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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
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repealed this state traffic regulation in June of 1979.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
regulation.
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
policy.
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
omitted).
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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