| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
This site is possible because of the following site sponsors. Please support them with your business.
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
|
This site is possible because of the following site sponsors. Please support them with your business.
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Anchorage Citizens for Taxi Reform v. Municipality of Anchorage (12/22/2006) sp-6086
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. 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
| ANCHORAGE CITIZENS FOR | ) |
| TAXI REFORM, | ) Supreme Court No. S- 11453 |
| ) | |
| Appellant, | ) Superior Court No. 3AN-02-4930 CI |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| MUNICIPALITY OF ANCHORAGE, | ) No. 6086 - December 22, 2006 |
| and GREG MOYER, Clerk, and | ) |
| ANCHORAGE TAXICAB PERMIT | ) |
| OWNERS ASSOCIATION, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sen K. Tan, Judge.
Appearances: Karen Bretz, Anchorage, and
Kenneth B. Jacobus, Kenneth P. Jacobus, P.C.,
Anchorage, for Anchorage Citizens for Taxi
Reform. Mary B. Pinkel, Assistant Municipal
Attorney, and Frederick H. Boness, Municipal
Attorney, Anchorage, for Municipality of
Anchorage. James T. Brennan, Hedland,
Brennan & Heideman, Anchorage, for Anchorage
Taxicab Permit Owners Association.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
EASTAUGH, Justice.
CARPENETI, Justice, dissenting.
I. INTRODUCTION
Article XI, section 7 of the Alaska Constitution
prohibits using an initiative to make an appropriation.
Anchorage Citizens for Taxi Reform (Anchorage Citizens) submitted
to the Municipality of Anchorage a petition for an initiative
requiring the city to issue a taxi permit to any qualified person
paying an administrative fee. The municipal clerk rejected the
petition, reasoning that the initiative would make an
appropriation, in violation of article XI, section 7. When
Anchorage Citizens filed suit, the superior court granted summary
judgment to the municipality. We reverse. Because taxicab
permits are not public assets, we hold that the proposed
initiative would not make an appropriation. We also hold that
the initiative is not stale.
II. FACTS AND PROCEEDINGS
In February 2002 Anchorage Citizens filed a petition
for ballot initiative entitled Initiative Petition 2002 Taxi,
Limousine and Vehicle for Hire Reformation Act with the
Municipality of Anchorages municipal clerk. The initiative would
require the municipality to issue taxicab permits to any
qualified applicant paying an administrative fee.1 Anchorage
Citizens intended the initiative to be placed on the ballot in
the next municipal election, in April 2002. The municipal clerk
refused to certify the petition based on advice from the
municipal attorney. The municipal attorney warned that the
proposed initiative would require the municipality to pay just
compensation to avoid constitutional takings claims from current
taxi permit holders and would thereby impermissibly mandate an
appropriation of municipal funds.
Anchorage Citizens filed a complaint in superior court
seeking a declaration that the municipality and clerk Greg Moyer
erred by refusing to certify the initiative and an order placing
the initiative on the next municipal ballot. The Anchorage
Taxicab Permit Owners Association (Owners Association) filed a
motion to intervene, and the superior court granted the motion.
Anchorage Citizens and the Owners Association both moved for
summary judgment, and the municipality joined the Owners
Associations motion.
In March 2003 the superior court granted summary
judgment to the municipality and the Owners Association. The
court concluded that the initiative would result in an
appropriation of public assets, for two reasons: first, the
initiative would cause an unconstitutional taking that would
require an appropriation by the Anchorage Assembly to pay just
compensation; and second, the initiative would give away
municipally controlled resources, the permits themselves. After
entry of final judgment, the court clerk ordered Anchorage
Citizens to pay the Owners Associations litigation costs in the
amount of $3,292.39. The Owners Association then moved for
attorneys fees. The superior court denied the motion, finding
that Anchorage Citizens was a public interest litigant, but
affirmed the award of costs against Anchorage Citizens.
Anchorage Citizens appeals the courts grant of summary
judgment to the municipality and the cost order. The Owners
Association and the municipality argue that even if the
initiative is constitutionally valid, the initiative is stale.
The Owners Association also argues that relief should be denied
under the doctrine of laches.
III. DISCUSSION
Anchorage Citizens contends that the superior court
erred in concluding that the initiative would make an
appropriation. Anchorage Citizens argues that taxicab permits
are not public assets that would be appropriated by the
initiative. Anchorage Citizens also argues that this court does
not need to decide whether the permits are property the taking of
which would require just compensation. As to the latter
argument, any constitutional takings discussion here would be
premature and could unduly affect the initiative process.2 Thus,
the main question for us on appeal is whether the initiative
proposal would make an appropriation, a question that turns on
whether the taxicab permits are public assets.
A. Standard of Review
We review a superior courts grant of summary judgment
de novo and affirm if the moving party is entitled to judgment as
a matter of law.3 We draw all factual inferences in favor of,
and view the facts in the light most favorable to, the non-
prevailing party.4 We review questions of law, including the
constitutionality of a ballot initiative, using our independent
judgment, adopting the rule of law that is most persuasive in
light of precedent, reason, and policy.5 In matters involving
initiatives, we construe voter initiatives broadly so as to
preserve them whenever possible. However, initiatives touching
upon the allocation of public revenues and assets require careful
consideration because the constitutional right of direct
legislation is limited by the Alaska Constitution.6
Whether the superior court made an error in awarding
costs against a public interest litigant is a legal question. We
review legal questions using our independent judgment.7
B. The Initiative Would Not Appropriate Municipal Assets.
Article XI, section 1 of the Alaska Constitution gives
Alaskans the right of direct legislation.8 Section 1 states: The
people may propose and enact laws by the initiative, and approve
or reject acts of the legislature by the referendum.9 The
initiative power is limited, however, by article XI, section 7,
which provides that [t]he initiative shall not be used to . . .
make or repeal appropriations.10 That provision prohibits
initiatives that would give away public assets.11 We use a two-
part inquiry to determine whether a particular initiative makes
an appropriation.12 First, we determine whether the initiative
deals with a public asset.13 In a series of cases, we have
determined that public revenue,14 land,15 a municipally-owned
utility,16 and wild salmon17 are all public assets that cannot be
appropriated by initiative. Second, we determine whether the
initiative would appropriate that asset.18 In deciding whether
the initiative would have that effect, we have looked to the two
core objectives of the limitation on the use of the initiative
power to make appropriations.19 One objective is preventing give-
away programs that appeal to the self-interest of voters and
endanger the state treasury.20 The constitutional delegates were
concerned that [i]nitiatives for the purpose of requiring
appropriations [would] pose a special danger of rash,
discriminatory, and irresponsible acts. 21 The other objective is
preserving legislative discretion by ensur[ing] that the
legislature, and only the legislature, retains control over the
allocation of state assets among competing needs.22
Three classes of taxicab permits currently exist in
Anchorage: transferable general taxicab permits, limited taxicab
permits, and non-transferable taxicab permits. 23 Transferable
general permits may be transferred, leased, sold, or encumbered
with security interests with the approval of the Anchorage
Transportation Commission (commission).24 There are currently 158
transferable general permits. These permits have recently been
valued for as much as $125,000 each. Limited and non-
transferable permits may not be sold.25 The municipal code
provides that the commission must issue additional limited or non-
transferable permits if public convenience and necessity would be
best served by the issuance of one or more additional . . .
permits.26 The municipality claims, and Anchorage Citizens does
not contest, that since 1994, the municipality has issued four
non-transferable permits and no limited permits. The non-
transferable permits were issued at public auction; each one sold
for an amount between approximately $30,000 to $45,000.
The municipality argues that taxicab permits are
municipally controlled resources and thus public assets. It
analogizes this initiative to the one we deemed unconstitutional
in Pullen v. Ulmer,27 and suggests that the revenue-raising aspect
of the taxicab permitting system makes the permits themselves
municipal assets. The municipality does not, however, argue that
an initiative that affects the municipalitys power to permit
would be an appropriation.28 We therefore only consider whether
the permits themselves at the moment they are transferred from
the municipality to the permit holders are public assets.
In Pullen, we considered a proposed initiative that
would have given subsistence, personal use, and sport fisheries
priority over commercial fisheries to harvest salmon.29 We held
that the initiative would make an appropriation because
(a) salmon are public assets; and (b) the initiative reduced the
governments discretion over the fisheries and appealed to the
self-interest of sport, personal, and subsistence fishers.30
Although we noted that the state does not own salmon in the same
way it owns land or other assets, we advanced two reasons why
salmon are nonetheless public assets.31 First, the state benefits
financially from the collection of taxes imposed on businesses
involved in the fishing industry and from license fees imposed on
sport, personal use, and commercial fishers.32 Alaskas economy
and revenue base depend on the health of the salmon fisheries.33
And second, we noted that the public trust responsibility,
imposed by article VIII of the Alaska Constitution, to take care
of fish, wildlife, and water resources of the state, gives the
state property-like interests in salmon.34 We concluded that
naturally occurring salmon are, like other state natural
resources, state assets belonging to the state which controls
them for the benefit of all its people.35
Taxicab permits are not public assets. Unlike a
license to fish, or a permit to extract mineral resources, a
taxicab permit does not authorize the holder to take a public
resource. The underlying things of value the fares to be paid
by taxicab riders do not belong to the municipality. Moreover,
it appears that taxicab permits are not issued to raise money for
the municipality, but to serve a regulatory function. The code
states that public convenience and necessity shall determine
whether the municipality should issue additional permits.36 The
fact that the municipality has issued only four permits since
1994 confirms that the permits are issued primarily as a public
welfare and safety measure, not for revenue-raising purposes.
Even though the purchasers of the four permits at auction paid as
much as $45,000 for a permit, the total amount raised by selling
the four permits is not significant. We assume that if the
municipality intended revenue to be a major purpose for issuing
taxicab permits, it would have sold more than four permits since
1994. Because issuing the permits served a regulatory rather
than a revenue-raising function, and because the municipality
does not own the underlying resource the permits authorize
holders to take, we conclude that taxicab permits are not public
assets.37
C. The Initiative Is Not Stale.
The municipality and the Owners Association argue that
because so much time has passed since the petition was initially
signed, the signers of the petition are no longer qualified
voters as required by the charter. The charter requires that an
initiative petition be signed by a number of qualified voters
equal to at least ten percent of the voters who cast ballots at
the last regular mayoral election.38 An initiative must be
submitted to the voters at the next regular election held at
least 45 days after certification of the petition.39 The code
defines qualified voter as one who at the moment he signs a
petition for initiative or referendum, is legally entitled to
vote and who, by virtue of a current, valid residence address, is
registered to vote in state and Anchorage municipal elections.40
The municipality and the Owners Association assert that many of
the signers have since moved out of state or had their
registration lapse such that there is no longer a congruence
between the petition pool and the electorate.41
We agree with the municipality that the municipal code
expresses the intent that the voters who have signed a petition
are, to the extent possible, the same voters who will vote on it.
(Emphasis added.) But this proposition does not require exact
congruence between the signers and the registered voters. And
the Owners Association has failed to show that any substantial
discrepancy actually exists. Only four years have passed since
the clerk refused to certify the initiative. And Anchorage
Citizens has been seeking relief during this time period, as
expressly allowed in the municipal code, through the judicial
system.42
Moreover, we have previously explained that [b]ecause
the Alaska Constitution preserves the peoples power to propose
and enact laws through initiatives, . . . courts must give
statutory and constitutional regulations of initiatives liberal,
broad readings.43 Municipal law sets out two relevant
requirements: (1) an initiative in Anchorage must be signed by
persons who are eligible to vote and currently registered at the
moment [they] sign[] the petition;44 and (2) the petition must be
submitted to the voters at the next regular election held at
least 45 days after certification.45 The first requirement is
squarely met because it seems undisputed that the initiatives
signers were eligible and registered at the moment they signed.
And the deadline for meeting the second requirement has not
arrived, since the municipality has not yet certified the
initiative. When the municipality does so on remand and submits
the initiative to the voters for the next regular election, the
municipalitys qualified voter requirements will be strictly met.
The municipality and the Owners Association also urge
us to adopt the position taken by the California Supreme Court in
Gage v. Jordan, which held that an initiative measure that failed
because it lacked the requisite number of signatures could not be
automatically revitalized two years later by a subsequent
decrease in the number of signatures required for certification.46
But Gage is distinguishable because the initiative sponsors here
did not let the petition lay dormant as the petitioners did in
Gage.47 Instead, Anchorage Citizens timely sought certification
of its petition for initiative and upon the clerks rejection,
promptly filed a complaint in superior court. We therefore
conclude that the initiative is not stale.
We also reject the Owners Associations laches argument.
Laches operates to bar a claim when a court finds one party
caused unreasonable delay in seeking relief that resulted in
prejudice to the other party.48 A review of the record reveals
that all three of the parties filed, and were granted, numerous
requests for extensions of time with the superior court. And
contrary to the Owners Associations suggestion, Anchorage
Citizens, as the losing party below, had no obligation to seek a
final, appealable judgment.49 Anchorage Citizens did not cause
any unreasonable delay that would have warranted a dismissal of
its claim under laches.50
D. Costs May Not Be Awarded Against Anchorage Citizens.
The superior court found that Anchorage Citizens is a
public interest litigant but affirmed the court clerks award of
litigation costs to the Owners Association against Anchorage
Citizens. Anchorage Citizens argues that it was error to award
costs against it. The municipality and the Owners Association do
not contest the superior courts decision concerning Anchorage
Citizenss public interest litigant status, nor do they address
whether the superior court permissibly awarded costs to the
Owners Association after it found that Anchorage Citizens is a
public interest litigant. Because we reverse the judgment below,
the Owners Association is no longer the prevailing party. We
therefore vacate the cost award. We note, however, that public
interest litigants do not have to pay the opposing partys costs
or attorneys fees.51 Because it is undisputed that Anchorage
Citizens is a public interest litigant, litigation costs should
not have been awarded against it even when it was not the
prevailing party in the superior court.
Because it is now the prevailing party, Anchorage
Citizens may seek prevailing party fees and costs on remand.
IV. CONCLUSION
Because the taxicab initiative does not violate the
article XI, section 7 limitation on appropriation by initiative,
we REVERSE the judgment below. We also VACATE the award of costs
against Anchorage Citizens. We REMAND for entry of an amended
judgment ordering the municipality to certify the initiative and
present it to the voters at the next municipal election.
CARPENETI, J., dissenting
I dissent from todays opinion because I believe it
mischaracterizes the nature of the asset at issue in this case
and therefore misapplies our case law on appropriative
initiatives, especially our decision in Pullen v. Ulmer.1
Taxicab permits allow commercial operators to use a costly and
important public resource the public roads for private gain.
As such, they give direct access to a valuable and limited public
resource to those who receive them. This situation is legally
indistinguishable from the permits at issue in Pullen. Our
decision in that case should control the outcome here.
In Pullen we invalidated an initiative that would have
directed the state to favor non-commercial over commercial users
of salmon in issuing fishing permits. We acknowledged that the
state does not own wildlife in precisely the same way that it
owns ordinary property but we characterized the true question as
being whether the states interest in wildlife is such that it can
appropriately be characterized as state property subject to
appropriation.2 We found that it was, noting that a precipitous
decline in wildlife would affect the state in a significant
manner.3 Just as the people of Alaska have an interest in fairly
allocating the limited wildlife resources of our state, so do the
people of Anchorage have an interest in fairly allocating the use
of limited and publicly funded roadways for commercial purposes.
Todays opinion distinguishes Pullen on the basis that
[u]nlike a license to fish, or a permit to extract mineral
resources, a taxicab permit does not authorize the holder to take
a public resource. The underlying things of value the fares to
be paid by taxicab riders do not belong to the municipality.
But the thing of value here is not the right to collect fares it
is the right to use the public roads, a costly and important
public resource, for commercial purposes, here including the
solicitation of business.4 A taxicab permit holder has been
given a specific franchise which is no less an asset than is a
license to catch fish.5
Todays opinion also argues that the initiative cannot
constitute an appropriation because taxicab permits are not
issued to raise money for the municipality, but to serve a
regulatory function. This conclusion creates a false dichotomy.
Both purposes are present, as evidenced by the Anchorage
Municipal Codes treatment of taxicab permits. The code requires
the municipality to consider public convenience and necessity in
the granting of permits,6 and it requires that new permits be
sold at public auction7 to the highest qualified bidder.8
Consideration of the public convenience and necessity serves the
regulatory function, while the requirements that the permits be
sold at public auction to the highest bidder serve the revenue-
raising function. Moreover, $45,000 per permit is a significant
amount of money and the total amount raised through sales of
permits approximately $160,0009 cannot accurately be
characterized, as todays opinion does, as not significant. We
have previously characterized lesser amounts as significant10 and
substantial.11 That the municipality has issued only a limited
number since 1994 does not suggest, as todays opinion assume[s],
that revenue-raising is not a purpose of the code; rather, it
suggests that the municipality has carefully balanced two non-
exclusive purposes, regulation and revenue-raising.
Finally, todays opinion authorizes a give-away program
no less than the initiatives found unconstitutional in Pullen and
Alaska Action Center.12 Rather than limiting the number of
licenses as required by the public convenience and necessity, the
initiative requires that a license be issued to any qualified
applicant.13 And, rather than requiring that the license go to
the highest qualified bidder14 at public auction,15 the proposed
initiative would require that the license fee be limited to
administrative costs,16 approximately $825, rather than the
market value of approximately $45,000.
As we held in Staudenmaier v. Municipality of
Anchorage,17 a forced sale of a municipal asset even at market
value is an appropriation of that asset. Here, the forced sale
for $825 of an asset for which the municipality could garner as
much as $45,000 at auction is equivalent to a give-away of the
asset. Because the initiative would designate how the Anchorage
Assembly is to make use of municipal assets,18 it would effect an
appropriation. For these reasons I would affirm the judgment of
the superior court.
_______________________________
1 The initiative states, in relevant part:
The Proposition: Shall the charter be amended
to add the following sections to Article
XVII:
Section 17.14 Regulated vehicle permits
The Municipality shall issue a non-
transferable general taxicab permit to
any qualified applicant. The fees paid
for issuance or annual renewal of
taxicab, limousine, or vehicle for hire
permits shall be uniform. Issuance or
annual renewal fees required for any of
the aforementioned permits shall be
equivalent and set to cover real
administrative costs of issuing and
filing them only and not set so as to be
a substantial barrier to entry. The
exception to this act shall be that no
fees shall be levied on taxicab permits
for vehicles that are fully wheelchair
accessible.
Section 17.15 Regulated vehicle rates
and terms of service
The Municipality is hereby prohibited
from establishing rates for limousine or
executive sedan service. Any vehicle
dispatch service licensed by the
Municipality shall be allowed to
dispatch any vehicle.
2 We therefore do not decide here whether taxicab permits
are private property the taking of which requires just
compensation, nor do we decide whether the initiative would
result in any such taking. Our limited review is consistent with
the principle that an initiative may be reviewed before going to
the voters only to ensure compliance with the particular
constitutional and statutory provisions regulating initiatives.
State v. Trust the People, 113 P.3d 613, 626 (Alaska 2005)
(quoting Alaska Action Ctr., Inc. v. Municipality of Anchorage,
84 P.3d 989, 992 (Alaska 2004)). The municipal clerk may not
reject the measure on other constitutional grounds unless
controlling authority leaves no room for argument about its
unconstitutionality. Alaska Action Ctr., 84 P.3d at 992 (quoting
Brooks v. Wright, 971 P.2d 1025, 1027 (Alaska 1999)). No such
ground is present here. See id.
3 McCormick v. Reliance Ins. Co., 46 P.3d 1009, 1011
(Alaska 2002).
4 Rockstad v. Erikson, 113 P.3d 1215, 1219 (Alaska 2005).
5 Pullen v. Ulmer, 923 P.2d 54, 58 (Alaska 1996).
6 Id. (quoting City of Fairbanks v. Fairbanks Convention
& Visitors Bureau, 818 P.2d 1153, 1155 (Alaska 1991)).
7 See Alaska Civil Liberties Union v. State, 122 P.3d
781, 785 (Alaska 2005).
8 Thomas v. Bailey, 595 P.2d 1, 3 (Alaska 1979).
9 Alaska Const. art. XI, 1.
10 See also AS 15.45.010; Anchorage Municipal Charter
3.02(a).
11 Pullen, 923 P.2d at 58.
12 Alaska Action Ctr., 84 P.3d at 993 (making clear that
prohibition on appropriation by initiative encompasses land and
then considering whether initiative would appropriate that land);
Pullen, 923 P.2d at 58, 61 (considering whether salmon are public
assets and then considering whether initiative would appropriate
that public asset); Alaska Conservative Political Action Comm. v.
Municipality of Anchorage, 745 P.2d 936, 938 (Alaska 1987)
(noting that public utility is significant municipal asset and
that initiative that would require municipality to transfer
utility for one dollar would be appropriation of that asset).
13 Pullen, 923 P.2d at 58-61.
14 See Thomas v. Rosen, 569 P.2d 793, 796 (Alaska 1977)
(endorsing definition of appropriation that involved setting
aside of public revenue). Although Rosen presented the question
whether a voter-approved bonding proposition was an appropriation
bill within the meaning of article II, section 15 of the Alaska
Constitution, we have consistently cited to Rosen when noting
that public revenue or money cannot be appropriated by
initiative. See Pullen, 923 P.2d at 58; Bailey, 595 P.2d at 6
n.21.
15 See Bailey, 595 P.2d at 4-9 (state land may not be
appropriated by initiative); see also Alaska Action Ctr., 84 P.3d
at 993-95 (same); McAlpine v. Univ. of Alaska, 762 P.2d 81, 90-91
(Alaska 1988) (holding one part of initiative that would have
transferred land from University of Alaska to new community
college an invalid appropriation).
16 See Alaska Conservative Political Action Comm., 745
P.2d at 938 (A utility with $32.7 million equity is a significant
municipal asset.).
17 See Pullen, 923 P.2d at 61.
18 Id.
19 Id. at 63; see also City of Fairbanks, 818 P.2d at 1156
(noting that our cases focus on two parallel purposes for
preventing the making of appropriations through the initiative
process).
20 See Pullen, 923 P.2d at 62-63; see also Alaska Action
Ctr., 84 P.3d at 993-94; City of Fairbanks, 818 P.2d at 1156.
21 Bailey, 595 P.2d at 7 (quoting V. Fisher, Alaskas
Constitutional Convention 80-81 (1975)).
22 McAlpine, 762 P.2d at 88 (emphasis in original); see
also Alaska Action Ctr., 84 P.3d at 994; City of Fairbanks, 818
P.2d at 1156.
23 Anchorage Municipal Code (AMC) 11.20.016. Transferable
general permits were issued before February 22, 1994 and limited
and non-transferable permits have been issued since February 22,
1994. The municipality can no longer issue transferable general
permits. See AMC 11.20.040(B).
24 AMC 11.20.040.
25 AMC 11.20.035(C); AMC 11.20.037(C). Limited permits
restrict usage to a specific time or a specific geographic area
determined by the commission. AMC 11.20.035(A). Limited and non-
transferable permits are restricted to drivers who are both
owners and operators of the taxicab under the permit. AMC
11.20.035(D); AMC 11.20.037(D).
26 AMC 11.20.030. In making that determination, the
commission may consider, among other things, the public demand
for additional taxi service, the unfulfilled requests for
service, the reasonableness of waiting time for service, the
economic impact of additional permits on the viability of the
existing taxi industry, and the type of permit which would meet
the demand for additional service. AMC 11.20.030(B).
27 Pullen v. Ulmer, 923 P.2d 54 (Alaska 1996).
28 At oral argument before us, Anchorage Citizens argued
that the right to issue taxicab permits is an exercise of the
municipalitys police power, not a public asset subject to
appropriation.
29 Pullen, 923 P.2d at 55.
30 Id. at 61, 63.
31 Id. at 59-61.
32 Id. at 59.
33 Id.
34 Id. at 60-61.
35 Id. at 61.
36 AMC 11.20.030.
37 Because we hold that taxicab permits are not public
assets, we do not need to consider whether the initiative would
appropriate the permits.
38 Anchorage Municipal Charter 3.02(a).
39 Anchorage Municipal Charter 3.02(b).
40 AMC 2.50.010.
41 The Owners Association also suggests that the ten
percent requirement might not be met any longer if there were
more voters in the April 2003 election than in the 2000 election.
42 The code provides that the clerks decision may be
appealed to the superior court. AMC 2.50.030(C).
43 Kodiak Island Borough v. Mahoney, 71 P.3d 896, 899
(Alaska 2003); see also Pullen, 923 P.2d at 58; Yute Air Alaska,
Inc. v. McAlpine, 698 P.2d 1173, 1181 (Alaska 1985) ([A]ll doubts
as to all technical deficiencies or failure to comply with the
exact letter of procedure will be resolved in favor of
[preserving the initiative].) (quoting Boucher v. Engstrom, 528
P.2d 456, 462 (Alaska 1974)).
44 Municipal Charter 3.02(a) and AMC 2.50.010 (emphasis
added).
45 Municipal Charter 3.02(b).
46 Gage v. Jordan, 147 P.2d 387, 394 (Cal. 1944).
47 See id. at 389.
48 State, Dept of Commerce & Econ. Dev., Div. of Ins. v.
Schnell, 8 P.3d 351, 358-59 (Alaska 2000).
49 See Alaska R. Civ. P. 78(a) (Unless otherwise ordered
by the court, counsel for the successful party to an action or
proceeding shall prepare in writing and file and serve on each of
the other parties proposed findings of fact, conclusions of law,
judgments and orders.) (emphasis added). The Owners Association
suggests that Anchorage Citizens delayed the proceedings by not
seeking a final appealable judgment in time for the April 2003
elections.
50 The Owners Associations argument regarding prejudice
also fails. It states that the delay since the municipality
rejected the initiative would prejudice Anchorage municipal
voters. But this assertion is conclusory; and it is also
factually unsupported and not self-evident. The Owners
Association also reiterates the staleness argument that we
rejected above.
51 Matanuska-Susitna Borough Sch. Dist. v. State, 931 P.2d
391, 404 (Alaska 1997); Griswold v. City of Homer, 925 P.2d 1015,
1017, 1030-31 (Alaska 1996).
1 923 P.2d 54 (Alaska 1996).
2 Id. at 59.
3 Id.
4 Cf. In re Hathorns Transp. Co., 158 A.2d 464, 467 (Vt.
1960) (motor carrier certificate is a franchise, and is a
property right).
5 In Pullen we noted that the state does not own fish but
has property-like interests in them. 923 P.3d at 60-61. The
municipality does own the public roads, and thus the case for
allowing appropriation of part of this property via initiative is
even weaker than it was in Pullen.
6 AMC 11.20.030(C).
7 AMC 11.20.030(D).
8 AMC 11.20.030(D)(1).
9 This figure represents only the value of assets that in
the future may be lost to the public under the initiative. This
dissent does not touch on the far greater loss of value that may
befall the private sector; that is, current permit holders.
According to an affidavit filed by James B. Taylor, an officer of
the Anchorage Taxicab Permit Owners Association, there are 160
transferable general taxicab permits in Anchorage, each with a
market value of $125,000 per permit.
10 Murphy v. City of Wrangell, 763 P.2d 229, 233 (Alaska
1988) (possible judgment against city for $25,000 or greater
represented a significant amount of money).
11 See Fairbanks Fire Fighters Assn v. City of Fairbanks,
934 P.2d 759, 763 n.11 (Alaska 1997) ($4000 per week was a
substantial amount of money).
12 Alaska Action Ctr., Inc. v. Municipality of Anchorage,
84 P.3d 989, 993-94 (Alaska 2004).
13 Initiative, 17.14.
14 AMC 11.20.030(D)(1).
15 AMC 11.20.030(D).
16 Initiative, 17.14.
17 139 P.3d 1259, 1262 (Alaska 2006). See also Alaska
Conservative Political Action Comm. v. Municipality of Anchorage,
745 P.2d 936 (Alaska 1987) (forced sale of municipal asset at
below-market value constitutes appropriation).
18 Staudenmaier, 139 P.3d at 1263 n.23.
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
