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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Mullins v. Local Boundary Commission (3/12/2010) sp-6462
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
| MARGRET A. MULLINS, | ) |
| ) Supreme Court No. S- 12912 | |
| Appellant, | ) |
| ) Superior Court No. 4FA-07-01738 CI | |
| v. | ) |
| ) O P I N I O N | |
| LOCAL BOUNDARY | ) |
| COMMISSION, and STATE OF | ) No. 6462 March 12, 2010 |
| ALASKA DIVISION OF | ) |
| ELECTIONS, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the
Superior Court of the State of Alaska, Fourth
Judicial District, Fairbanks, Randy M. Olsen,
Judge.
Appearances: Margret A. Mullins, pro se,
Delta Junction. Marjorie L. Vandor,
Assistant Attorney General, and Richard A.
Svobodny, Acting Attorney General, Juneau,
for Appellees.
Before: Carpeneti, Chief Justice, Fabe,
Winfree, and Christen, Justices. [Eastaugh,
Justice, not participating.]
FABE, Justice.
I. INTRODUCTION
Margret Mullins filed a suit in superior court
challenging the decision of the Local Boundary Commission (LBC)
to approve a petition for incorporation of the Deltana Borough.
She sought to stay the election in which voters would decide
whether to incorporate the proposed borough. The superior court
denied Mullinss motion to stay the election, and when voters
overwhelmingly rejected the incorporation of the proposed
borough, the superior court dismissed her lawsuit as moot.
Mullins appeals. Because only declaratory relief is available to
Mullins on claims presented to the superior court, and because
claims of this nature are not likely to consistently escape
judicial review, we affirm the superior courts dismissal of the
lawsuit on mootness grounds.
II. FACTS AND PROCEEDINGS
A. Facts
On January 3, 2006, 259 voters in the Delta-Greely
region filed a Petition to the Local Boundary Commission for
Incorporation of the Deltana Borough, a Unified Home-Rule Borough
seeking to incorporate as a borough the Delta-Greely Regional
Educational Attendance Area. Staff for the LBC published a
preliminary report in November 2006 and a final report in
February 2007, both of which recommended approval of the
petition. The LBC received written public comments on the
petition and the preliminary report.
On March 16, 2007, the LBC held a public hearing on the
petition in Delta Junction, which was attended by 251 people.
Prior to the hearing, the five members of the LBC, along with two
staff, toured parts of the proposed borough by vehicle. The
following day, the LBC convened a decisional meeting and granted
the petition by unanimous vote. This decision was memorialized
in a written statement of decision, issued on April 12, 2007, in
which the LBC made factual findings that the standards for
borough incorporation were met. Seven requests for
reconsideration were filed by the public, including one request
filed by Mullins, challenging numerous aspects of the statement
of decision. These requests were all denied after public
meetings.
On May 11, 2007, the LBC notified the Alaska Division
of Elections of its approval of the petition and directed the
Division to order a referendum election on the proposed
incorporation of the Deltana Borough. The Division ordered a
vote-by-mail election, with an election date of August 21, 2007.
The elections purpose was to decide: (1) whether to incorporate
the Deltana Borough; (2) whether to approve certain prerequisites
to incorporation, including an Agreement for Payment in Lieu of
Taxes between Delta Junction and Teck-Pogo, Inc., a mining
company (the Pogo PILOT agreement) and taxes on heating fuel,
vehicle gas, and electrical power; and (3) who the mayor and
borough assembly members would be if the borough were
incorporated. The vote-by-mail election was held as scheduled
and the residents of the proposed Deltana Borough voted
overwhelmingly against the borough incorporation and also
rejected the combined ballot question regarding the Pogo PILOT
agreement and proposed taxes.
In response to several complaints filed prior to the
election, the ombudsman for the State of Alaska investigated the
LBCs process of approving the petition. In the final report, not
issued until March 30, 2009, the ombudsman found a number of
irregularities in the LBCs process, including a failure to issue
adequate public notice, a failure to accommodate the substantial
Russian language minority in the region, and a failure to engage
in government-to-government consultation with the Mendas Cha-Ag
Tribe at Healy Lake.
B. Proceedings
On June 11, 2007, after the final request for
reconsideration of the LBCs approval of the petition was denied
and before the incorporation election was held, Mullins filed an
appeal before the superior court challenging the LBCs decision.
Her appeal was heard by Superior Court Judge Randy M. Olsen.
Mullins raised twenty-two points on appeal, alleging that the LBC
committed numerous errors in approving the petition and
challenging various election procedures. Mullins later attempted
to amend her appeal to add claims directly against the Director
of Elections.
On July 9, Mullins moved for a preliminary injunction
to stay the election, and she requested an expedited hearing on
her motion. The superior court held a hearing on July 20 to
consider Mullinss motion. Mullins, who was to participate by
telephone, did not call in to the hearing until approximately
seventeen minutes after it began, apparently because she had the
wrong number. At the hearing, the court stated that it would
issue a decision on Mullinss motion to stay the election by July
27 three days before ballots were to be sent out. On July 27,
the superior court denied Mullinss motion. Mullinss request for
reconsideration of this decision was denied on August 22, 2007,
one day after the election.
After the Director of Elections certified the vote
against incorporation of the Deltana Borough, the LBC moved to
dismiss Mullinss administrative appeal as moot, arguing that the
vote against incorporation rendered void the LBCs decision to
approve the petition and that no relief is available to Mullins.
The superior court granted this motion and dismissed Mullinss
appeal on October 5, only four days after the LBCs motion was
filed. Mullins filed an opposition to the LBCs motion to dismiss
on October 17 and, on October 23, a Motion and Affidavit for this
Court To Vacate Its Order Dismissing this Case in Its Entirety,
and Protest against the Violations of this Pro Se and Public
Interest Appellants Civil Rights, Including the Denial of Due
Process of Law by this Court. On November 21, the superior court
issued an order of clarification reaffirming its dismissal of
Mullinss lawsuit as moot.
III. STANDARD OF REVIEW
Mullins requests that we review all decisions made by
the superior court. She lists forty-seven alleged errors, both
procedural and substantive, in her statement of points on appeal.
We review the superior courts procedural decisions for abuse of
discretion.1 We review questions of mootness under the
independent judgment standard.2
IV. DISCUSSION
In her administrative appeal, Mullins identified
legitimate problems with the process leading up to the approval
of the petition to incorporate the Deltana Borough. But the
public has now rejected the incorporation of the proposed
borough, as Mullins urged it to do. The question before us,
then, is whether there is further relief to be granted to
Mullins, and if not, whether an exception to the mootness
doctrine should apply to this appeal.
Mullinss allegations fall roughly into three
categories: (1) alleged procedural errors by the superior court;
(2) alleged defects in the approval of the petition by the LBC;
and (3) alleged defects in the election process. We address each
allegation of error in turn.
A. Alleged Procedural Errors by the Superior Court
Mullins alleges that the superior court made a series
of procedural errors while considering her administrative appeal:
that the superior court ruled on the LBCs motion to dismiss the
complaint without affording Mullins an opportunity to file an
opposition; that the superior court delayed sending Mullins the
order of dismissal and order of clarification; and that the
superior court gave Mullins the wrong call-in number for the July
20 hearing. She argues that these claimed errors violated her
constitutional rights and require us to reverse the dismissal of
her appeal.
Mullins first complains that the superior court failed
to allow her adequate time to respond to the LBCs motion to
dismiss. Her claim has merit it was an abuse of discretion to
rule on the LBCs motion only one week after it was served on
Mullins, well before the eighteen days in which Mullins had to
file her opposition had elapsed.3 But the superior courts
failure to allow Mullins adequate time to respond does not
require a reversal of its decision because Mullins can show no
resulting prejudice.4 After the superior court made its initial
ruling, Mullins filed an opposition to the LBCs motion to dismiss
the appeal as moot and then a motion to vacate the superior
courts dismissal of her lawsuit as moot. Thereafter, the court
issued an order of clarification reaffirming the dismissal of the
appeal. Because the superior court considered Mullinss position
and arguments regarding why her appeal should not be dismissed as
moot, Mullins was not prejudiced by the courts premature
decision.5 Moreover, we now apply our independent judgment in
deciding the LBCs motion to dismiss the case on mootness grounds
without reference to the opinion of the superior court. Our de
novo review of the merits of the LBCs motion to dismiss will cure
any prejudice that Mullins potentially suffered from the superior
courts procedural error.6
Mullins expresses further concern that the superior
court did not mail its order of dismissal until four days after
it was entered or its order of clarification until seven days
after it was entered. This delay in distribution caused no
prejudice to Mullins because the time for appeal, review, and
reconsideration of the written order did not begin until the date
shown in the clerks certificate of distribution.7 It therefore
does not require us to reverse the dismissal of Mullinss appeal.
Finally, Mullins complains that the superior court
provided her with the wrong phone number for the July 20 hearing
on her motion for a preliminary injunction. Even if the court
accidentally provided Mullins with an incorrect number for the
hearing,8 such a mistake would not merit reversal of the courts
decision. Mullins was able to join the hearing after a short
delay and, after the court summarized the part of the hearing she
missed, she was provided with an opportunity to be heard.
Furthermore, the court made no substantive rulings at or based on
the July 20 hearing but only set a briefing schedule.
We thus conclude that none of the alleged procedural
errors by the superior court support the reversal of its
dismissal of Mullinss appeal.
B. Alleged Substantive Errors by Superior Court in
Dismissing Case as Moot
The crux of Mullinss appeal is that it was error to
dismiss her administrative appeal as moot because questions of
the legality of the LBCs conduct and the election remain
unadjudicated. In Mullinss administrative appeal to the superior
court, she alleged that the LBC made the following errors in
approving the petition: (1) improperly finding that the proposed
borough satisfied the regulatory requirements for incorporation;
(2) excluding Slavic and Native populations from the
incorporation process; (3) failing to adequately distribute
informational materials to the public; and (4) violating the Open
Meetings Act by using information gathered during a private tour
of the proposed borough in making its decision. She also
challenged the incorporation election procedures, including the
use of a mail-in ballot, the proposed schedule for counting
ballots, the combining of the vote on borough incorporation with
the vote for borough officials in the same election, and the
combining of the vote on the Pogo PILOT agreement and the vote on
taxes in the same ballot question. Mullins requested that the
superior court stay the election, order that the incorporation
vote be conducted separately from and prior to the election of
borough officials, order that the vote on the Pogo PILOT
agreement and taxes be presented as separate questions, and
direct the LBC to begin the incorporation process from scratch.
The superior court initially dismissed Mullinss appeal
in a summary order. After Mullins filed two additional briefs
with the superior court, the court issued a two- paragraph Order
of Clarification stating, in its entirety:
The court was assigned to hear an appeal
of the Local Boundary Commission decision.
Although multiple defects in the underlying
proceedings were alleged, the end result of
the vote of the community was to frustrate
any effect of the Local Boundary Commission
decision.
Because the court was assigned as an
appeals court, it was not acting as a trial
court. Any complaints about the underlying
proceedings would only be considered on the
question as to whether the decision should be
reversed. The court would not, as an appeal
court, hear new evidence or make decisions on
any matter except whether to reverse or
affirm the decision. Accordingly, the appeal
was not the place to consider complaints,
except as they would affect the appeal.
Because there is no need to reverse the
decision, which no longer has any effect, and
is moot, the case has been dismissed. New
filings will not be addressed.
We apply our independent judgment in determining
whether Mullinss appeal of the LBCs approval of the petition was
properly dismissed as moot.9 A court will generally not consider
questions where events have rendered the legal issue moot.10 A
claim is moot if it has lost its character as a present, live
controversy or if the party bringing the action would not be
entitled to any relief even if it prevails.11
1. Alleged wrongdoing by the LBC
It is clear that Mullinss complaints against the LBC
were mooted by the election. Mullins appealed the LBCs decision
to approve the petition, seeking to have the superior court
overturn the decision based on various alleged defects in the
approval process. The vote against incorporation voided the
approval decision and provided the principal relief that Mullins
sought in her appeal to the superior court.12
Even if claims are moot, a court may still hear them if
they fall within the public interest exception to the mootness
doctrine. In determining whether the public interest exception
applies, a court considers: (1) whether the disputed issues are
capable of repetition, (2) whether the mootness doctrine, if
applied, may repeatedly circumvent review of the issues, and (3)
whether the issues presented are so important to the public
interest as to justify overriding the mootness doctrine.13 None
of these factors is dispositive; each is an aspect of the
question of whether the public interest dictates that a court
review a moot issue.14 The proper inquiry in this case is not
only whether the LBCs challenged approval decision falls under
the public interest exception, but also whether the underlying
wrongful conduct alleged by Mullins does.15
The LBCs approval of the petition, and its allegedly
arbitrary finding that the petition satisfied regulatory
requirements for incorporation, do not fall under the public
interest exception because it is unlikely that a similar petition
will be filed with and approved by the LBC, and such approval
decisions can be, and often are, the subject of legal review.
First, regulations prevent the LBC from accepting a substantially
similar petition for two years after such a petition is rejected
by voters.16 And as a practical matter, the LBC is highly
unlikely to approve the same petition after it was so
overwhelmingly rejected by voters. If and when another petition
is submitted, even tracing the same boundaries as the petition
submitted in January 2006, the LBC must again review whether the
petition satisfies the criteria for incorporation, a highly fact-
specific inquiry.17 It is unlikely that the allegedly erroneous
findings and approval decision will be repeated. Second,
citizens have the right to appeal decisions of the LBC under the
Administrative Procedure Act.18 These decisions, including the
LBCs interpretation and application of regulations concerning
incorporation, are regularly challenged in court and do not evade
review.19 Therefore, even accepting that they are issues of
public importance, the approval of the petition by the LBC, and
any errors in applying regulatory criteria for incorporation, are
moot and will not be considered under the public interest
exception.
Mullinss remaining complaints regarding the LBCs
conduct relate to public participation: exclusion of minority
groups from the incorporation process, insufficient distribution
of informational documents, and reliance on a meeting closed to
the public in making its decision. Such problems are arguably
capable of repetition, although the facts in each instance may
vary slightly.20 Moreover, failure to adequately inform and
include the public in decision-making is a matter of public
importance. But complaints regarding public participation do not
repeatedly evade judicial review. We analyze this prong of the
public interest exception test by comparing the time it takes to
bring the appeal with the time it takes for the appeal to become
moot.21 There is no reason to believe that the time between the
approval of a petition by the LBC based on inadequate public
participation and the incorporation election is insufficient to
permit judicial review.22 Even when it is, public participation
claims remain live and can be adjudicated where the public votes
for incorporation. In Lake and Peninsula Borough v. Local
Boundary Commission, for example, certain villages appealed the
LBCs approval of an incorporation petition subsequently approved
by voters in part on the grounds that the LBC provided inadequate
notice during the incorporation process.23 The superior court
found that notice was defective, a ruling we affirmed, and the
LBC was directed to remedy its notice violations.24 We thus find
that Mullinss public participation claims are moot and do not
fall within the public interest exception.
Mullins specifically alleges that the LBC violated the
Open Meetings Act (OMA) by using information gathered during a
private tour of the proposed borough in making its decision.25
She argues that this claim is not moot, relying on our statement
in Alaska Community Colleges Federation of Teachers, Local No.
2404 v. University of Alaska (ACCFT) that [t]he mootness bar is
especially inappropriate in OMA cases.26 In ACCFT, the plaintiff
sought to void a governmental decision on the grounds that it had
been reached at a private meeting.27 At the superior courts
direction, the decision-making body held a properly noticed open
meeting at which it affirmed its previous decision.28 The court
then dismissed the lawsuit without ruling on whether the original
meeting violated the OMA, finding that any violation had been
remedied.29 We reversed the dismissal and remanded the case to
the superior court to determine whether a violation of the OMA
occurred and if so, whether the subsequent meeting remedied the
violation.30
Unlike in ACCFT, the LBCs approval decision was not
reaffirmed at a curative meeting, and it is not still in effect.
Mullins, unlike the plaintiff in ACCFT, cannot obtain the
substantive relief she seeks because the LBCs decision allegedly
made in violation of the OMA has been voided by subsequent
events. Where a decision is still in effect when an OMA claim is
brought, the holding in ACCFT requires that a court review the
alleged OMA violation even if a curative meeting was held. Where
a decision is no longer in effect, as is the case here, a court
should conduct a standard mootness analysis to determine whether
to address the OMA claim. In this case, for the reasons
described above, Mullinss public participation challenge to LBCs
private car tour as a violation of the OMA is moot and we will
not consider it.31
2. Alleged violations in the election
Mullinss initial pleading in her administrative appeal
of the LBCs approval decision included allegations of wrongdoing
by the Division of Elections in structuring the incorporation
election. Mullins later attempted to amend her pleading to add a
complaint against the Director of Elections as a defendant and
request changes to the upcoming election as relief, titling her
amended pleadings an Amended Notice of Appeal & Complaint. The
superior court never accepted Mullinss addition of a complaint
against the Director of Elections its final Order of
Clarification continued to list the LBC as the only party adverse
to Mullins and noted that Mullinss appeal was not the place to
consider complaints.
A party may not unilaterally add a complaint against a
third party to a pending administrative appeal by amending the
pleadings, as Mullins attempted to do in this case. The superior
court is operating under the authority of different statutory
provisions when it acts as an appellate court32 and a trial court
of general jurisdiction33 and these roles are not generally
combined in the same lawsuit.34 The superior court, acting in its
capacity as an intermediate court of appeal to review an
administrative decision,35 properly declined to review Mullinss
claims against the Division of Elections regarding the
incorporation election, as they were unrelated to the LBCs
decision that was under review. Because the claims regarding the
incorporation election were not properly before the superior
court, they are not properly before us; the only claims properly
before us on appeal are those relating to the LBCs decision to
approve the petition.
If Mullins wished to sue the Division of Elections, she
should have filed an independent lawsuit. Now that the election
has passed, it is highly likely that such a lawsuit would be
moot.36 A superior court can no longer direct the Division of
Elections to change the format and procedures of the
incorporation election, as requested by Mullins in her improper
amended pleadings. Nor does Mullins seek to void the results of
the election. The only relief available to Mullins for alleged
errors in the election would be a declaratory judgment there are
no live issues. Moreover, these alleged errors are unlikely to
evade judicial review. There is no reason to assume that courts
cannot decide challenges related to an election before election
day.37 Even where final judgment is not rendered prior to the
election, election procedures can still be challenged by anyone
opposing the outcome.38 In this case, Mullins does not oppose the
election results and her challenges to the incorporation
election, even if filed as an independent lawsuit, would almost
certainly be moot.39
V. CONCLUSION
The superior court correctly dismissed Mullinss
administrative appeal as moot. For the reasons detailed above,
we AFFIRM.
_______________________________
1 Walker v. Walker, 151 P.3d 444, 447 (Alaska 2007).
2 Akpik v. State, Office of Mgmt. & Budget, 115 P.3d 532,
534 (Alaska 2005).
3 The LBCs motion was served by mail on Mullins on
September 28, 2007. Pursuant to Rule 77(c)(2)(ii) of the Alaska
Rules of Civil Procedure, a party has fifteen days from the date
of service to file an opposition to a motion to dismiss. This
deadline is extended by three days if service is made by mail, as
it was in this case. Alaska R. Civ. P. 6(c). Mullins should
have had eighteen days, until October 16, to respond to the LBCs
motion. Instead, the superior court dismissed her lawsuit on
October 5.
4 Boggess v. State, 783 P.2d 1173, 1182 (Alaska App.
1989) (Even [where] discretion is abused, reversal will be
required only upon a showing of prejudice.).
5 See Johnson v. Johnson, 544 P.2d 65, 71 (Alaska 1975)
(holding no due process violation where party denied opportunity
to be heard on issue is later afforded opportunity to brief and
argue merits through motion for reconsideration).
6 See Brooks v. Brooks, Mem. Op. & J. No. 0993, 2000 WL
34545824, at *2 (Alaska 2000) ([A]ny procedural error was
harmless, since our review of the merits of the superior courts
written decision will cure any prejudice that [appellant]
potentially suffered from flaws in the procedures that led to its
entry.) (citing Sanuita v. Common Laborers & Hod Carriers Union
of America, 402 P.2d 199, 202-03 (Alaska 1965)).
7 Alaska R. Civ. P. 58.1(b), (c).
8 While Mullins stated at the hearing that the clerk sent
her the wrong dial-in code by e-mail, it appears that the clerk
mailed and phoned Mullins with the correct code.
9 See Akpik v. State, Office of Mgmt. & Budget, 115 P.3d
532, 534 (Alaska 2005).
10 Kodiak Seafood Processors Assn v. State, 900 P.2d 1191,
1195 (Alaska 1995).
11 Ulmer v. Alaska Rest. & Beverage Assn, 33 P.3d 773, 776
(Alaska 2001) (quoting Gerstein v. Axtell, 960 P.2d 599, 601
(Alaska 1998)).
12 These facts can be analogized to challenges to
administrative permitting decisions where the permits are no
longer valid, but permit opponents still seek declaratory
judgment that the agency actions relating to the permits were
unlawful. We have regularly found such appeals to be moot. See,
e.g., Akpik, 115 P.3d at 534-35 (holding challenge to agencys
decision not to accept comments on proposed exploratory drilling
project and to approve project to be moot where project was
completed and project permits had expired); State, Dept of
Natural Res. v. Greenpeace, Inc., 96 P.3d 1056, 1068 (Alaska
2004) (holding challenge to agencys decision to lift stay on
issuance of permit to be moot where permit had expired); Kodiak
Seafood Processors, 900 P.2d at 1196 (holding challenge to
agencys decision to issue exploratory permit to be moot where
permit was revoked before trial, but considering merits under
public interest exception).
13 Ulmer, 33 P.3d at 777-78.
14 Kodiak Seafood Processors, 900 P.2d at 1196.
15 In formulating the test for applying the public
interest exception, we have referred to disputed issues rather
than claims. See id.; see also Akpik, 115 P.3d at 535 (noting
that a court may address certain issues if they fall within the
public interest exception and proceeding to analyze issues raised
by appellant underlying his mooted challenge to an agency
decision) (emphasis added).
16 3 Alaska Administrative Code 110.650 (2009).
17 See Ulmer, 33 P.3d at 778 (indicating that proper scope
of inquiry for first prong of public interest exception test in
challenge to initiative petition summary language is limited to
whether specific language of initiative and summary is likely to
be repeated).
18 AS 29.05.100(b).
19 See, e.g., Petitioners for Incorporation of City &
Borough of Yakutat v. Local Boundary Commn, 900 P.2d 721 (Alaska
1995) (reviewing alteration of incorporation petition by the
LBC); Keane v. Local Boundary Commn, 893 P.2d 1239 (Alaska 1995)
(reviewing approval of incorporation petition by the LBC); Lake &
Peninsula Borough v. Local Boundary Commn, 885 P.2d 1059 (Alaska
1994) (reviewing approval of incorporation petition by the LBC);
Valleys Borough Support Comm. v. Local Boundary Commn, 863 P.2d
232 (Alaska 1993) (reviewing the LBCs decision to select one
incorporation petition over another).
20 Indeed, the ombudsman found that the LBC has
demonstrated a pattern of failing to adequately engage in
consultation with Alaska Natives when making decisions.
21 Copeland v. Ballard, 210 P.3d 1197, 1202 (Alaska 2009).
22 See Ulmer, 33 P.3d at 778 (Although such appeals
typically must be decided by election day to avoid becoming moot,
there is no reason to believe that we cannot resolve such appeals
in a timely fashion. Indeed, we have frequently done that.)
(internal citations omitted); OCallaghan v. State, 920 P.2d 1387,
1388-89 (Alaska 1996) (holding appeal of election result moot,
and declining to apply public interest exception because if
issues were repeated, a timely election challenge would be
possible).
23 885 P.2d 1059, 1060-61 (Alaska 1994).
24 Id. at 1062-63, 1067.
25 The Open Meetings Act requires [a]ll meetings of a
governmental body of a public entity of the state [to be] open to
the public with limited exceptions not applicable in this case.
AS 44.62.310(a). Meeting is defined as a gathering of members of
a governmental body when . . . a matter upon which the
governmental body is empowered to act is considered by the
members collectively. AS 44.62.310(h)(2). An actual decision
need not be reached at the meeting for the statute to apply. See
Brookwood Area Homeowners Assn, Inc. v. Municipality of
Anchorage, 702 P.2d 1317, 1323 (Alaska 1985). An OMA violation
may be cured by holding another meeting in compliance with notice
and other requirements of this section and conducting a
substantial and public reconsideration of the matters considered
at the original meeting. AS 44.62.310(f).
26 677 P.2d 886, 889 (Alaska 1984).
27 Id. at 888.
28 Id.
29 Id.
30 Id. at 892-93.
31 Mullins also appeals the superior courts denial of her
motion for a preliminary injunction staying the election. But
the preliminary injunction motion was based on the alleged
wrongdoing of the LBC, and these claims are moot for the reasons
discussed above.
32 See AS 22.10.020(d).
33 See AS 22.10.020(a).
34 It may in some instances be appropriate for a superior
court to consolidate a separately filed administrative appeal and
lawsuit concerning the same set of facts.
35 See Alaska R. App. P. 601 612 (establishing rules for
superior court acting as an intermediate appellate court).
36 See, e.g., Peloza v. Freas, 871 P.2d 687, 688 (Alaska
1994) (holding pre-election challenge to refusal to place
candidate on ballot to be mooted by election); Falke v. State,
717 P.2d 369, 371 (Alaska 1986) (holding pre-election action
seeking to remove candidate from ballot to be mooted by election
in which candidate lost); see also Grady v. State, Mem. Op. & J.
No. 1110, 2002 WL 31529075, at *1 (Alaska Nov.13, 2002) (holding
pre-election action seeking ruling that candidate forfeited
nomination to be mooted by election in which candidate lost).
37 See supra note 22.
38 See AS 15.20.540 (establishing election challenge
procedures whereby ten qualified voters can challenge the
approval or rejection of any question or proposition on the
grounds of malconduct, fraud, or corruption on the part of an
election official or any corrupt practices as defined by law
sufficient to change the results of the election.).
39 Mullins also challenges the constitutionality of the
Pogo PILOT agreement that was placed on the ballot. We have
established a general rule . . . that a court should not
determine the constitutionality of an initiative unless and until
it is enacted. State v. Trust the People, 113 P.3d 613, 614 n.1
(Alaska 2005); see also Kodiak Island Borough v. Mahoney, 71 P.3d
896, 898 (Alaska 2003) (Courts will not review the
constitutionality of the substantive initiative proposal until
and unless the voters pass the ordinance.); Brooks v. Wright,
971 P.2d 1025, 1027 (Alaska 1999) ([g]eneral contentions that the
provisions of an initiative are unconstitutional are justiciable
only after the initiative has been enacted by the electorate
(quoting Boucher v. Engstrom, 528 P.2d 456, 460 n.13 (Alaska
1974))). Pursuant to this rule, a court should not review the
constitutionality of the defeated Pogo PILOT agreement even if
raised in an independent lawsuit.
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| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
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