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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Marcy v. Matanuska-Susitna Borough (9/28/2018) sp-7306
Notice: This opinion is subject to correction before publication in the P ACIFIC 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, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
RONDA MARCY, )
) Supreme Court No. S-16617
Appellant, )
) Superior Court No. 3PA-16-01952 CI
v. )
) O P I N I O N
MATANUSKA-SUSITNA )
BOROUGH,
) No. 7306 - September 28, 2018
)
Appellee. )
)
A
ppeal from the Superior Court of the State of Alaska, Third
Judicial District, Palmer, David Zwink, Judge pro tem, and
Vanessa White and Jonathan A. Woodman, Judges.
Appearances: Ronda Marcy, pro se, Palmer, Appellant.
NicholasSpiropoulos,BoroughAttorney,Matanuska-Susitna
Borough Attorney's Office, Palmer, for Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
and Carney, Justices.
WINFREE, Justice.
I. INTRODUCTION
A borough resident filed suit against the borough and citizens who had
sponsored a borough ballot initiative prohibiting commercial marijuana businesses. The
suit, filed 32 days before the borough election, sought declaratory and injunctive relief
that the initiative was unconstitutional and unlawful and should be removed from the
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election ballot. Given the imminent election, the superior court ordered the case held in
abeyance pending the initiative vote's outcome. After borough voters rejected the
initiative, the court dismissed the case as moot.
The borough resident appeals, arguing that the merits of her declaratory
judgment claim should be heard under the public interest exception to the mootness
doctrineand that thesuperior court issued procedurally defective orders, violated her due
process rights, and erroneously awarded attorney's fees against her. We affirm the
superior court because it did not abuse its discretion in its procedural decisions; the
resident's due process rights were not violated; we decline to invoke the public interest
exception to address the moot claims; and the resident failed to properly bring her
attorney's fees appeal.
II. FACTS AND PROCEEDINGS
In November 2014 Alaskans passed a statewide ballot initiative enacting
1
AS 17.38, which became law in February 2015, generally legalizing marijuana.
Subsection 210(a) permits local governments to "prohibit the operation of marijuana
cultivation facilities, marijuana product manufacturing facilities, marijuana testing
facilities, or retail marijuana stores through the enactment of an ordinance or by a voter
initiative."
In May 2015 the Matanuska-Susitna Borough Clerk received a municipal
initiative petition titled "Application for Ballot Initiative to Prohibit Marijuana
Businesses Except ThoseInvolving Industrial Hemp in theMatanuska-SusitnaBorough"
(the Proposed Initiative). After the petition received the requisite number of signatures,
1 See AS 17.38.010(a) ("In the interest of allowing law enforcement to focus
on violent and property crimes, and to enhance individual freedom, the people of the
state of Alaska find and declare that the use of marijuana should be legal for persons 21
years of age or older.").
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the Clerk certified the Proposed Initiative for the October 2016 local ballot. In May 2016
the Borough Assembly adopted an ordinance establishing a temporary moratorium on
marijuana establishments pending the Proposed Initiative's October election outcome.
RondaMarcy, aBorough resident, had taken steps after AS17.38's passage
to open a marijuana business; she purchased greenhouses, moved them to her property,
and outfitted them to grow marijuana. She was appointed to the Borough's Marijuana
Advisory Committee, which was tasked with reporting public hearing comments and
opinions to the Borough's Planning Committee and the Borough Assembly. Marcy
attended hearings on both the Proposed Initiative and the proposed moratorium
ordinance, and at a February 2016 meeting she received a copy of the Proposed
Initiative.
On September 2 - only 32 days before the election - Marcy filed a
complaint for declaratory judgment and injunctive relief accompanied by a motion for
2
expedited consideration against the Borough and the Proposed Initiative's 14 sponsors.
Marcy sought injunctive relief "to prevent [the Proposed Initiative] from being placed
before the voters, to have [it] removed from the Ballot, and to prevent any votes from
being counted on the [Proposed Initiative], until after this matter is resolved." Marcy
also sought declaratory relief on claims that the Proposed Initiative was constitutionally
and statutorily prohibited; that AS 17.38.210(a), authorizing local governments to
prohibit the operation of marijuana businesses through voter initiative, was
unconstitutional; that both the Proposed Initiative and the moratorium ordinance were
unconstitutional property takings; and that it was error for the Borough Clerk to have
certified the Proposed Initiative for the ballot. Superior Court Judge Vanessa White was
2 The Borough is the only defendant participating in this appeal.
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assigned the case. The court granted expedited consideration, and the Borough timely
responded on September 19.
On September 22 Judge White assigned the case to Superior Court Judge
pro tem David Zwink; Judge White and Judge Zwink ordered the case held in abeyance
pending the October 4 election results. The court explained that absentee voting already
had begun and that any relief available before the election "would be inherently
disruptive and prejudicial to the ordinary voting process already in progress." Marcy
moved for reconsideration, or in the alternative a stay pending interlocutory appeal, on
September 28; Judge White denied her motion the following day. Judge White reiterated
that both orders were entered without prejudice, that Marcy was entitled to amend her
complaint, and that Marcy could seek injunctive relief to stay implementation of the
Proposed Initiative if it passed or could assert the public interest exception to try to
litigate claims that appeared facially moot if the Proposed Initiative failed.
The Proposed Initiative was rejected by Borough voters in the October 4
3 three days later Judge Zwink issued a notice of intent to dismiss the case as
election;
moot and invited the parties to file written objections. Marcy objected, the Borough
requested the case be dismissed, and Marcy filed a reply. For reasons not apparent from
the record, the case then was reassigned to Superior Court Judge Jonathan A. Woodman.
The reassignment notice apparently was not served on the parties.
In late January 2017 Judge Woodman ordered the matter dismissed with
prejudice for "the reasons presented" in the Borough's response to the court's earlier
dismissal notice and permitted the Borough to seek attorney's fees and costs. The
following week the Borough requested final judgment and attorney's fees and costs.
3
The Borough Assembly's moratorium on marijuana businesses expired on
October 19.
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Marcy sought reconsideration of the dismissal and a stay of the Borough's attorney's
fees and costs request, styled as a motion to stay the execution of judgment. The court
promptly denied Marcy's motions as moot.
Marcy appealed in mid-February, asserting that the superior court erred by:
granting the abeyance; issuing a notice to dismiss the case as moot; ordering the case
dismissed; failing to provide findings of fact and conclusions of law in its dismissal order
and reconsideration order; failing to notify Marcy the case had been reassigned to Judge
Woodman; awarding the Borough attorney's fees; and violating her due process rights.
In March the superior court issued its final judgment and awarded the
Borough attorney's fees. Neither party supplemented the appellate record to include
these orders.
III. STANDARD OF REVIEW
The superior court's procedural decisions generally are reviewed for abuse
4 "Whether there was a violation of due process is a question of law, which
of discretion.
we review de novo."5 6
We also review questions of mootness de novo.
IV. DISCUSSION
Marcy alleges that the superior court committed a variety of errors when
denying her requests for declaratory and injunctive relief removing the Proposed
Initiative from the October 2016 ballot. Marcy also contends the court made several
4 Mullins v. Local Boundary Comm'n , 226 P.3d 1012, 1015 (Alaska 2010)
(citing Walker v. Walker , 151 P.3d 444, 447 (Alaska 2007)).
5 Patrick v. Municipality of Anchorage, Anchorage Transp. Comm'n, 305
P.3d 292, 297 (Alaska 2013) (citing D.M. v. State, Div. of Family & Youth Servs ., 995
P.2d 205, 207 (Alaska 2000)).
6 Mullins, 226 P.3d at 1015 (citing Akpik v. State, Office of Mgmt. &Budget ,
115 P.3d 532, 534 (Alaska 2005)).
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----------------------- Page 6-----------------------
procedural errors, asubstantiveerror, andanerroneousattorney's fees award against her.
We address each category in turn.
A. Alleged Procedural Errors
Marcy contends that the superior court made several procedural errors,
including wrongfully issuing an order holding the case in abeyance pending the outcome
of the election; wrongfully issuing a notice of intent to dismiss the lawsuit after the
Proposed Initiative failed on the ballot; failing to include findings of fact and conclusions
of law in its dismissal order; and not providing her notice of the judicial reassignment
prior to the case being dismissed. Marcy argues that some of these alleged errors
violated her constitutional rights and require us to reverse the dismissal of her appeal.
1. It was not an abuse of discretion to issue the abeyance order.
First, we reiterate that "[p]rior to [an] election, courts will review only the
question whetheran initiativemeets theconstitutional and statutoryprovisionsregulating
7
initiatives."
The primary thrust of Marcy's challenge - that the Proposed Initiative is
an unconstitutional taking and zoning by initiative - is not such a challenge; it is a
substantive challenge. Although "courts are . . . empowered to conduct pre-election
review of initiatives where the initiative is clearly unconstitutional or clearly unlawful,"
it is not clear that Marcy presented a valid pre-election challenge to the Proposed
8
Initiative. Because "[c]ourts will not review the constitutionality of the substantive
7 Kodiak Island Borough v. Mahoney , 71 P.3d 896, 898 (Alaska 2003).
8 Cf. Alaskans for Efficient Gov't, Inc. v. State , 153 P.3d 296, 298, 302
(Alaska 2007) (reviewing proposed initiative to create supermajority requirement and
concluding that lieutenant governor properly rejected initiative "for failing to comply
with constitutional provisions regulating initiatives" (quoting State v. Trust the People ,
113 P.3d 613, 614 n.1 (Alaska 2005))).
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initiative proposal until and unless the voters pass the ordinance," the superior court did
9
not abuse its discretion by holding the case in abeyance pending the election results.
Second, even if Marcy presented legitimate pre-election challenge issues,
"where an impending election is imminent and . . . election machinery is already in
progress, equitable considerations might justify a court in withholding the granting of
immediately effective relief."10 Herethe Borough's "election machinery" was in process
as early as August 22 - 11 days before Marcy's complaint - when voting machine
programming cards were delivered to the Borough. On August 25 - more than a week
before Marcy's complaint - 69,875 printed ballots corresponding to the programming
cards were delivered for the Borough's election equipment. By the time the Borough
filed its expedited answer on September 19, absentee voting had begun.
Marcy argues that, in the 13 days "between the time the complaint was filed
and the absentee ballots were mailed out," the superior court could have "granted the
injunction, . . . ordered the [Proposed Initiative] removed from the ballot, . . . prevented
any vote on the [Proposed Initiative], and[/or] . . . ordered the votes sealed and not
counted if it was voted on, pending resolution of the matters in the complaint." The first
9 See Mahoney , 71 P.3d at 898; see also Pebble Ltd. P'ship v. Parnell , 215
P.3d 1064, 1077 (Alaska 2009) ("We have long recognized that '[t]he general rule is that
a court should not determine the constitutionality of an initiative unless and until it is
enacted.' " (alteration in original) (quoting Alaskans for Efficient Gov't , 153 P.3d at
298)).
10 Wade v. Nolan, 414 P.2d 689, 703-04 (Alaska 1966) (Rabinowitz, J.,
concurring) (emphasis omitted) (quoting Reynolds v. Sims, 377 U.S. 533, 585 (1964))
(noting that a court should consider upcoming election and state election laws, then act
on equitable principles).
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three propositions would have resulted in "a great disruption to the election process" 11
because, as the Borough Clerk explained, there was not sufficient time to reprogram the
voting machine memory cards before the election without "call[ing] into question the
results of all other questions on the ballot." The fourth option, ordering the votes sealed,
would have resulted in practically the same effect as "a prohibitory injunction staying
enforcement of theballot measure ifit passes," which the superior court explained Marcy
could pursue if the Proposed Initiative passed.
It was not an abuse of discretion to order the case held in abeyance pending
the ballot results; no enduring harm or prejudice resulted because - even if Marcy had
presented a valid pre-election challenge to the Proposed Initiative - the challenged
issues could have been addressed immediately following the election had the Proposed
12
Initiative passed.
Marcy also argues that the abeyance order "denied her constitutional rights
of due process." We disagree; Marcy was not denied her "opportunity to be heard and
11 See In re 2011 Redistricting Cases , 294 P.3d 1032, 1049 (Alaska 2012)
(Matthews, J., dissenting) (quoting In re 2011 Redistricting Cases , No. S-14721 (Alaska
Supreme Court Order, May 22, 2012) (rejecting redistricting plan in part because
changes to districts were so late in the election process that it would cause great
disruption)); see also Pebble Ltd. P'ship ex rel. Pebble Mines Corp. v. Lake &Peninsula
Borough, 262 P.3d 598, 602 (Alaska 2011) (Stowers, J., concurring) (explaining there
was "no realistic way" to have full briefing, have oral argument, and issue appellate
decision remanding for expedited decision on pre-election initiative challenge issues
superior court had failed to reach before borough was required to mail absentee ballots
for election seven weeks away).
12 See Lake & Peninsula Borough, 262 P.3d at 602 (Stowers, J., concurring)
("Because all of these pre-election challenge issues - as well as any new post-election
issues - can be raised on appeal following the Borough election, and because no
enduring harm will result from denying the emergency petition for review, I think it
acceptable (though certainly not optimal) to deny the petition and allow the voters to
express their views on the initiative.").
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----------------------- Page 9-----------------------
the right to adequately represent [her] interests" because she had multiple opportunities
13
to represent her interests.
Marcy had her opportunity to be heard through an expedited
motion for reconsideration and through interlocutory petition to this court. The superior
court addressed her motions expeditiously; it neither abused its discretion nor violated
her due process rights by placing the case in abeyance due to the impending election.
2. It was not an abuse of discretion to issue the notice of intent to
dismiss the case as moot.
Marcy next argues thesuperior court erred when it issued its noticeofintent
to dismiss the case as moot following the Proposed Initiative's defeat on the ballot. But
it was not an abuse of discretion to sua sponte raise the issue of mootness and request
briefing because "[t]he court inherently possesses the power to request briefing on issues
14
which come to its attention."
Marcy's action to declare the Proposed Initiative
unconstitutional and remove it from the ballot became moot after Borough voters
rejected the Proposed Initiative. Marcy does not demonstrate how the court's notice,
which provided her the opportunity to brief the issue, resulted in prejudice requiring
15
reversal.
Marcy also argues the superior court violated her due process rights by
issuing its notice of intent to dismiss for mootness and its order dismissing the case. We
disagree; in response to the court's notice of intent to dismiss Marcy filed both an
13 SeePatrickv. Municipalityof Anchorage,AnchorageTransp.Comm'n ,305
P.3d 292, 298 (Alaska 2013) (quoting D.M. v. State, Div. of Family &Youth Servs. , 995
P.2d 205, 213-14 (Alaska 2000)).
14 See Bowers Office Prods., Inc. v. Univ. of Alaska, 755 P.2d 1095, 1096 n.3
(Alaska 1988).
15 See Mullins v. Local Boundary Comm'n, 226 P.3d 1012, 1016 n.4 (Alaska
2010) ("Even [where]discretionis abused, reversal will be required only upon a showing
of prejudice." (alteration in original) (quoting Boggess v. State, 783 P.2d 1173, 1182
(Alaska App. 1989))).
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objection and a reply to the Borough's response, and following the court's dismissal
order she filed a motion for reconsideration. The court's decision to issue a notice of
intent to dismiss the case as moot following the failed passage of the Proposed Initiative
thus was neither an abuse of discretion nor a violation of due process; it instead provided
Marcy another opportunity to be heard. 16
3. It was not an abuse of discretion to issue the dismissal without
findings of fact and conclusions of law.
Marcy next argues the superior court erred by failing to make findings of
fact and conclusions of law as required by Alaska Civil Rule 52(a) in its dismissal order.
We disagree. Findings and conclusions were not required for the dismissal order, which
17
was not an adjudication on the merits of Marcy's claim. Second, the court's order
incorporated the reasoning in the Borough's response to the court's dismissal notice.
4. Marcy hadnoticeandopportunitytopreemptJudgeWoodman.
Marcy finally argues that "[i]t was error for the order of dismissal with
prejudice to be entered, when the case was still unassigned, according to the electronic
docket," and that she "was denied her constitutional and statutory right to notice and an
16 See Patrick , 305 P.3d at 298 ("We have held that '[t]he crux of due process
is [the] opportunity to be heard and the right to adequately represent one's interests.' "
(alterations in original) (quoting D.M., 995 P.2d at 213-14)).
17 See Alaska R. Civ. P. 52(a) ("Findings of fact and conclusions of law are
unnecessary on decisions of motions under Rule 12 or 56 or any other motion except as
provided in Rule 41(b)." (emphasis added)); Alaska R. Civ. P. 41(b) ("If the court
renders judgment on the merits against the plaintiff, the court shall make findings as
provided in Rule 52(a).").
Marcy similarly asserted in her opening brief that "[i]t was error for the
[superior] court to deny reconsideration, without reason or cause and without any
findings of fact and conclusions of law." But she abandoned this argument in her reply
brief.
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opportunity to move to preempt, or move to recuse, the judge." The Borough contends
this argument is waived because Marcy failed to raise this issue below, the issue does not
fit into an exception for consideration, and, in the alternative, the dismissal order was not
plain error because Marcy had actual notice of the assignment when the order was issued
but failed to raise a peremptory challenge in, or in addition to, her motion for
reconsideration. We agree that Marcy failed to timely raise the argument below.
Marcy failed to timely peremptorily challenge Judge Woodman's
18 She received actual notice of Judge
assignment under Alaska Civil Rule 42(c).
Woodman's assignment to her case in January 2017 when she received his signed
dismissal order, but she did not file or raise a peremptory challenge within five days as
allowed by the rule.19 Marcy instead filed motions in February seeking reconsideration
and an execution of judgment stay, thus waiving her right to peremptorily challenge
Judge Woodman because she "knowingly participat[ed] before that judge in . . . [a]
judicial proceeding which concerns the merits of the action and involves the
consideration of evidence or of affidavits."20
Marcy also had the opportunity to file a motion to recuse or disqualify
Judge Woodman for cause,21 but she did not do so. We see no error.
B. Alleged Substantive Error - Dismissal For Mootness
18 See Alaska R. Civ. P. 42(c) (providing litigants a change of judge as a
matter of right).
19 See Alaska R. Civ. P. 42(c)(3) ("Failure to file a timely notice precludes
change of judge as a matter of right. Notice of change of judge is timely if filed
. . . within five days after notice that the case has been assigned to a specific judge.").
20 See Alaska R. Civ. P. 42(c)(4)(i) (listing causes for disqualification and
directing that "right to change as a matter of right a judge" is waived by participation).
21 See AS 22.20.020.
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Marcy requested declaratory relief that the Proposed Initiative was
unconstitutional for a variety of reasons and that it violated statutes prohibiting zoning
by initiative. Marcy wants those issues decided. But because the Proposed Initiative was
not enacted by the Borough voters and there is no live controversy, under our precedent
22
we refrain from determining its constitutionality and compliance with statutes.
Marcy argues that the Proposed Initiative's constitutionality merits review
under the public interest exception to the mootness doctrine. She contends our review
would avoid "the needless repetition that could open floodgates of litigation to correct
[similar initiatives] now being circulated for signatures." In determining whether the
public interest exception applies, we consider: "(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."23
Reviewing Marcy's constitutional challenges to the Proposed Initiative to
avoid litigating similar initiatives is not so important to the public interest as to justify
overriding the mootness doctrine, because those unknown initiatives simply are not
22 "We have established a 'general rule . . . that a court should not determine
the constitutionality of an initiative unless and until it is enacted.' " Mullins v. Local
Boundary Comm'n , 226 P.3d 1012, 1021 n.39 (Alaska2010) (alterationin original) (first
quoting State v. Trust the People , 113 P.3d 613, 614 n.1 (Alaska 2005); and then citing
Kodiak Island Borough v. Mahoney , 71 P.3d 896, 898 (Alaska 2003); Brooks v. Wright ,
971 P.2d 1025, 1027 (Alaska 1999)).
23 Mullins, 226 P.3d at 1018 (quoting Ulmer v. Alaska Rest. & Beverage
Ass'n , 33 P.3d 773, 777-78 (Alaska 2001)); see, e.g., Peloza v. Freas, 871 P.2d 687, 688
(Alaska1994) (reviewing pre-electionchallengeotherwisemoot by election under public
interest exception); Falke v. State, 717 P.2d 369, 371 (Alaska 1986) (same).
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----------------------- Page 13-----------------------
before us.24 An opinion on the Proposed Initiative's constitutionality would be purely
advisory at best and inapplicable at worst.25
We believe it best to wait for a proposed or
actual law challenge grounded on real facts so that our decision is properly focused and
avoids any unintended consequences. Therefore, the public interest exception does not
persuade us to review Marcy's moot constitutional and statutory claims. 26
C. Borough's Attorney's Fees Award
The parties dispute whether it was appropriate for the superior court to
award the Borough attorney's fees, but the issue is not properly before us. Under Alaska
24 See Ahtna Tene Nené v. State, Dep't of Fish & Game , 288 P.3d 452, 457-
58 (Alaska 2012) ("Even in a declaratory judgment case . . . where the rights or
obligations of parties are delineated by the court, courts should avoid becoming involved
in premature adjudication of disputes that are uncertain to occur." (alteration in original)
(quoting Ulmer, 33 P.3d at 776)).
25 See Ulmer, 33 P.3d at 779.
26 Marcy also had requested that the Borough Assembly's moratorium
prohibiting the processing of applications for operation of marijuana establishments in
the five months preceding the election pending the Proposed Initiative's outcome be
declared an unconstitutional taking. But the Borough contended in its response to
Marcy's objection to the court's notice of intent to dismiss the case as moot that her
takings claim was "not before the court" because she had expressly reserved the right to
"present [her] losses and damages . . . in a separate taking[s] action." The court noted
"the reasons presented in the Borough's Response" in support of its dismissal order.
(Emphasis in original.) We presume from this that the court saw no need to address the
merits of the declaratory relief claim about the underlying takings action because
"[d]eclaratory relief is a 'nonobligatory remedy' " that " 'create[s] an opportunity, rather
than a duty' for . . . courts to grant relief to qualifying litigants." Lowell v. Hayes, 117
P.3d 745, 756 (Alaska 2005) (quoting Wilton v. Seven Falls Co., 515 U.S. 277, 288
(1995)). Although a takings claim would not be moot because it would not be premised
on the Proposed Initiative's passage, the dismissal of Marcy's declaratory relief claim
would not seem to affect Marcy's apparently preserved right to bring "a separate
taking[s] action."
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Appellate Rule 210(a), "the record does not include documents or exhibits filed after . . .
the filing date of the notice of appeal." Marcy filed this appeal on February 14, 2017.
Although the Borough filed its attorney's fees motion on January 31, the court did not
enter the attorney's fees and costs award until March 28. Prior to Marcy's appeal she
had filed a motion to stay execution of judgment pending her motion for reconsideration,
which the court denied; she then apparently never opposed the Borough's motion on the
merits. Because Marcy apparently failed to oppose the motion and neither party
27 we are unable to review the
requested that the court's order be added to the record,
merits of the superior court's decision.28
V. CONCLUSION
The superior court's judgment is AFFIRMED.
27 See Alaska R. App. P. 210(i)(1) ("Materials . . . filed with the trial court
after the filing date of the notice of appeal may be added to the record on appeal only
upon motion designating by title, description, and filing date the materials sought to be
added, and are limited to the following: . . . materials pertaining to attorney's fees, costs,
or prejudgment interest . . . .").
28 See David S. v. State, Dep't of Health & Soc. Servs. Office of Children's
Servs., 270 P.3d 767, 783 (Alaska 2012) (refusing to consider fact subsequent to appeal
because "Appellate Rule 210(a) provides that 'the record does not include documents or
exhibits filed after . . . the filing date of the notice of appeal' ").
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