Marcy v. Matanuska-Susitna Borough, 433 P.3d 1056

Background

After Alaska legalized marijuana statewide, AS 17.38.210(a) permitted local governments to ban commercial marijuana businesses by ordinance or voter initiative.
Matanuska-Susitna Borough certified a local initiative to prohibit marijuana businesses for the October 4, 2016 ballot; the Borough adopted a temporary moratorium pending the vote.
Resident Ronda Marcy (pro se), who had prepared to open a marijuana business, sued 32 days before the election seeking declaratory and injunctive relief to remove the initiative from the ballot and to declare it unconstitutional and an unlawful taking.
The superior court granted expedited consideration but, given that absentee voting had begun and ballots/machine programming were already in progress, ordered the case held in abeyance pending the election results.
Voters rejected the initiative; the superior court then issued a notice of intent to dismiss the case as moot, invited briefing, and ultimately dismissed with prejudice. The court later entered an award of attorney’s fees to the Borough.
Marcy appealed, arguing procedural errors (abeyance, mootness notice, lack of findings, reassignment notice), due process violations, merits review under the public interest exception to mootness, and contesting the attorney’s fees award.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court abused discretion by holding the case in abeyance pending the election	Marcy: pre-election relief was feasible and required to prevent irreparable harm (remove initiative, seal votes, or enjoin ballot)	Borough: election machinery and absentee voting were already underway; pre-election relief would disrupt election	No abuse of discretion; abeyance appropriate given imminent election and absentee ballots/machine programming already in progress
Whether dismissing as moot after initiative failed was improper	Marcy: merits should be decided under the public interest exception to prevent repetition of similar initiatives	Borough: defeat of initiative rendered challenge moot; court may raise mootness sua sponte and request briefing	Dismissal for mootness proper; public interest exception not invoked because issues were not sufficiently important or likely to recur to justify exception
Whether procedural defects (no findings, lack of notice of reassignment, denial of reconsideration) violated due process	Marcy: orders lacked findings, she was not notified of reassignment, and denial of relief deprived her of process	Borough: findings not required for non-merits dismissal; Marcy had opportunities to be heard and failed to timely challenge reassignment	No violation: Rule 52 findings unnecessary for dismissal on mootness; Marcy had notice/opportunity and waived right to peremptory challenge by failing to timely act
Whether attorney's fees award to Borough is reviewable/erroneous	Marcy: contests fee award	Borough: sought fees after dismissal	Court declined to review fees because the appellate record did not include post-appeal fee filings and Marcy apparently did not oppose the fee motion in the trial court

Key Cases Cited

Mullins v. Local Boundary Comm’n, 226 P.3d 1012 (Alaska 2010) (general rule against deciding initiative constitutionality before enactment; factors for public-interest exception)
Patrick v. Municipality of Anchorage, Anchorage Transp. Comm’n, 305 P.3d 292 (Alaska 2013) (due process requires opportunity to be heard; review standard for due process questions)
Kodiak Island Borough v. Mahoney, 71 P.3d 896 (Alaska 2003) (courts generally decline pre-election review of initiative substance unless clearly unlawful)
Pebble Ltd. P’ship v. Parnell, 215 P.3d 1064 (Alaska 2009) (reluctance to act when full pre-election resolution is impracticable)
Ulmer v. Alaska Rest. & Beverage Ass’n, 33 P.3d 773 (Alaska 2001) (public-interest exception to mootness articulated; prudential considerations for declaratory relief)
Lowell v. Hayes, 117 P.3d 745 (Alaska 2005) (declaratory relief is discretionary and nonobligatory)