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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Swetzof v. Philemonoff (02/13/2009) sp-6336
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
| PHYLLIS SWETZOF, in her capacity | ) |
| as Clerk of the City of St. Paul, | ) Supreme Court No. S-13165 |
| Alaska, and the CITY OF ST. PAUL, | ) |
| ALASKA, | ) Superior Court No. 3AN-07- 09874 CI |
| ) | |
| Appellants, | ) O P I N I O N |
| ) | |
| v. | ) No. 6336 February 13, 2009 |
| ) | |
| ANTHONY PHILEMONOFF and | ) |
| NICOLAI MELOVIDOV, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Craig F. Stowers, Judge.
Appearances: Ronald L. Baird, Office of
Ronald L. Baird, Anchorage, for Appellants.
Elisabeth H. Ross, Thomas F. Klinkner, Birch,
Horton, Bittner & Cherot, Anchorage, for
Appellees.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
MATTHEWS, Justice.
This opinion deals with the second of two proposed
initiatives designed to force the City of St. Paul out of the
business of selling electric power.1 In an earlier order we held
that the first proposal did not meet the enforceable as a matter
of law requirement of AS 29.26.110(a)(4)2 and authorized the city
clerk to remove it from the ballot for the October 2008 election.3
The second proposed initiative is challenged on the same basis,
as well as on the ground that it does not relate[] to a
legislative rather than an administrative matter, as required by
AS 29.26.110(a)(3).
To set the context of this case we quote from our
earlier order:
At issue in this case are decisions by
Phyllis Swetzof, Clerk of the City of St.
Paul, refusing to certify two proposed
initiatives. The first proposal (Application
I) stated:
The qualified voters of
the City of Saint Paul
who have signed the
attached pages of this
application for petition
hereby request that the
following measure be
submitted to the
qualified voters of the
City of Saint Paul
pursuant to Alaska
Statute 29.26.100.
AN ORDINANCE OF
THE PEOPLE OF
THE CITY OF
SAINT PAUL
PROVIDING THAT
THE CITY OF
SAINT PAUL
SHALL NOT
ENGAGE IN THE
SALE OR
DELIVERY OF
ELECTRIC POWER
TO RETAIL
CUSTOMERS AND
REQUIRING THE
CITY TO
ACTIVELY
PROMOTE
RENEWABLE
ENERGY
BE IT ORDAINED BY THE
PEOPLE OF THE CITY OF
SAINT PAUL:
$ Section 1. The City of Saint Paul shall not engage in the
sale or delivery of electric power to retail customers and shall
actively support renewable energy for sale to retail customers.
$ Section 2. This ordinance shall take effect 120 days after
certification of the election.
$ Swetzof refused to certify this proposal finding, among
other reasons, that it did not meet the enforceable as a matter
of law requirement of AS 29.26.110(a)(4) because the City could
not discontinue retail electric service without applying for and
obtaining the approval of the Regulatory Commission of Alaska
(RCA).
The second proposal (Application II) was
submitted in response to Swetzofs rejection
of the first. It provided:
The qualified voters of
the City of Saint Paul
who have signed the
attached pages of this
application for petition
hereby request that the
following measure be
submitted to the
qualified voters of the
City of Saint Paul
pursuant to Alaska
Statute 29.26.100.
AN ORDINANCE OF
THE PEOPLE OF
THE CITY OF
SAINT PAUL
PROVIDING THAT
THE CITY OF
SAINT PAUL
SHALL NOT
ENGAGE IN THE
SALE OR
DELIVERY OF
ELECTRIC POWER
TO RETAIL
CUSTOMERS.
BE IT ORDAINED BY THE
PEOPLE OF THE CITY OF
SAINT PAUL:
$ Section 1. The City of Saint Paul shall not engage in the
sale or delivery of electric power to retail customers.
$ Section 2. This ordinance shall take effect 120 days after
certification of the election and shall provide that the City
[of] St. Paul shall take all necessary steps including obtaining
regulatory approval to discontinue electric utility service.
$ $ Section 3. This ordinance is subject to the Regulatory
Commission of Alaskas approval of the City of Saint Pauls
discontinuance of electric utility service.
When Swetzof refused to certify this
proposal, the sponsors of both proposals,
Anthony Philemonoff and Nicolai Melovidov,
filed suit in the superior court challenging
her rulings. The superior court found that
Swetzof had erred and ordered her to certify
both applications. Swetzof has appealed this
ruling. An election will be held in the City
of Saint Paul on October 7, 2008. At oral
argument, counsel notified this court that,
for reasons unrelated to this dispute,
Application I but not Application II will be
on the ballot.1 Swetzof requested an
expedited hearing on appeal and this court
has granted her request.
_____________________________________________
____
1 But whether Swetzof properly
refused to certify Application II remains as
an issue in this case.[4]
We ruled that the first proposal (Application I) was
not enforceable as a matter of law because assuming the
initiative passed the City could not simply stop selling
electric power within 120 days after the vote. We pointed out
that the City, as a public utility, would have to seek permission
to sell the utility or discontinue service from the Regulatory
Commission of Alaska (RCA), that proceedings before the
commission could be lengthy, and that the outcome of such
proceedings would be uncertain:
Having considered the parties briefs and
argument, the court concludes that Swetzof
correctly refused to certify Application I.
Application I would not be enforceable as a
matter of law because the City of Saint Paul
could not simply stop selling or delivering
electrical power to retail customers within
120 days after certification of the election.
Instead, permission to discontinue or abandon
electric service or to sell the utility to
another entity would have to be sought and
obtained from the RCA. Proceedings conducted
by the RCA require notice to and an
opportunity to be heard for interested
persons. The proceedings may be complex,
expensive, and time consuming, and their
outcome is uncertain.[5]
We rejected the superior courts conclusion that
Application I should be viewed as impliedly subject to a
condition that the City could only cease operating its electric
utility upon receiving the RCAs approval. We found such an
implication unwarranted by the proposals language and potentially
misleading to voters:
The superior court held that Application
I should be considered to be subject to the
implicit condition that the RCA will approve
the Citys application, either to cease retail
electric utility service or transfer its
certificate. But given the mandatory and
time-limited language of Application I, the
nature of the proceedings that must take
place before the RCA, and the uncertainty of
the ultimate result, we believe that the
judicial imposition of an implicit condition
of RCA approval is both unjustified and
potentially misleading to the electorate.2
_____________________________________________
___
2 The superior court relied on a 1965
decision from an intermediate appellate court
in California, Hughes v. City of Lincoln, 232
Cal. App. 2d 741 (Cal. App. 1965), as
justification for its conclusion that the
proposal was implicitly subject to needed
approval by the RCA. In Hughes the petition
sought the cessation of fluoridation by the
citys water utility. This could only be
accomplished if the state board of public
health issued an amended permit. The court
in Hughes held that permission from the state
board should be considered an implicit
condition of the proposed ordinance. But in
so ruling the court suggested that state
board approval of defluoridation would be
routine since the state board was only
concerned with water purity and potability,
not dental health: If the board finds that
cessation of fluoride treatment will not make
the water impure, unpotable or dangerous, it
must permit cessation. This scheme of
statutory regulation does not express any
state policy, one way or the other, on
fluoridation as a therapeutic measure. Id.
at 748. Hughes is distinguishable based on
the expected routine nature of the needed
administrative approval there, in contrast to
the complex and uncertain administrative
approval required in this case.[6]
Our order only dealt with Application I because it was
on the October ballot and the second proposal (Application II)
was not. We noted that an opinion would follow with respect to
Application II.7
Application II is challenged on two grounds. First,
the City contends that, if adopted, it would not be enforceable
as a matter of law and therefore violates AS 29.26.110(a)(4).
Second, the City contends that Application II does not relate to
a legislative, as distinct from an administrative, matter and
therefore violates AS 29.26.110(a)(3).
Before addressing these arguments two observations are
in order. First, we construe voter initiatives broadly so as to
preserve them whenever possible.8 Thus we narrowly interpret the
subject matter limitations placed on initiatives by the Alaska
Constitution and statutes.9 Nonetheless, courts have a duty to
give careful consideration to questions involving whether a
constitutional or statutory limitation prohibits a particular
initiative proposal on subject matter grounds.10
Second, because this case involves questions of whether
the proposed initiative complies with the statute regulating
initiatives, it is appropriately decided before the proposed
initiative is voted on by the electorate:
Pre-election review of challenges to
ballot initiatives is limited to ascertaining
whether [the initiative] complies with the
particular constitutional and statutory
provisions regulating initiatives.[11]
Other claims of unlawfulness are justiciable only after the
initiative is enacted. Thus our review at this stage is limited
to compliance with AS 29.26.110(a).
APPLICATION II WOULD BE ENFORCEABLE AS A MATTER OF LAW.
As noted, we held that Application I would not be
enforceable as a matter of law because, contrary to the language
of the proposed initiative, the City could not under state law
simply stop operating as an electrical utility 120 days after the
initiative passed.12 We concluded that it would be inappropriate
to read into the proposal an implied condition that the proposal
would only be effective upon the RCAs approval of the Citys
cessation of service.13 Such an implication would be uncalled
for, we concluded, because the proposals language did not suggest
it, the likelihood of RCA approval was uncertain, the process of
undertaking to obtain RCA approval would be time consuming and
expensive, and the proposal would likely mislead voters, who
would not be aware of the judicially implied condition.14
In Application II, the condition of RCA approval is
express. It therefore does not suffer from the same deficiency
as Application I. But the City contends that because the RCA may
never approve discontinuance of service by the City, the proposal
is merely aspirational and would not be enforceable as a matter
of law. In support of this point the City cites footnote 21 of
Kodiak Island Borough v. Mahoney, where we observed that
[b]ecause the language of AS 29.26.110(a)(4)
requires the rejection of initiative
petitions that would be unenforceable as a
matter of law, we also believe that a clerk
must reject an initiative that proposes an
ordinance which is merely aspirational or
which otherwise lacks the attributes of an
enforceable law. For example, the proposal
must be comprehensible and concrete enough to
be capable of enforcement.[15]
Yute Air Alaska, Inc. v. McAlpine16 answers the question
of whether Application II is sufficiently concrete as to be
capable of enforcement. The initiative proposal there, in part,
required the governor to use his best efforts to seek the repeal
of the federal Jones Act which requires shipments between
domestic ports to be made on United States ships.17 The governor
was also required to report annually on progress toward that end
and on the harmful effects of the Jones Act on Alaska commerce.18
The initiatives opponents argued that the part of the proposal
addressing the Jones Act, even if passed, would not be a law, but
merely an aspirational resolution.19 The premise of this argument
was that the constitutional power of initiative is limited to the
proposal and enactment of laws.20 We held in Yute Air that
because the proposal mandated action by the governor, it was a
law rather than merely an aspirational resolution.21
Like the proposal in Yute Air, Application II mandates
action. It requires the City to take all necessary steps
including obtaining regulatory approval to discontinue electric
utility service. While the steps mandated by the proposal might
ultimately not succeed, the requirement that they be taken is as
binding on the City as the best efforts requirement in Yute Air.
We conclude therefore that Application II satisfies the
enforceable as a matter of law requirement.
APPLICATION II RELATES TO A LEGISLATIVE RATHER THAN AN
ADMINISTRATIVE MATTER.
In most jurisdictions municipal initiative and
referendum powers are restricted to enactments that are
legislative rather than administrative or executive in character.
Often this is a common law restriction, and this court recognized
it as such in 1973 in Wolf v. Alaska State Housing Authority.22
In 1985 a general revision of the Alaska Municipal Code was
passed.23 This revision added AS 29.26.110, which in part (a)(3)
codifies the legislative-enactment restriction on municipal
initiatives.24 This court has not had occasion to interpret this
provision.
The rationale for the rule that provides that only
legislative enactments can be enacted by municipal initiatives is
based on government efficiency grounds. For instance, one court
has explained:
A charter giving a small group of electors
the right to demand a vote of the people upon
every administrative act of the city council
would place municipal government in a
straight-jacket and make it impossible for
the citys officers to carry on the public
business.[25]
Likewise, another court has stated:
While a proposed initiative, unlike a
referendum, does not immediately suspend an
act of the Council until such time as the
voters have passed on it . . . it does
effectively leave the execution and
administration of a given legislative policy
in doubt pending the outcome of the vote.
Therefore, the same rationale that serves to
bar administrative and executive actions from
being subject to the referendum also has been
applied to bar them from being subject to the
initiative: an initiative on executive
action would seriously encumber, if not
paralyze, the execution of a previously-
approved policy or program, without ever
actually addressing the merits of the program
itself.[26]
A leading text, Antieau on Local Government Law,
skeptically states that [t]here is no satisfactory test for
determining when an ordinance is legislative nor is there uniform
application of the rule.27 Antieau describes the usual
formulation for making the required distinction as follows:
Courts applying the rule usually say that
legislation is legislative if it makes a new
law, whereas it is administrative if it only
provides for the execution of an old law.
The Kentucky Court is typical of the majority
view when it states that the rule for
determining whether a particular matter is
legislative or administrative, is that if the
power to be exercised prescribes a new policy
or plan it is legislative, whereas if it
merely pursues a plan already adopted by the
legislative body or some power superior
thereto it is administrative. It is also
said to be legislative when it is permanent
and general, and administrative when it is
temporary, routine or detailed.[28]
A summary offered by the other leading municipal law text,
McQuillins Law of Municipal Corporations, is similar:
Actions relating to subjects of a
permanent and general character are usually
regarded as legislative, and those providing
for subjects of a temporary and special
character are regarded as
administrative. . . . The test of what is a
legislative and what is an administrative
proposition, with respect to the initiative
or referendum, has further been said to be
whether the proposition is one to make new
law or to execute law already in existence.
The power to be exercised is legislative in
its nature if it prescribes a new policy or
plan; whereas it is administrative in its
nature if it merely pursues a plan already
adopted by the legislative body itself, or
some power superior to it. Similarly, an act
or resolution constituting a declaration of
public purpose and making provision for ways
and means of its accomplishment is generally
legislative as distinguished from an act or
resolution which merely carries out the
policy or purpose already declared by the
legislative body.[29]
The City suggests that we should use the guidelines
employed by the Supreme Court of Kansas in City of Wichita v.
Kansas Taxpayers Network, Inc.30 The guidelines are:
1. An ordinance that makes new law is
legislative; while an ordinance that executes
an existing law is administrative.
Permanency and generality are key features of
a legislative ordinance.
2. Acts that declare public purpose and
provide ways and means to accomplish that
purpose generally may be classified as
legislative. Acts that deal with a small
segment of an overall policy question
generally are administrative.
3. Decisions which require specialized
training and experience in municipal
government and intimate knowledge of the
fiscal and other affairs of a city in order
to make a rational choice may properly be
characterized as administrative, even though
they may also be said to involve the
establishment of a policy.
4. No one act of a governing body is likely
to be solely administrative or legislative,
and the operation of the initiative and
referendum statute is restricted to measures
which are quite clearly and fully legislative
and not principally executive or
administrative.[31]
The courts of at least two other states, Montana and New Mexico,
have used these guidelines.32
Adverting to the Kansas Taxpayers guidelines, the City
argues that Application II is primarily administrative in
character for two reasons. First, according to the City, a
rational decision to discontinue the electric utility involves
technical expertise that is beyond the electorates knowledge.
The City argues that the third guideline pertaining to the
requirement of specialized training and knowledge applies and
therefore the proposal is beyond the initiative power. Second,
the City argues that the requirement in Application II that the
City take all necessary steps to obtain regulatory approval to
discontinue utility service requires prosecution of an
administrative proceeding. The City argues that the third
guideline is implicated here because administrative litigation
should not be undertaken without expert advice as to the cost of
proceeding and the chances of success. The City argues:
Absurdly, the second proposed ordinance,
with its command to take all necessary steps,
would require the City to blindly soldier
forward in the regulatory proceedings
regardless of cost and regardless [of] the
probability of success. In the event of an
adverse ruling by the commission, the City
presumably must prosecute an appeal through
the courts of the state.
The City also argues that the commencement and prosecution of
litigation is inherently administrative in nature, and this
provides another reason why section 2 of the proposed initiative
relates to an administrative rather than a legislative matter.
The sponsors respond in general by referring to our
decision in Yute Air Alaska, Inc. v. McAlpine.33 They contend
that language in the superior courts decision, which we published
as part of our opinion in Yute Air, indicates general
disagreement with the approach taken by other jurisdictions
concerning the legislative/administrative dichotomy. They note
that the superior court in Yute Air observed that [a]nalytically,
laws may be enacted on any subject under the sun: They can
command the tides to stand still for King Canute or the mountain
to come to Mohammed.34 The sponsors infer from the superior
courts decision in Yute Air that this court concluded that an
initiative requiring the governor to seek repeal of a federal
statute (the Jones Act) related to a legislative matter, and not
an administrative matter, because the initiative proposed a new
public policy.
The sponsors also argue that even apart from Yute Air
the proposed initiative is legislative in character. They
contend that the fact that the initiative proposes a new policy
is determinative, even though complex technical issues may be
implicated. They also contend that the proposal is not made
administrative in character merely because it directs City
officials to take necessary and specified steps to accomplish the
new policy:
Initiative Sponsors do not seek to direct the
Citys conduct of a proceeding before the RCA.
Instead, their initiatives establish a policy
objective, the discontinuance of the Citys
current retail electric utility service.
Decisions regarding the specifics of
conducting the RCA proceeding are left
entirely to City administrators. Just as a
directive to the governor to seek the repeal
of a federal statute was held to be a proper
subject of the initiative in Yute Air, a
directive to the City to take the steps
necessary to discontinue electric utility
service, including participating in necessary
regulatory proceedings, is a proper subject
for an initiative.
Although we agree in large part with the sponsors
ultimate position on the merits, we do not believe that Yute Air
is a source of precedent on the issue of whether a proposed
initiative is legislative or administrative in character. Two
points indicate that Yute Air did not rely on the distinction
between legislative and administrative initiatives, and so cannot
give us guidance on how to differentiate between them.
First, the discussion in the superior courts decision
set out in Yute Air suggests that the legislative/administrative
dichotomy does not apply to initiatives at the state level. The
superior court explained that unlike state governments in which
the three great powers are separated, local governing bodies are
generally vested with an admixture of both legislative and
administrative powers.35 The superior court implied, then, that
this difference in governmental structure makes the
legislative/administrative dichotomy relevant at the municipal
level but not at the state level. This, in turn, suggests that
Yute Air should not be understood as applying the
legislative/administrative distinction because at issue there was
a statewide rather than a municipal initiative.
Second, the decisions analysis was directed toward a
concern other than the legislative/administrative distinction.
One of the two main questions we addressed in Yute Air was
whether the state law initiative at issue was a law or a
resolution.36 The other main issue was whether the initiative
complied with the single-subject rule of the Alaska Constitution.37
We interpret the superior courts decision to be addressing the
law/resolution dichotomy, rather than the
legislative/administrative dichotomy, in the paragraph that
begins, [a]nalytically, laws made be enacted on any subject under
the sun.38 For these reasons, we do not rely on Yute Air as
precedent on the question of whether the proposed initiative in
the present case is legislative or administrative in character.
Instead, we turn to the tests used by cases in other
jurisdictions. We agree with the City that the guidelines in the
Kansas Taxpayers opinion are useful, except for the fourth one.
The fourth guideline states that unless a measure is quite
clearly and fully legislative and not principally executive or
administrative, it is not an appropriate subject for an
initiative.39 In our view the quite clearly and fully legislative
language of this guideline may give too much weight to the
administrative aspects of an initiative containing both
legislative and administrative matters. As such, this guideline
could run counter to our rule of construction that proposed
initiatives should be construed liberally, where reasonably
possible, to support the electorates right to participate in
direct law-making.
Under the first guideline is a new law being made or
an existing law being executed40 the proposed initiative is
legislative in character. Removing the City from the electrical
utility business would be a new policy direction rather than a
step along a previously charted course. Further, the permanency
and generality aspects of the first guideline are also satisfied.
The proposed initiative contemplates that the City will
permanently be out of the electrical utility business. The
generality requirement is satisfied because the proposed
initiative is designed to take the City completely out of the
electrical utility business rather than merely barring the City
from serving a particular area within the utilitys service
district.
With respect to the second guideline the proposed
initiative is also legislative in character. The second
guideline provides:
Acts that declare public purpose and
provide ways and means to accomplish that
purpose generally may be classified as
legislative. Acts that deal with a small
segment of an overall policy question
generally are administrative.[41]
The proposed initiative declares a public purpose, albeit a
negative one. Further, it provides ways and means to accomplish
its purpose by directing the City to take all necessary steps to
discontinue electric power sales, including obtaining regulatory
approval. Again, the proposed initiative does not merely deal
with a small segment of the issue, but rather the overall policy
question of whether the City should continue to act as an
electrical utility.42
The third guideline, regarding the expertise necessary
to make the relevant decision,43 could, in the context of this
case, be seen as conflicting with the second. It is easy to
credit the Citys argument that deciding to discontinue electrical
utility service could be financially damaging to the City in ways
that the electorate cannot readily appreciate. Further, there
may be technical reasons underlying the Citys refusal to buy wind-
generated power.44 Disagreement with this decision appears to be
the motive underlying the proposed initiative. The City is also
correct that directing it to engage in regulatory litigation is
administrative both inherently and because expertise is required
to intelligently assess whether such litigation is likely to be
effective.
Nonetheless, we think that guideline three should not
supersede guidelines one and two when analyzing broad policy
decisions such as the decision here. In our view the Kansas
Taxpayers case demonstrates the appropriate use of this
guideline. There the proposed initiative sought the repeal of an
ordinance that dictated that the citys storm sewers be operated
as a storm water utility system.45 The court found that the
initiative was administrative in nature and therefore that it was
properly outside the scope of the initiative process.46 In
reaching this conclusion, the court took pains to point out that
the ordinance sought to be repealed was not the so-called charter
ordinance, which gave the city the authority to develop and
maintain storm sewers, but rather was an ordinance adopted
pursuant to the authority of the charter ordinance that included
specific provisions to establish, operate, and fund a storm water
utility . . . within the authority granted by [the] [c]harter
[o]rdinance.47 Stressing that the city already owned and
maintained the existing system, the court observed that the
operation, management, and financing of the system fit within the
context of the third guideline pertaining to specialized training
and experience in municipal government.48
The Supreme Court of Montana also took this view of the
third guideline in its decision in Town of Whitehall v. Preece.49
There the question was whether an initiative that sought to
repeal an ordinance requiring the metering of water was
administrative rather than legislative in character.50
Interpreting the third guideline, the court viewed the issue
presented in Kansas Taxpayers as involving merely details
concerning funding for the city-owned system.51 The court stated:
As to the third guideline, the most
effective means of operating and managing a
city-wide water system reasonably fits within
the context of decisions that require
specialized knowledge and experience with
respect to city management. In Kansas
Taxpayers, which involved an ordinance
concerning billing for a municipalitys storm
water utility system, the court stated:
The physical structure of
the system, maintenance,
and fee assessment and
collection all fit within
the purview of the Citys
expertise. The City
already owns and
maintains the existing
system; [the challenged
ordinance] also fits
within a citys expertise
in terms of fiscal
management.[52]
Unlike in Kansas Taxpayers, the proposed initiative in
the present case deals not with the details concerning the form
and funding of a City service but with the policy decision of
whether the City should get out of the business of providing the
service. The proposal to terminate all services falls most
clearly within the first two guidelines: it is a new law and a
declaration of a public purpose, and it provides for ways to
accomplish that purpose. It would be contrary to the premise of
the initiative power to place the enactment of new laws and
policies out of bounds simply because such laws and policies
present difficult and complex choices.53 We therefore think that
the third guideline must have a subordinate role to the first two
when applied to broad policy decisions such as this one. We also
believe that even though ways and means of accomplishing a new
policy may be administrative in character, they should not
disqualify an initiative that both provides for a new policy and
provides ways and means to accomplish that purpose. The purpose
of the administrative exclusion is to avoid crippling a
previously enacted policy. That purpose is not called into play
when a new policy and the ways and means of accomplishing it are
integrated in a single initiative.
We therefore believe that the proposed initiative is
legislative in character. We are aided in reaching this view by
decisions that hold that the question of whether to provide
utility services on an area-wide basis or to purchase a private
utility is an appropriate subject for the initiative and
referendum power.54 These cases support our view that though the
decision to purchase or provide a utility service may implicate
administrative matters, that fact alone does not convert the new
policy decision itself into an impermissible administrative one.55
These cases are also important because they indicate that
acquiring or establishing a utility is legislative in character
and it is generally held that the reversal of a legislative
decision must also be regarded as legislative rather than
administrative.56
By most recognized tests for distinguishing legislative
from administrative proposals, the proposal here is legislative.
It is permanent in nature rather than temporary. It declares a
new policy and deals with the overall policy question rather than
merely a small segment of a pre-established policy. Likewise, it
establishes a new law rather than executing a law already in
existence. For these reasons, we conclude that the proposed
initiative relates to a legislative rather than an administrative
enactment and does not violate AS 29.26.110(a)(3).
For these reasons the judgment of the superior court
with respect to Application II is AFFIRMED.
_______________________________
1 According to the initiative sponsors, the City refuses
to take advantage of wind generation facilities on St. Paul
Island that would make clean, less-expensive electricity
available to city residents. In response, the sponsors seek to
remove the City from the utility business so that a company that
will utilize wind-generated electricity can replace it.
2 AS 29.26.110 provides:
(a) An initiative or referendum is
proposed by filing an application with the
municipal clerk containing the ordinance or
resolution to be initiated or the ordinance
or resolution to be referred and the name and
address of a contact person and an alternate
to whom all correspondence relating to the
petition may be sent. An application shall
be signed by at least 10 voters who will
sponsor the petition. An additional sponsor
may be added at any time before the petition
is filed by submitting the name of the
sponsor to the clerk. Within two weeks the
clerk shall certify the application if the
clerk finds that it is in proper form and,
for an initiative petition, that the matter
(1) is not restricted by AS 29.26.100; (2)
includes only a single subject; (3)
relates to a legislative rather than to an
administrative matter; and (4) would be
enforceable as a matter of law. (b) A
decision by the clerk on an application for
petition is subject to judicial review.
3 See Swetzof v. Philemonoff, 192 P.3d 992 (Alaska 2008).
4 Swetzof, 192 P.3d at 992-93.
5 Id. at 993.
6 Id.
7 We are now advised that Application II has been
certified and will be on the ballot of the October 2009 municipal
election unless otherwise ordered by this court.
8 City of Fairbanks v. Fairbanks Convention & Visitors
Bureau, 818 P.2d 1153, 1155 (Alaska 1991).
9 Brooks v. Wright, 971 P.2d 1025, 1027 (Alaska 1999)
(When reviewing initiative challenges . . . we narrowly interpret
the subject matter limitations that the Alaska Constitution
places on initiatives.).
10 See Staudenmaier v. Municipality of Anchorage, 139 P.3d
1259, 1261 (Alaska 2006) ([I]nitiatives touching upon the
allocation of public revenues and assets require careful
consideration. (quoting Pullen v. Ulmer, 923 P.2d 54, 58 (Alaska
1996) (internal quotation marks omitted)); Brooks, 971 P.2d at
1027 ([W]e have a duty to give questions involving the propriety
of an initiatives subject matter careful consideration. (quoting
Pullen, 923 P.2d at 58)).
11 Brooks, 971 P.2d at 1027 (footnote omitted).
12 See Swetzof v. Philemonoff, 192 P.3d 992, 993 (Alaska
2008).
13 Id.
14 Id.
15 71 P.3d 896, 900 n.21 (Alaska 2003).
16 698 P.2d 1173 (Alaska 1985).
17 See id. at 1175.
18 See id. at 1177.
19 Id. at 1175.
20 Alaska Const. art. XI, 1 (The people may propose and
enact laws by the initiative, and approve or reject acts of the
legislature by the referendum.).
21 Yute Air, 698 P.2d at 1176.
22 514 P.2d 233, 235 n.13 (Alaska 1973).
23 See ch. 74, 1-20, SLA 1985.
24 See id. 9.
25 Housing Auth. of Eureka v. Superior Court, 219 P.2d
457, 461 (Cal. 1950).
26 Convention Ctr. Referendum Comm. v. D.C. Bd. of
Elections & Ethics, 441 A.2d 871, 875 (D.C. 1980).
27 6 Sandra M. Stevenson, Antieau on Local Government Law
89.06, at 89-10, 89-11 (2d ed. 2008).
28 Id. at 89-11 (quoting City of Newport v. Gugel, 342
S.W.2d 517, 519 (Ky. 1960)).
29 5 Eugene McQuillin, The Law of Municipal Corporations
16:54 at 407-11 (3d ed. 2004).
30 874 P.2d 667 (Kan. 1994).
31 Id. at 671-72 (citing City of Lawrence v. McArdle, 522
P.2d 420 (Kan. 1974) (internal citations and quotation marks
omitted)).
32 See Town of Whitehall v. Preece, 956 P.2d 743, 749-51
(Mont. 1998); Johnson v. City of Alamogordo, 910 P.2d 308, 312-13
(N.M. 1996).
33 698 P.2d 1173 (Alaska 1985).
34 Id. at 1176.
35 Id.
36 Id. at 1182.
37 Id. at 1180.
38 Id. at 1176.
39 City of Wichita v. Kansas Taxpayers Network, Inc., 874
P.2d 667, 672 (Kan. 1994).
40 Id. at 671-72.
41 Id. at 672.
42 Cf., e.g., Keigley v. Bench, 63 P.2d 262, 263, 265
(Utah 1936) (holding a resolution to issue bonds for the purpose
of acquiring or constructing an electric utility system was
legislative and therefore subject to referendum because, in part,
the accomplishment of that end was a matter of public policy of
vital importance); State ex rel. Boynton v. Charles, 18 P.2d 149,
150 (Kan. 1933) (holding that a referendum to repeal an enacted
ordinance authorizing the city to build and equip a municipal gas
plant and directing the city to instead buy gas under contract
from a private party was legislative because the question was a
matter of vital public interest and policy and of a general and
permanent character).
43 Kansas Taxpayers, 874 P.2d at 672.
44 The record is silent on what wind-generation facilities
are available to the City, who owns them, what the cost of
purchasing electricity from the facilities would be, what
equipment would be required to ensure that adequate electricity
would be available at all times, and what the costs of this
equipment would be.
45 Kansas Taxpayers, 874 P.2d at 669.
46 Id. at 672-73.
47 Id. at 672.
48 Id.
49 956 P.2d 743, 750 (Mont. 1998).
50 Id. at 745, 749.
51 Id. at 750.
52 Id. (quoting Kansas Taxpayers, 874 P.2d at 672).
53 See Alaska Const. art. I, 2 (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.); Alaska Const. art. XI,
7 (enumerating exceptions to the power of initiative but not
including difficulty of subject matter as such an exception); see
also Tumpson v. Farina, 573 A.2d 472, 474 (N.J. Super. App. Div.
1990) (holding an ordinance adopted to implement a redevelopment
project on the citys waterfront was legislative and subject to
referendum, and stating that though the project is a complex
matter which demanded careful study and thorough
investigation, . . . we find no evidence that the legislature
intended to bar referenda for such reasons).
54 See, e.g., Scott v. City of Orlando, 173 So. 2d 501,
505 (Fla. Dist. App. 1965) (quoting McQuillin approvingly in
noting that acquisition or construction of a public utility has
generally been deemed [a] proper [proposition] for initiative or
referendum); State ex rel. Didelius v. City Commn of Sandusky, 2
N.E.2d 862, 865 (Ohio 1936) (holding an initial ordinance
authorizing the acquisition or construction of a public utility
and providing for the method of financing the project was subject
to referendum but subsequent ordinances incidental to and in
furtherance of such project would not be subject to referendum);
Low v. City of Monticello, 54 P.3d 1153, 1161 (Utah 2002)
(holding the question of whether the city council should exercise
the option reserved to it by ordinance to repurchase the
electrical power distribution system was legislative and subject
to referendum because the decision to purchase or acquire a power
system . . . is a purely legislative decision that did not become
administrative simply because pursued via exercise of previously
negotiated contractual right); Keigley v. Bench, 63 P.2d 262, 265
(Utah 1936) (holding a resolution regarding financing the
purchase of an electric utility system was legislative and
subject to referendum because, in part, it was calculated to bind
[the city] to contract for or purchase an electric lighting and
power system and to operate [it]); 5 Eugene McQuillin, The Law of
Municipal Corporations 16:56 at 421 (3d ed. 2004); cf. Whitehead
v. H & C Dev. Corp., 129 S.E.2d 691, 696 (Va. 1963) (While the
establishment of the city-owned water system may have been in
pursuance of a broad public policy and, therefore, a legislative
matter, the receipts and expenses incidental to its maintenance
and management are executive or administrative matters.). Other
cases hold that the decision of whether or not a city should
offer to renew a utility franchise is legislative because such a
decision involves legislative discretion. See Lindelli v. Town
of San Anselmo, 4 Cal. Rptr. 3d 453, 466 (Cal. App. 2003)
(holding a citys decision to award a waste management franchise
to a new provider was subject to referendum and stating, [t]he
issuance of a franchise involves the setting, not the
implementation, of public policy . . . [t]he rule is firmly
established that the granting of a franchise by a city or county
is a legislative act ) (citations omitted)); Vanmeter v. City of
Paris, 273 S.W.2d 49, 50 (Ky. 1954) (distinguishing an earlier
Kentucky case wherein the opposite result was reached because in
that case a statute mandated the city offer a franchise for sale,
leaving no legislative discretion in the legislative body).
55 See Low, 54 P.3d at 1161 (When the decision to purchase
is made, the city council enacts a law authorizing city officials
to take the administrative action necessary to realize the
purchase.); cf. State ex rel. Wilkinson v. Edwards, 266 S.W. 127,
128-30 (Mo. 1924) (concluding an ordinance locating a right of
way for construction of a road and directing the city to
institute all necessary legal proceedings for the acquisition of
the land was legislative in character and therefore its repeal
was subject to referendum).
56 See Wilkinson, 266 S.W. at 130 ([A] legislative act
cannot be repealed . . . by an administrative order. Such [an]
act can only be repealed by a later legislative act.).
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