorage,129 P.3d
898, 901 (Alaska 2006).
44
See Carmony, 217 P.3d at 820; Med. Marijuana,129 P.3d at 901.
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to deny a petition that would be unenforceable because it conflicts with existing law, to
resolve this first issue.45
2.
It was error to hold that the initiative was contrary to law.
The superior court held the initiative to be contrary to law on the theory that
the general Sitka municipal land disposal ordinance — in requiring a referendum for
high-value disposals — violates the Sitka Charter. The superior court held that the
initiative, in requiring Sawmill Cove land disposal transactions to come into conformity
with the general ordinance, would by definition also violate the Charter. We conclude
that if there is a problem with the existing ordinance, it cannot be the basis for finding
an initiative to be contrary to law.
The specific problem found by the court was that, while it was an initiative
in form, the sponsors’ petition “would create a blanket or compulsory referendum for
certain future actions of the Assembly. Specifically, the initiative mandates a referendum
vote for all future assembly actions [in high-value Sawmill Cove transactions].” It would
do so, the court found, because under current Sitka General Code 18.12.010, large-scale
disposals of municipal land must be ratified by the voters. The court characterized such
ratification as a referendum. In attempting to bring large-scale municipal land disposals
in Sawmill Cove under the same rules and procedures governing other large-scale
municipal land disposals, the initiative would subject them to the requirement of voter
approval. Thus, the court found, the initiative “dispenses with the Charter requirement
that a proposed referendum be supported by a certain number of elector signatures before
being put to the voters” and “is in direct violation of referendum requirements under City
Charter and implementing ordinance and is therefore unenforceable as a matter of law.”
As the sponsors persuasively argue, their initiative would do no more than
45
AS 29.26.100(a); Whitson, 608 P.2d at 761-62.
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bring disposals of municipal land in the Sawmill Cove area into conformity with Sitka
ordinances pertaining to disposal of municipal land generally. During the course of the
proceedings below and in this court, neither party argued Sitka’s general ordinances
pertaining to disposal of municipal land violate the Charter. Sitka’s argument that the
initiative would require a referendum for transactions of a certain size (and that requiring
a referendum without previously obtaining the signatures of a certain number of voters
would violate the Sitka Charter) completely ignores that Sitka law currently requires
exactly that: a referendum for transactions of a certain size. If Sitka believes there is a
conflict between SGC 18.20.010 and the Sitka Charter — an issue never explicitly
decided by any court, much less raised by any party in this litigation, and an issue Sitka
conceded at oral argument is not before this court — the city should amend either its
Charter or the ordinance. It may not be heard to argue that a citizen initiative, which
merely attempts to extend to all transactions a Sitka law currently applicable only to
some transactions, is contrary to law because current law violates the Sitka Charter.
Accordingly, we reverse the superior court’s ruling that the initiative in this
case was in direct violation of referendum requirements and therefore unenforceable as
a matter of law.
C.
It Was Error To Hold That The Petition’s Language Is Confusing And
Misleading.
As a second independent basis for upholding the clerk’s denial, the superior
court found the petition confusing and misleading. Specifically, the superior court found
the petition confusing and misleading because it does not inform voters that it would
result in automatic referenda contrary to the Sitka Charter. As explained above, we do
not agree that the petition would conflict with the Charter. Moreover, we conclude that
the petition is neither confusing nor misleading.
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We previously considered the legal sufficiency of proposed ordinances in
Faipeas v. Municipality of Anchorage46 and in Citizens for Implementing Medical
Marijuana v. Municipality of Anchorage,47 both of which regarded proposed ordinances
in Anchorage.48 In Faipeas, we based our analysis on an Anchorage Municipal Code
requirement that a petition “describe the ordinance or resolution sought by the petition
. . . .”49 We concluded that “[a] description which is untruthful, misleading, or which is
not complete enough to convey basic information as to what the ordinance does, cannot
be regarded as a legally adequate or sufficient description within the meaning of the
ordinance. The word ‘describe’ in a legal context carries the requirement that the
required description must be fair and accurate.”50 Further, we stated that “[t]he public
interest in informed lawmaking requires that referendum and initiative petitions meet
minimum standards of accuracy and fairness.”51 We then rejected the referendum
petition because the title of the petition was “partisan and potentially prejudicial.”52
46
860 P.2d 1214 (Alaska 1993).
47
129 P.3d 898 (Alaska 2006).
48
Faipeas, 860 P.2d at 1215; Med. Marijuana, 129 P.3d at 899.
49
Faipeas, 860 P.2d at 1219 (emphasis added) (internal quotation marks
omitted); Med. Marijuana, 129 P.3d at 901.
50
Faipeas, 860 P.2d at 1219; see also Med. Marijuana, 129 P.3d at 901
(reiterating Faipeas holding).
51
Faipeas, 860 P.2d at 1221.
52
Faipeas, 860 P.2d at 1217, 1221. The referendum petition in Faipeas was
titled: “REFERENDUM PETITION TO REPEAL A ‘SPECIAL HOMOSEXUAL
ORDINANCE.’ ” The contents of the petition were then laid out in much smaller print.
Id. at 1217. We concluded that “[w]hile opponents of the ordinance regard it as giving
(continued...)
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In Medical Marijuana, we considered the legal sufficiency of a proposed
ordinance in Anchorage.53 We again noted that the Anchorage Municipal Code required
a petition to “describe the ordinance or resolution sought by the petition”54 and stated that
our “main concern should be that all matters (legislative enactments, initiative petitions
and proposed resolutions) should be presented clearly and honestly to the people of
Alaska.”55 We then identified the various descriptive shortcomings and “puzzling
grammatical deficiencies” of the proposed ordinance, noting that: the petition did not
explain the context and purpose of the proposed initiative, the petition title was
“misleading as to the proposition’s scope,” and the petition included multiple confusing
52
(...continued)
special rights to homosexuals, proponents view it as merely adding sexual orientation to
the list of other important personal characteristics and choices such as gender, religion,
race, and marital status, which are protected from discrimination in public employment.”
Id.
53
Med. Marijuana, 129 P.3d at 901.
54
Id. The Anchorage Municipal Code no longer requires a petition to
“describe the ordinance or resolution sought by the petition.” See Faipeas, 860 P.2d at
1219 (internal quotation marks omitted). Anchorage Municipal Code 2.50.020 now
requires a petition “set out verbatim the ordinance or resolution sought to be enacted or
repealed by the petition” and “meet constitutional, charter and other legal requirements
or restrictions.” AMC 2.50.020(B)(3)(a), (c).
55
Med. Marijuana, 129 P.3d at 901 (emphasis in original).
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“whereas” clauses.56 On this basis we affirmed the superior court’s grant of summary
judgment on behalf of the city.57
Unlike the then-existing Anchorage Municipal Code in Faipeas and
Medical Marijuana, section 02.40.040 of the Sitka General Code provides that petitions
shall “set out fully the ordinance or resolution sought by the petition.”58 Notably, the
word “describe” does not appear in subsection (B).59
Even assuming that the
56
Id. at 901-05. The petition at issue in Medical Marijuana was entitled “An
Initiative Allowing Those Items Used with Marijuana Legal as Medicine or a Right to
Privacy.” Id. at 902. The text of the proposed initiative read:
Shall Article II of the Municipal Charter be amended to add
the following section:
(14) The right to buy, sell, or possess those items
which could be used to consume, grow or process
marijuana for medicine, or as is in accord with the
right to privacy protected by Article I, Section 22 of
the Alaska Constitution.
We noted in Medical Marijuana that the petition as a whole could be read either to
legalize marijuana paraphernalia in specific situations or to legalize possession and sale
of marijuana paraphernalia in “virtually all situations,” even if not intended to be used
in accordance with Alaska’s medical marijuana statute or the right to privacy. Id. at 904.
57
Id. at 905.
58
SGC 02.40.040(B)(2).
59
See SGC 02.40.040(B). The superior court concluded without discussion
that “[w]hile the Sitka Code does not contain the same requisite initiative description
requirement as did the Anchorage code in Faipeas, the standards employed by the court
are appropriately applied to the initiative language here.” We find that it is not clear
from the terms of the Sitka General Code whether Sitka intended to require a descriptive
element similar to the then-existing Anchorage Municipal Code, and we note that neither
Faipeas nor Medical Marijuana resolve the question of how much context, if any, is
(continued...)
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requirement to “set out fully the ordinance or resolution” contains the same descriptive
requirement as the then-existing Anchorage Municipal Code in Faipeas and Medical
Marijuana, the sponsors’ petition in the present case is neither confusing nor misleading.
The petition first identifies its purpose:
[T]o require that the administration and disposal of tidelands,
submerged land, and other real property in the Sawmill Cove
Industrial Park take place and is governed by Title 18 of the
Sitka General Code and, as necessary that disposals of
property within the Sawmill Cove Industrial Park are subject
to a public vote.
The petition then states that “Sitka General Code Section 2.38.080(a)(7) is repealed and
reenacted [such that all] land transactions shall be governed in accordance with Title 18
of the Sitka General Code.” The petition further provides that “Sitka General Code
Section 2.38.090 . . . is repealed.” Finally, the petition states:
Sitka General Code Section 18.12.010(B) is repealed and
reenacted [such that] . . . [u]pon sale or disposal of real
property valued over five hundred thousand dollars, or upon
lease of real property, including tidelands, of a value of more
than seven hundred fifty thousand dollars, the ordinance
authorizing the sale, lease, or disposition shall provide that
the ordinance be ratified by a majority of the qualified voters
voting at a general or special election. Any such sale, lease,
or disposition shall be revocable pending the outcome of the
election.
59
(...continued)
required where a home rule municipality’s own code does not contain a descriptive
requirement. But the question of whether a petition must include a description, even
where the relevant home rule municipal law does not mandate such a requirement, is a
constitutional issue not raised by the parties and not properly before us. Because we
conclude that the sponsors’ petition in the present case satisfies our standards as
announced in Faipeas and Medical Marjuana, we decline to reach these additional
questions.
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The petition clearly states its general purpose to bring the treatment of
Sawmill Cove Industrial Park real property under the same rules that govern all other city
property, and then it sets out the specific changes to Sitka law that will accomplish this
purpose. The petition does not seek to persuade voters with partisan language,60 nor is
it grammatically unclear such that voters could not reasonably understand what conduct
they are authorizing.61 The petition language is neither confusing nor misleading. We
therefore reverse the decision of the superior court.
V.
CONCLUSION
Because the initiative is neither contrary to existing law nor confusing or
misleading, we REVERSE the decision of the superior court. We REMAND for further
proceedings consistent with this opinion.
60
See Faipeas, 860 P.2d at 1219.
61
See Med. Marijuana,129 P.3d at 898.
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