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Faipeas, et al v. Municipality of Anchorage (10/15/93), 860 P 2d 1214
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Notice: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors
to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, in order that
corrections may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
CONNIE FAIPEAS, CHRISTINA NEAL, )
J. LES BAIRD, LOGAN WAKEFIELD, ) Supreme Court No. S-5605
ANNE MILTON, HERMAN COEN, JR., )
DAN CARTER, JERRY ROOP, ILEEN )
SELF, FARON W. PURGET, JOHN ) Trial Court No.
F. ALLEN, ) 3AN-93-2076 Civil
)
Petitioners, )
) O P I N I O N
v. )
)
MUNICIPALITY OF ANCHORAGE, )
)
Respondent. ) [Op. 4012 - October 15,
1993]
___________________________________)
Petition for Review from the Superior
Court of the State of Alaska, Third Judicial
District, Anchorage, Brian Shortell, Judge.
Appearances: Allison E. Mendel, Mendel
& Huntington, Anchorage, for Petitioners.
Denis R. Lazarus, Assistant Municipal
Attorney; Richard L. McVeigh, Municipal
Attorney, Anchorage, for Respondent.
Before: Moore, Chief Justice,
Rabinowitz, Burke and Matthews, Justices.
[Compton, Justice, not participating.]
MATTHEWS, Justice.
MOORE, Chief Justice, dissenting.
I. FACTS AND PROCEEDINGS
On January 12, 1993, the Anchorage Municipal Assembly
passed an ordinance which prohibited discrimination in public
employment on the basis of an individual's sexual orientation.
Soon thereafter a citizen's group, Citizens Against the Homo
sexual Ordinance, began circulating a petition for a referendum
on the ordinance. The group obtained more than the minimum
number of signatures required and filed the petition with the
municipal clerk. On February 22, 1993, the clerk certified that
the petition contained sufficient signatures and met the
requirements of law. Following this certification, the clerk
prepared the following referendum proposition for the April 20,
1993 municipal election:
Should AO 92-116(S), which adds
sexual orientation to the list of protected
classes for the purpose of public employment
or municipal contractors, remain law? Yes [
]
No [ ]
Petitioners, Connie Faipeas and others (Faipeas)
appealed the clerk's certification decision to the superior court
and sought a stay of the election, so far as it pertained to the
referendum, pending final decision of their appeal. The superior
court denied Faipeas' motion for a stay. Faipeas then sought
interlocutory review of this denial from this court. We granted
their petition for review and, on April 14, 1993, remanded this
case to the superior court with instructions to grant a stay.
Our order stated:
On consideration of the petition
for review and the emergency motion for stay,
filed on April 6, 1993,
IT IS ORDERED:
1. The petition for review from
the order of the superior court denying
petitioners' motion for a stay pending
resolution of their administrative appeal is
GRANTED.
2. The order denying petitioners'
motion for stay is REVERSED and this case is
REMANDED to the superior court with
instructions to stay the municipal election
scheduled for April 20, 1993, with respect to
the referendum on Anchorage Municipal
Ordinance 92-116(S), pending final
determination on the merits of the appeal by
the superior court.
3. a. Petitioners have made a
clear showing of probable success on the
merits with respect to their claim that the
referendum petition presented the ordinance
in a biased and partisan light. The title of
the referendum petition is partisan and
potentially prejudicial. It reads:
"Referendum Petition to Repeal A 'Special
Homosexual Ordinance.'" While opponents of
the ordinance regard it as giving 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.
b. The petition is subject
to the requirements adopted in Burgess v.
Alaska Lieutenant Governor, 654 P.2d 273, 275-
76 (Alaska 1982), that initiative and
referendum petitions and ballot proposition
summaries must be truthful and impartial.
Although these requirements are not
explicitly set out in the Anchorage charter
or ordinance pertaining to initiatives and
referendums, they are necessarily implied.
c. Since petitioners have
made a clear showing of probable success on
the merits with respect to one of their
contentions, injunctive relief is
appropriate. Rulings in election cases
should, if possible, be made prior to the
election in order to avoid needless expense
and the shock to public expectations which
would result if an election were overturned.
Since we have concluded that petitioners have
made a clear showing of probable success on
the merits with respect to their claim
concerning the partiality of the referendum
petition, it is not necessary for us to
examine whether a similar showing has been
made with respect to petitioners' contention
that the ballot summary is not adequately
descriptive.
4. This case is REMANDED to the
superior court for further action consistent
with this order. If it is not possible to
reprint ballots for the April 20 election
which do not contain the referendum, the
court is authorized to order such other
remedial measures as may be appropriate.
5. The relief we have granted
moots the emergency motion for stay.
6. An opinion will follow.1
This opinion sets forth more fully the reasons for our April 14th
order.
II. STANDARD OF REVIEW
Two question were decided by this court in granting a
stay of the municipal election with respect to the referendum:
1) Did the referendum petition fairly and
accurately describe the ordinance it sought to
repeal?
2) Must a referendum petition in an
election conducted by the Municipality of
Anchorage fairly and accurately describe the
ordinance it seeks to repeal?
Concerning the first question, Burgess v. Alaska
Lieutenant Governor, 654 P.2d 273 (Alaska 1982), controls. There
the lieutenant governor's summary of an initiative was challenged
as inaccurate and biased. After noting that the summary was
required to be accurate and impartial, we announced the
applicable standard of review: "In conducting this inquiry, we
will utilize a deferential standard of review." Id. at 276. In
a footnote we made it clear that the standard was not to be one
where the court substituted its judgment for that of the
lieutenant governor; instead, the lieutenant governor's summary
would be upheld unless we could not reasonably conclude that the
summary was impartial and accurate. "The burden is upon those
attacking the summary to demonstrate that it is biased or mislead
ing." Id. We applied the burden to Faipeas in this case.
Concerning the second question, this is an issue of law
upon which we exercise our independent judgment. In doing so, we
"adopt the rule of law that is most persuasive in light of
precedent, reason, and policy." Guin v. Ha, 591 P.2d 1281, 1284
n.6 (Alaska 1979).
III. DISCUSSION
The referendum petition which the citizens' group
circulated bore the following title:
REFERENDUM PETITION TO REPEAL A
"SPECIAL HOMOSEXUAL ORDINANCE"
In much smaller print, the petition read as follows:
In accordance with the provisions of
Section 3.02, Article III of the Home Rule
Charter for the Municipality of Anchorage and
Section 2.50 Anchorage Municipal Code, we the
undersigned qualified voters of the
Municipality of Anchorage submit this
Referendum Petition calling for the repeal of
Anchorage Ordinance 92-116(S), initially
passed January 12, 1993 (Amending Title 5 of
the Anchorage Municipal Code). In
particular, the undersigned request that the
question:
Should AO 92-116(S),
which adds "sexual orientation" to
the list of protected classes for
the purpose of public employment or
municipal contractors, remain law?
YES [ ] NO [ ]
be placed before the voters of the
Municipality of Anchorage as a referendum
question.
This petition, first
circulated on January 20, 1993.
All signatures must be secured
within 90 days from the date of
first circulation; and have the
required signatures, date of
signatures, residence and mailing
address of the signers.
Faipeas contended that the referendum petition was
inflammatory, inaccurate, and misleading. Additionally, they
argued that the proposed ballot question was too abbreviated to
impart to voters a reasonable understanding of the ordinance in
question. As noted in our order, we accepted Faipeas' character
ization of the referendum petition, stating:
The title of the referendum petition is
partisan and potentially prejudicial. It
reads: "Referendum Petition to Repeal A
'Special Homosexual Ordinance.'" While
opponents of the ordinance regard it as
giving 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.
Order at 3.a.2
The true controversy in this case is not, however,
whether the referendum petition characterized the ordinance in a
biased and partisan way. It clearly does so.3 The controlling
legal question is whether referendum petitions which do not
accurately and fairly characterize ordinances which they propose
to repeal are legally acceptable. We hold that they are not.
Misleading referendum petitions in elections conducted
by the State of Alaska are clearly not permitted. We held in
Burgess v. Alaska Lieutenant Governor, 654 P.2d 273 (Alaska
1982), that referendum petitions must be truthful and impartial.
In that case we approved of language used by the Colorado Supreme
Court that a petition summary must be "a fair, concise, true and
impartial statement of the intent of the proposed measure. The
summary may not be an argument for or against the measure, nor
can it be likely to create prejudice for or against the measure."
Id. at 275 (quoting In Re Second Initiated Constitutional
Amendment Respecting the Rights of the Public to Uninterrupted
Service by Public Employees of 1980, 613 P.2d 867, 869 (Colo.
1980)). We also approved the Arkansas Supreme Court's statement
that a petition summary should be "complete enough to convey an
intelligible idea of the scope and import of the proposed law,
and that it ought to be free from any misleading tendency,
whether of amplification, of omission, or of fallacy, and that it
must contain no partisan coloring." Id. (quoting Hope v. Hall,
316 S.W.2d 199, 201 (Ark. 1958)). Whether these requirements
apply to a referendum conducted by the Municipality of Anchorage
is the question we must decide.
Burgess interpreted the procedure for initiatives under
state law. This procedure differs from the initiative and
referendum procedures prescribed by the Anchorage Charter and
Ordinance. Under state law the initial application proposing an
initiative or referendum needs to be signed by only one hundred
qualified voters. Once the application is filed with the
lieutenant governor, the lieutenant governor prepares a petition
which must contain "a summary of the subject matter."4 The
petition is circulated by its proponents, and if signed by
qualified voters equaling at least ten percent of those who voted
in the last general election, the proposition must be placed on
the ballot.5 The summary prepared by the lieutenant governor is
required by statute to be "impartial." AS 15.45.090, AS
15.45.320.
In contrast, the statute governing petitions of a home
rule municipality states only that "[a] home rule charter shall
provide procedures for initiative and referendum." AS
29.10.030(a). There is no specific requirement of impartiality.
In addition, the initiative and referendum process governing the
Municipality of Anchorage does not contain a number of the steps
required in state elections. Petition proponents are not
required to file an application for a petition with the
municipality, nor does a city official prepare the petition.
Instead, the proponents prepare the petition and solicit
signatures of qualified voters without the assistance of
municipal officials. Petitions must contain signatures in an
amount equal to at least ten percent of the vote from the last
mayoral election.6 When the proponents believe that they have
obtained the necessary number of signatures, they may file the
petition with the municipal clerk who, under the charter, must
"certify on the petition whether or not it is sufficient."7
The municipal charter is silent concerning the
substantive content of an initiative or referendum petition. The
Anchorage ordinance pertaining to initiatives and referenda does,
however, impose requirements concerning the contents of
petitions. Section 2.50.030 states that a petition must
"describe the ordinance or resolution sought by the petition"and
contain the date that the petition is first circulated.
Framed in the terms of the Anchorage ordinance, the
question is whether section 2.50.030(A)'s mandate that the
ordinance be "described" requires that the description be
truthful, impartial, and comprehensible. Stated in this way, the
question essentially supplies its own answer. 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. The Supreme Court of
Montana recognized the necessity of this requirement:
"Description" in these
circumstances signifies a fair portrayal of
the chief features of the proposed law in
words of plain meaning so that it can be
understood by the persons entitled to vote.
It must be complete enough to convey an
intelligible idea of the scope and import of
the proposed law. It ought not to be clouded
by undue detail, nor yet so abbreviated as
not to be readily comprehensible. It ought
to be free from any misleading tendency,
whether of amplification, of omission, or of
fallacy. It must contain no partizan
coloring. It must in every particular be
fair to the voter to the end that intelligent
and enlightened judgment may be exercised by
the ordinary person in deciding how to mark
the ballot.
Sawyer Stores, Inc. v. Mitchell, 62 P.2d 342, 348 (Mont. 1936)
(quoting In re Opinion of the Justices, 171 N.E. 294, 297 (Mass.
1930)).8
The signature-gathering requirement of the referendum
process serves an important screening purpose. An ordinance
cannot be referred -- placed on the ballot -- merely because one
or a few citizens disagree with the ordinance. A substantial
showing of popular disapproval is required:
The signature gathering requirement is
important because it eliminates the
initiation of an expensive campaign process
when there is insufficient public support for
an initiative. Neither the state nor the
opponents of a proposed bill should be
required to spend the large sums of money
required when a proposed bill is put on the
ballot if there is not sufficient public
support for the initiative.9
If a petition were to mischaracterize an ordinance in a manner
designed to bring about general opposition to the ordinance, the
signature requirement could be too readily overcome and the
intended screening function of the requirement would be thwarted.
Moreover, referendum petitions under the Municipality
of Anchorage's system, as well as under the system followed in
state elections, are formal documents which are part of the
lawmaking process. They should be a source of accurate
information for all citizens concerning what is being proposed.10
Our state constitution contains a number of formal
safeguards which are designed to ensure that legislators are
fully informed and have had an opportunity to debate and
deliberate on the meaning of a proposed law.11 These safeguards
are "designed to engender a responsible legislative process
worthy of the public trust,"Plumley v. Hale, 594 P.2d 497, 500
(Alaska 1979); are meant to "ensure that the legislature knows
what it is passing,"North Slope Borough v. SOHIO Petroleum
Corp., 585 P.2d 534, 543 n.11 (Alaska 1978); and are meant "to
ensure deliberation prior to passage . . . ." Plumley, 594 P.2d
at 500.12 Safeguards with a similar purpose are contained in the
Anchorage Municipal Charter relating to the passage of ordinances
by the municipal assembly.13
These safeguards underscore a vital public interest in
ensuring that laws be made by informed lawmakers:
A basic requirement for good
governing decisions -- ones which properly
balance the interests of those involved and
create desirable results -- is an informed
electorate. The decision makers need to have
a thorough understanding of both sides of an
issue in order to make a reasoned, rational
decision. Such understanding comes only from
complete and accurate information.
Fountaine, supra note 9, at 738. The public interest in informed
lawmaking requires that referendum and initiative petitions meet
minimum standards of accuracy and fairness. "[O]ur main concern
should be that all matters (legislative enactments, initiative
petitions and even proposed resolutions) should be presented
clearly and honestly to the people of Alaska." Yute Air Alaska,
Inc. v. McAlpine, 698 P.2d 1173, 1188 (Alaska 1985) (Moore, J.,
dissenting.) To this end it is necessary "[t]o guard against
inadvertence by petition-signers and voters and to discourage
stealth by initiative drafters and promoters . . . ." Id. at
1189.
IV. CONCLUSION
For the above reasons, we concluded that Faipeas had
made a showing that they would probably succeed on the merits of
their contention that the petition circulated in this case failed
to meet applicable legal requirements.
MOORE, Chief Justice, dissenting.
I respectfully dissent from the court's opinion because
it improperly imposes state referendum requirements on Anchorage
home-rule referendum procedure. By striking the referendum from
the ballot, I believe that the court unnecessarily and
unreasonably interfered in the political process.
I. ADDITIONAL FACTS
From December 1992 to January 1993, the Anchorage
Assembly debated the merits of ordinance AO 92-116. On four
separate occasions, the Assembly conducted public hearings to
enable citizens to express their views both for and against the
ordinance. A total of 195 citizens, representing both sides of
the issue, spoke at the public hearings. The hearings were
broadcast on local cable television. The Assembly passed the
ordinance on January 12, 1993. The mayor vetoed it three days
later, and the Assembly overrode the veto on January 19.
Shortly after the Assembly overrode the veto a group of
citizens began circulating a petition seeking a referendum on the
ordinance. The referendum sponsors also placed a copy of the
petition in the local newspaper. As the court notes, with
masterful understatement in my opinion, "[t]he group obtained
more than the minimum number of signatures required."14 Following
the Municipal Clerk's certification of the petition, Faipeas
challenged the clerk's decision in superior court.
II. DISCUSSION
The court strikes the referendum from the ballot by
reading requirements applicable to state referendum procedures
into the word "describe"as it is used in 2.56.030 of the
Anchorage Municipal Code. I find the court's interpretation
strained and its analysis unpersuasive.
The court begins by focusing on state referendum
procedures, noting that state referendum petitions "must be
truthful and impartial." Opinion at 7. This requirement is
entirely reasonable given that AS 15.45.320 mandates that state
referendum petitions contain an "impartial summary of the subject-
matter." The court then reasons that because the state imposes a
requirement of impartiality on its own officers, it should also
be imposed on the citizens of a home-rule municipality as a
matter of public policy. Opinion at 12-14. The only acceptable
referendum description, in the court's view, is one devoid of any
partisan sentiment.
To bolster this construction, the court relies on
language drawn from a Montana case, Sawyer Stores, Inc. v.
Mitchell, 62 P.2d 342, 348 (Mont. 1936), in which the Montana
Supreme Court construed a statute requiring a ballot to include
a legend "descriptive of the measure proposed." See Opinion at
10. The court's reliance on this case is misplaced. The court
fails to distinguish between the function of petitions and
ballots. The requirement that the Sawyer court quite properly
imposed on ballots has no place on petitions. A ballot is the
paper upon which each voter gives expression to his or her
choice. Id. A biased, misleading, or inaccurate ballot
undermines the voting process. Id. A petition, however, is the
vehicle by which citizens bring an issue into the public arena.
It is the beginning, not the end, of political debate.
Equally strained is the court's attempt to justify
imposing this requirement on petitioning citizens by "necessarily
impl[ying]" state petition requirements into the Anchorage
procedure. The court's analogy understates the fundamental
differences between the state and Anchorage referendum processes.
It also ignores the fact that the state deliberately opted not to
impose those requirements on Anchorage and other home-rule
municipalities.
Under the state scheme, citizens propose a referendum
by filing an application and a $100 filing fee with the
lieutenant governor. AS 15.45.260. Within seven calendar days,
the lieutenant governor must review the application and either
certify it or notify the referendum sponsors of the grounds for
denial. AS 15.45.300. The three grounds for denial do not
include the partiality of the petition. If the application is
certified, the lieutenant governor must prepare a petition within
seven calendar days. AS 15.45.320. It is here that the state's
requirement of impartiality comes in. The state-prepared
petition must contain, among other things, an impartial summary
of the subject matter of the act. Id.
The state referendum procedure is directly analogous to
the procedure the legislature mandated for non-home rule
municipalities.15 However, the legislature expressly declined to
impose those requirements on Anchorage and other home-rule
municipalities. Instead, it gave them the right to develop their
own procedures.16
The Municipality of Anchorage exercised that right and
placed the responsibility of preparing petitions directly in the
hands of its citizens. Under the Anchorage Municipal Code,
initiative and referendum petitions must:
A. Describe the ordinance or
resolution sought by the petition;
B. State upon the petition, when
circulated, the date of first
circulation of the petition;
C. Contain the statement, when
circulated, that the signatures on the
petition must be secured within 90 days
from the date of the first circulation;
and
D. Have the required signatures,
dates of signatures and resident and
mailing addresses of the signers, unless
the signers' qualifications can be
ascertained from the state voter
registration rolls on the basis of
either residence or mailing address.
AMC 2.50.030. The petition must be signed by a number of
qualified voters equal to at least 10 percent of the votes cast
at the last regular mayoral elections. AMC 2.50.040(A). Nowhere
does the ordinance require that the petition description be free
from partisan coloring.
Anchorage would of course be free to require that
citizen prepared petitions be couched in neutral language. But
there is no constitutional or statutory requirement that it do
so.17 Courts across the country have repeatedly recognized the
broad authority of home-rule municipalities to define the manner
in which their citizens may exercise the powers of initiative and
referendum. See Leach & Arnold Homes, Inc. v. City of Boulder,
507 P.2d 476, 477 (Colo. App. 1973); see also Burks v. Lafayette,
349 P.2d 692 (Colo. 1960); Brown v. Boyd, 91 P.2d 926 (Cal. App.
1939); Long v. City of Portland, 98 P. 149 (Ore. 1908); State ex
rel. Snyder v. Board of Elections of Lucas County, 69 N.E.2d 634,
dismissed as moot, 67 N.E.2d 322 (Ohio 1946); see generally 5
Eugene McQuillin, The Law of Municipal Corporations, 16.42 at
290 (3d ed. re. vol. 1989).
However, in an exercise of judicial "interpretation,"
the court concludes that the term "describe,"as used in the
Anchorage ordinance, necessarily implies that the description be
impartial and that the petition itself must be "a source of
accurate information for the uncommitted citizen concerning what
is being proposed." I disagree. When citizens launch a
referendum drive, they are by their very actions expressing
disapproval and disagreement with their government. They are
expressing this disagreement both to the government and to their
fellow citizens. The entire referendum process is inherently
"biased and partisan"; it is political.
The court suggests that the partisan rhetoric of the
petition title in this case thwarted the screening function of
the petition in the referendum process. Opinion at 11. The
court's reasoning is a classic example of ivory-tower thinking.
The practical reality is that petition tables are staffed by
enthusiastic advocates who disseminate their positions with
banners and slogans. In the face of such partisanship, I find it
highly doubtful that a neutrally worded petition title would have
measurably affected the petition drive itself.18
In addition, it must be remembered that this case
involved a referendum seeking to repeal an existing ordinance,
rather than an initiative proposing new legislation. As the
Oregon Supreme Court has observed, the distinction is
significant.
The purpose of the petition for
referendum is to identify a particular
enactment of the legislative assembly which
the petitioners desire to have referred to
the people -- a question of identity, not of
legislation. There is a distinction in that
regard between the referendum and the
initiative, in which latter legislation is
initiated and the whole matter must be
formulated just as it is to be submitted to
the people, while in the referendum it is
only a question of the approval or
disapproval by the people of what the
Legislature has already enacted into law.
Palmer v. Benson, 91 P. 579, 580 (Ore. 1907); see also Columbia
River Salmon & Tuna Packers Ass'n v. Appling, 375 P.2d 71, 73
(Ore. 1962) (reiterating functional differences between
initiatives and referendums).
The description requirement of the Anchorage Municipal
Code in the referendum context is clearly designed to identify
the ordinance challenged. The petition in this case did just
that:
[W]e the undersigned qualified voters of
the Municipality of Anchorage submit this
Referendum Petition Calling for the repeal of
Anchorage Ordinance 92-116(S), initially
passed January 12, 1993 (Amending Title 5 of
the Anchorage Municipal Code). In
particular, the undersigned request that the
question:
Should AO 92-116(S),
which adds "sexual orientation" to
the list of protected classes for
the purpose of public employment or
municipal contractors, remain law?
YES [ ] NO [ ]
be placed before the voters of the
Municipality of Anchorage as a referendum
question.
The biased wording in the petition's title does not negate the
fact that the petition itself identified the ordinance in
question. The title was, at most, surplusage.
This court has adopted a deferential standard of review
when analyzing the sufficiency of initiative and referendum
petitions. See Burgess v. Alaska Lieutenant Governor, 654 P.2d
272, 276 (Alaska 1982).
In reviewing an initiative prior to
submission to the people, the requirements of
the constitutional and statutory provisions
pertaining to the use of initiatives should
be liberally construed so that "the people
[are] permitted to vote and express their
will on the proposed legislation . . . all
doubts as to technical deficiencies or
failure to comply with the exact letter of
procedure will be resolved in favor of the
accomplishment of that purpose."
Yute Air Alaska, Inc. v. McAlpine, 698 P.2d 1173, 1181 (Alaska
1985). The court has disregarded this precedent and stretched to
find a defect in the petition. This act of judicial legislation
has unreasonably deprived the citizens of Anchorage of the
opportunity to vote on this issue.
_______________________________
1 Chief Justice Moore dissented from this order.
2 Our conclusion on this point made it unnecessary to reach
Faipeas' alternative argument concerning the ballot question and
we made no ruling on that point. Order at 3.c.
3 Neither in its opposition to the petition for review nor
on its petition for rehearing did the municipality contend that
the petition was not flawed by partisanship. The petition also
inaccurately represents the ordinance, as the ordinance does not
apply only to homosexuals, but prohibits discrimination based on
sexual orientation, whether homosexual or heterosexual. (The
Equal Employment Opportunities Commission has ruled that a claim
that promotion was denied because claimant was a heterosexual
rather than a homosexual was not cognizable under federal law
because sexual preference is not a protected characteristic. See
Jordan v. Brady, 1993 WL 96127 (N.D. Ill.).) The petition also
fails to describe a provision of the ordinance which amends the
unlawful employment practices chapter of the Anchorage equal
rights ordinance. The amendment prohibits any interpretation
requiring "that the less qualified be preferred over the better
qualified because of race, color, religion, sex, national origin,
marital status, or sexual orientation." This prohibition was
newly added by the ordinance as to all forbidden bases for
discrimination, not merely sexual orientation. AO 92-116(S)
2(F).
4 Alaska Const. art. XI, 3.
5 Id. The constitution also contains a requirement that the
signers must be "resident in at least two-thirds of the election
districts of the state . . . ." Id.
6 Charter, Mun. of Anchorage 3.02(a).
7 Id. 3.02(b).
8 The fair and accurate description requirement arguably has
constitutional stature. Article I, section 2 of the Alaska
Constitution states:
All political power is inherent in
the people. All government originates with
the people, is founded upon their will only,
and is instituted solely for the good of the
people as a whole.
Referring to this provision in Boucher v. Bomhoff, 495 P.2d 77,
78 (Alaska 1972), we stated: "it is basic to our democratic
society that the people be afforded the opportunity of expressing
their will on the multitudinous issues which confront them." A
logical corollary to this interpretation of Article I, section 2
is that the people have a right to a fair and accurate summary of
issues on which they are being asked to express their will. This
right would extend to petitions in all elections subject to the
state constitution, including those conducted by home rule
municipalities.
9 Note, Cynthia L. Fountaine, Questioning the Desirability
and Constitutionality of Legislating by Initiative, 61 S. Cal.
L. Rev 735, 746 (1988).
10 The importance of an accurate and informative petition was
also noted by the Montana Supreme Court:
The majority of qualified electors
are so much interested in managing their own
affairs that they have no time carefully to
consider measures affecting the general
public. A great number of voters undoubtedly
have a superficial knowledge of proposed laws
to be voted upon, which is derived from
newspaper comments or from conversation with
their associates. We think the assertion may
safely be ventured that it is only the few
persons who earnestly favor or zealously
oppose the passage of a proposed law,
initiated by petition, who have attentively
studied its contents and know how it will
probably affect their private interests. The
greater number of voters do not possess this
information . . . .
Sawyer Stores, Inc., 62 P.2d at 348-49 (quoting Westbrook v.
McDonald, 43 S.W.2d 356, 360 (Ark. 1931).
11 Article II, 13 of the Alaska Constitution provides:
Every bill shall be confined to one
subject unless it is an appropriation bill or
one codifying, revising, or rearranging
existing laws. Bills for appropriations
shall be confined to appropriations. The
subject of each bill shall be expressed in
the title. The enacting clause shall be:
"Be it enacted by the Legislature of the
State of Alaska."
Article II, 14 provides:
The legislature shall establish the
procedure for enactment of bills into law.
No bill may become law unless it has passed
three readings in each house on three
separate days, except that any bill may be
advanced from second to third reading on the
same day by concurrence of three-fourths of
the house considering it. No bill may become
law without an affirmative vote of a majority
of the membership of each house. The yeas
and nays on final passage shall be entered in
the journal.
12 We have held that at least one of these safeguards, the
single subject rule, applies to state initiatives. Yute Air
Alaska, Inc. v. McAlpine, 698 P.2d 1173 (Alaska 1985).
13 Thus except for emergency ordinances, ordinances may not
be introduced and adopted at the same meeting. Instead, once an
ordinance is introduced in writing and receives the approval of
three assemblymen, the municipal clerk must publish a notice
containing either the text of the ordinance or "an informative
summary of its contents"calendaring a time and place for a
public hearing concerning the ordinance and advising the public
as to where copies of the ordinance may be obtained. The public
hearing must be held at least seven days after publication of the
notice. Charter, Mun. of Anchorage 10.01(b). Further, the
Municipal Code adds a requirement that each ordinance must be
read before any vote is taken on it. AMC 02.30.070(G).
14 The group needed to obtain 5,672 signatures to place its
petition on the ballot. Within a month after the mayor's veto
was overridden, the group turned 20,000 signatures into the
Municipal Clerk's office.
15 In non-home rule municipalities, citizens seeking a
referendum must file an application, signed by at least ten
people, with the municipal clerk. AS 29.26.110. The clerk must
certify the referendum application within two weeks if the clerk
determines the application is in the proper form. AS 29.26.110.
Within two weeks of certification, the clerk must prepare a
petition containing a summary of the ordinance or resolution to
be referred. AS 29.26.120. This petition must be signed by 25
percent of the votes cast in the last regular election if the
municipality has fewer than 7,500 persons, or 15 percent of the
votes cast in the last regular election if the municipality has
7,500 persons or more. AS 29.26.130(b).
16 The Alaska Legislature left home-rule municipalities free
to choose their own referendum procedures. When the legislature
revised the municipal code in 1975, it explicitly stated which
provisions it intended to apply to home rule municipalities:
Home rule limitations are gathered
together and listed in one place in Article 2
of the chapter (Sec. 29.13.100) [renumbered
to 29.10.200 in 1985]. The listing makes
explicit the legislative intent as to which
provisions of the code apply to home rule
municipalities, as prohibitions on acting
otherwise than as provided, and which do not.
Additionally, the provisions themselves
contain a specific reference making them
applicable to home rule municipalities. The
listing and specific references in the
provisions are intended to coincide. (As
additional provisions of law are enacted
subsequent to the time the code takes effect,
provisions which are intended to apply to
home rule as well as to general law
municipalities as prohibitions on acting
otherwise than as provided should make a
specific reference to home rule
municipalities within the provision and
should, under the form of the new code, also
be included in the listing under Sec.
29.13.100, so as to maintain clearly the
legislative distinction as to which code
provisions apply to home rule municipalities
and which do not.)
1972 House Journal 1720 and 1972 Senate Journal Supp. 3, p.3
(emphasis added).
AS 29.10.200 does not list the non-home rule initiative
and referendum procedures. The Legislature unquestionably did
not intend them to apply to home-rule municipalities. To the
contrary, it intended non-home rule municipalities to be
unconstrained by requirements controlling state initiative and
referendum procedures.
17 I do not find persuasive the court's curious
constitutional argument that because "it is basic to our
democratic society that the people be afforded the opportunity of
expressing their will on the multitudinous issues which confront
them," they should be denied the right to raise those issues
before the public forum in their own words. See Opinion at 11,
n.8 (quoting Boucher v. Bomhoff, 495 P.2d 77, 78 (Alaska 1972)).
18 Some commentators have cast doubt on the notion that
language in petitions and ballots has a measurable effect on
election results. See Robert Horvat, "The Oregon Initiative
Process: A Critical Appraisal" 65 Oregon L. Rev. 169, 172
(1984).
Furthermore, the citizens of Anchorage were unusually
knowledgeable about this particular ordinance. The Assembly
considered the issue for weeks. It held four public hearings, at
which 195 citizens expressed their views. The hearings were
broadcast on local cable television. Additionally, the ordinance
received extensive coverage by the local electronic media and
press. For example, from December 1, 1992, when the Assembly
held the first public hearing concerning the ordinance, until
February 16, 1993, the day before the petitions were given to the
Municipal Clerk, the Anchorage Daily News had at least seven
articles on page one; 11 articles on the first page of the
paper's Metro section; 37 letters to the editor; and 16
editorials and other articles referring to the ordinance.
Because over twenty thousand voters signed the petition in this
case, while only 5,672 were required, an impartially worded
petition would have almost certainly garnered the number of
signatures required to place the referendum on the ballot.
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