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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Washington's Army v. City of Seward (04/25/2008) sp-6253
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
| WASHINGTONS ARMY, DEBRA | ) |
| HAFEMEISTER, BILL HEARN, | ) Supreme Court No. S- 12350 |
| MARILEE KOSZEWSKI, and | ) |
| SHARYL SEESE, | ) Superior Court No. 3SW-06-20 CI |
| ) | |
| Appellants, | ) O P I N I O N |
| ) | |
| v. | ) No. 6253 April 25, 2008 |
| ) | |
| CITY OF SEWARD and JEAN | ) |
| LEWIS, CITY CLERK, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Seward,
Harold M. Brown, Judge.
Appearances: Individual Appellants Debra
Hafemeister, Bill Hearn, Marilee Koszewski,
and Sharyl Seese, pro se, Seward. Cheryl A.
Brooking, Wohlforth, Johnson, Brecht,
Cartledge & Brooking, Anchorage, for
Appellees.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. [Bryner,
Justice, not participating.]
EASTAUGH, Justice.
I. INTRODUCTION
Citizens seeking a public vote on a locally
controversial plan to vacate part of Washington Street in Seward
filed with the City of Seward clerk an application for a
referendum petition. The clerk denied their application.
Because there was no city council action to refer to the voters,
the clerk did not err in denying the petition on the ground the
vacation could not be challenged by referendum. We therefore
affirm the superior court judgment that dismissed the citizens
complaint challenging the clerks denial of their application.
II. FACTS AND PROCEEDINGS
The City of Seward, the National Park Service, and the
U.S. Forest Service cooperated in planning construction of a
proposed multi-agency facility in Seward known as the Mary Lowell
Center. The proposed center would provide administrative offices
and visitor services for the National Park Service and U.S.
Forest Service and a conference facility for use by those
agencies, the city, and the public. Because the building plans
for the center called for vacating part of Washington Street, the
National Park Service asked the city to vacate Washington Street
between Fourth and Fifth Avenues.
The City of Seward Planning and Zoning Commission
passed a resolution in October 2005 recommending that the Kenai
Peninsula Borough (KPB) approve the vacation request. The KPB
Planning Commission approved the vacation request on November 28,
2005, and forwarded the proposed vacation to the Seward City
Council with notice that [t]he City Council has 30 days from
November 28, 2005 in which to veto the decision of the [KPB]
Planning Commission. If no veto is received from the Council
within the 30-day period, the decision of the Commission will
stand.
On December 12, 2005, the Seward City Council
considered Resolution 2005-132, which, had it passed, would have
vetoed the KPB Planning Commissions November 28 decision. The
veto resolution received one vote in favor and three votes
against; three council members were absent. Eight days later the
council voted on a motion to reconsider its December 12 vote. By
a vote of three to three, the motion to reconsider failed.1
In January 2006 several Seward citizens filed with the
City of Seward clerk an application for a referendum petition.
The proposed referendum would have asked Seward voters to repeal
what the application described as [t]he December 12, 2005 vote of
the City Council on Resolution 2005-132 which affirmed partial
vacation of Washington Street by the Kenai Peninsula Borough
Planning Commission[] on November 28, 2005. The city clerk
denied the petition application, stating that referenda are only
available to challenge passed resolutions and that Resolution
2005-132 did not pass, and also that a conveyance of land is an
appropriation and thus an invalid subject for referendum under
the Alaska Constitution. The clerks denial letter implicitly
reasoned that the street vacation was a conveyance of land.
In March 2006 an entity called Washingtons Army sued
the city and the city clerk in superior court; the complaint
sought declaratory and injunctive relief to require the clerk to
certify the application for the referendum petition. The
complaint described Washingtons Army as an association of
individuals who are residents of the City of Seward, and who
oppose the proposed vacation of a portion of Washington Street in
Seward, Alaska. The only members of Washingtons Army the
complaint identified were Debra Hafemeister, Bill Hearn, Marilee
Koszewski, and Sharyl Seese.
The superior court denied the plaintiffs request for a
temporary restraining order or a preliminary injunction. The
court reasoned that vacating a street is an appropriation of city
assets and that, per the Alaska Constitution, referenda cannot be
used to repeal appropriations of city assets.
Washingtons Army then filed with this court an
emergency motion for injunctive relief. We denied that motion,
and on the same day the superior court entered final judgment for
the defendants.
Washingtons Army and Debra Hafemeister and the other
individual plaintiffs appeal the superior courts denial of their
request for declaratory and injunctive relief.2
III. DISCUSSION
A. Standard of Review
Appellant Hafemeister makes two main arguments on
appeal. First, she argues that the superior court erroneously
held that the city council consented to the vacation by operation
of law. Second, she argues that the proposed referendum will be
constitutional because a street vacation is not an appropriation.
In addition to responding to Hafemeisters arguments, the city
argues that Washingtons Army as an entity lacks standing to sue.
These arguments raise questions of law subject to our
independent review.3 In reviewing questions of law, we will
adopt the rule of law that is most persuasive in light of
precedent, reason, and policy.4
B. Standing
An entity must have corporate status or possess the
right to sue in order to have standing.5 The ability to sue or
be sued has traditionally centered on the ability of a party to
be accountable for the process and results of legal proceedings.6
Washingtons Army, as an entity, lacks standing because it does
not have a person or a legal entity that may be held responsible
for the process and results of the legal proceeding and thus does
not have the ability to sue or be sued.7 Nonetheless, the
individual citizens identified in the complaint as members of
Washingtons Army possess taxpayer-citizen standing and were
therefore each eligible to sue individually.8 Likewise, they
each have standing to appeal the adverse judgment.9
C. Validity of the Proposed Referendum Petition
The proposed referendum petition was potentially
problematic for two main reasons. First, if there was no action
by the Seward City Council, there was nothing for city voters to
repeal. Second, if vacating the street was an appropriation, the
referendum would be invalid because a referendum may not repeal
an appropriation.
We address only the first reason because it is
dispositive of the appeal. We therefore do not reach the issue
of whether vacating Washington Street was an appropriation.
The citizens applied for the referendum petition for
the stated purpose of asking Seward voters to repeal the December
12, 2005, vote of the Seward City Council on Resolution 2005-132
which affirmed partial vacation of Washington Street by the Kenai
Peninsula Borough Planning Commission[].10 The Seward City
Charter contemplates a referendum from any act of the council.11
Per the charter, official council action requires the vote of at
least four council members.12 The Seward City Code provides that
[t]he voters of the city, by referendum, may approve or reject
any ordinance passed by the city council except as otherwise
provided in this section.13 As both sides agree here, even though
the city council voted twice, it never passed an ordinance or a
resolution regarding the vacation of Washington Street. Only if
at least four members had voted for a particular result would the
council have taken official action within the meaning of the city
charter and the city code.14 The council took no official action
when it voted on December 12 because fewer than four votes were
cast for either possible result. Because the council passed no
ordinance or resolution regarding the vacation, it took no
action. The citys referendum provision therefore did not apply
because there was no city council action to refer to the voters.
The city clerk did not err in denying the application for a
referendum petition on this ground.
IV. CONCLUSION
Because the city council did not take action, nothing
could be referred to the voters and the clerk did not err in
denying the petition. We therefore AFFIRM the superior court
judgment dismissing the citizens complaint challenging the clerks
denial of the petition application.
_______________________________
1 In a February 2006 letter the city stated that the
voting tally was threetwo. The parties on appeal agree that this
tally was erroneous and that the true tally was threethree, and
thus still one vote shy of the four votes needed to pass the
reconsideration motion.
2 As discussed in Part III.B, Washingtons Army as an
entity does not have standing to sue or appeal. The complaint
alleged that Washingtons Army was an association of individuals
who are residents of the City of Seward, and who oppose the
proposed vacation. The plaintiffs were represented by counsel in
the superior court. After entry of judgment, counsel commenced
this appeal and then withdrew. Robert Linville, who is not an
admitted lawyer, wrote the appellants opening and reply briefs.
The captions of those briefs list the appellants as Washingtons
Army, Debra Hafemeister, Bill Hearn, Marilee Koszewski, and
Sharyl Seese. When the issue of standing arose on appeal, the
individual named appellants (Hafemeister, Hearn, Koszewski, and
Seese) each signed a notice joining in and adopting the briefs
filed by Linville. Because Linville was not one of the
individual plaintiffs or appellants and because Washingtons Army
does not have standing, we will refer collectively to the
plaintiffs and appellants by the name of the lead appellant,
Hafemeister. When required by context, we will sometimes refer
to the citizens collectively as Washingtons Army, or as the
citizens.
3 Alaska Legislative Council v. Knowles, 86 P.3d 891, 893
(Alaska 2004) (stating that constitutional issues present
questions of law); N. Kenai Peninsula Rd. Maint. Serv. Area v.
Kenai Peninsula Borough, 850 P.2d 636, 639 (Alaska 1993) (stating
that the question[] of standing to sue . . . [is a] question[] of
law).
4 Knowles, 86 P.3d at 893 (quoting Guin v. Ha, 591 P.2d
1281, 1284 n.6 (Alaska 1979)).
5 N. Kenai Peninsula Rd. Maint. Serv. Area, 850 P.2d at
639 (citing Waller v. Butkovich, 584 F. Supp. 909, 925 (M.D.N.C.
1984); Meyer v. City & County of Honolulu, 729 P.2d 388, 390 n.1
(Haw. App. 1986) affd in part, revd in part, 731 P.2d 149 (Haw.
1986)).
6 State v. Aleut Corp., 541 P.2d 730, 734-35 (Alaska
1975) (holding that plaintiffs had standing because they
possessed the requisite permanence to be held accountable for the
proceeding).
7 Id. at 734-35.
8 Trustees for Alaska v. State, 736 P.2d 324, 329-30
(Alaska 1987). Taxpayer-citizen standing requires that the case
be one of public significance, the plaintiff be appropriate, and
the plaintiff capably and competently represent the position
asserted. Id.
9 Although the individual citizens are no longer
represented by an admitted attorney, their individual joinders in
the briefs effectively make them pro se appellants who have co-
signed pro se briefs on appeal.
10 The citizens proposed asking voters to repeal the vote
of the Seward City Council, not the vote of the KPBs action. The
vote would have only been held in the city, not borough-wide.
11 Seward City Charter 4.6 states that [a] Code provision
may be initiated or a referendum may be had on any act of the
council in the manner and subject to the limitations as set forth
by law or in the Code.
12 Seward City Charter 3.5(m) requires [t]he vote of at
least four [council] members . . . for official action by the
council. See also Seward City Code (SCC) 02.10.040(b) (1980)
(The vote of at least four members shall be required for official
action by the council, unless a larger majority is required by
law.).
13 SCC 04.15.010(a) (1986) (emphasis added).
14 Id.
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