*1 APPENDIX 1 No. S-5605. FAIPEAS, Neal,
Connie Christina J. Les Supreme Court of Alaska. Baird, Wakefield, Milton, Logan Anne Coen, Jr., Carter, Jerry Herman Dan 15, 1993. Oct. Self, Roop, Purget, Ileen Faron W. Allen, Petitioners, F. John v. ANCHORAGE, OF
MUNICIPALITY Respondent. *2 Lazarus, Atty., R.
Denis Asst. Mun. McVeigh, Atty., Richard L. Mun. Anchor- respondent. for age, MOORE, C.J., Before WITZ, MATTHEWS, RABINO BURKE and JJ.
OPINION
MATTHEWS, Justice. I. FACTS AND PROCEEDINGS January On Mu- Assembly nicipal passed an ordinance prohibited which discrimination- on the employment basis of an individual’s orientation. a sexual Soon thereafter citi- group, Against zen’s Citizens the Homosex- Ordinance, began circulating petition ual a for a on the ordinance. The group obtained more than minimum signatures number of and filed municipal clerk. On 22, 1993, February the clerk certified that contained sufficient requirements and met the of law. Follow- certification, ing prepared the clerk following proposition April municipal election: 92-116(S), Should AO adds sexu- al to the list of orientation the purpose public employ- classes for contractors, ment or remain law? No
Yes [ ] [ ] Petitioners, Faipeas Connie others (Faipeas) appealed certification the clerk’s sought superior decision to the court election, pertained stay of the as it so far referendum, pending final decision appeal. superior their denied Faipeas Faipeas’ stay. motion for then interlocutory sought review of this denial Mendel, Huntington, E. Allison Mendel & Anchorage, petitioners. for court. their granted from this We 14, 1993, and, partial. Although requirements remanded these April
for review explicitly are not set out in the Anchor- superior court with instruc- this case to the age pertaining charter stated: grant stay. Our order tions referendums, they initiatives nec- consideration of On essarily implied. *3 emergency for and the motion review petitioners c. made a clear Since have 6, 1993, stay, April filed on showing probable success on the mer- respect its with to one of their conten- IT IS ORDERED: tions, injunctive appropriate. relief is review from the 1. The for should, Rulings possi- in election cases if superior denying peti- court order of the ble, prior be made to the election in order stay pending expense motion for a resolu- to avoid needless and the shock tioners’ public expectations to which would result appeal tion of their administrative is if an election were overturned. Since we GRANTED. petitioners concluded that have have denying petitioners’ 2. The order mo- showing probable made a clear suc- stay tion for is REVERSED and this case respect cess on the merits with to their superior is REMANDED to the concerning partiality claim of the ref- stay municipal with instructions to petition, necessary erendum it is not for showing 20, 1993, us to examine whether a similar April election scheduled for petition- respect has been made with An- respect with to the referendum on ers’ contention that the ballot 92-116(S), chorage Municipal Ordinance adequately descriptive. is not pending final determination on the merits 4. This case is REMANDED to the appeal by superior court. superior court for further action consis- 3. a. Petitioners have made a clear possible tent this order. If it with the mer- showing probable success on reprint April for the 20 election ballots respect to their claim that the its with referendum, which do not contain the petition presented referendum the ordi- court is authorized to order such other may.be appropri- remedial measures as partisan light. nance in a biased ate. parti- title of the referendum granted The relief 5. we have moots potentially prejudicial.
san and
It reads:
emergency
stay.
motion for
Repeal
‘Spe-
“Referendum Petition to
”
opinion
An
6.
will follow.1
op-
cial Homosexual Ordinance.’ While
ponents
regard
of the ordinance
it as
opinion
fully
This
sets forth more
the rea-
homosexuals,
giving special rights
pro-
April
sons for our
14th order.
ponents
merely adding
view it as
sexual
II. STANDARD OF REVIEW
important
orientation to the list of other
questions
Two
were decided
this court
personal
and choices such
characteristics
granting
stay
election
race,
gender, religion,
as
and marital sta-
respect
to the referendum:
tus,
protected
which are
from discrimina-
1)
petition fairly
Did
public
employment.
tion
accurately describe the ordinance it
subject
b. The
to the re-
sought
repeal?
quirements adopted Burgess
v. Alaska
2)
Must a referendum
in an elec-
Governor,
Lieutenant
654 P.2d
by Municipality
tion conducted
(Alaska 1982),
275-76
that initiative and
Anchorage fairly
accurately
de-
proposi-
and ballot
to re-
scribe
seeks
peal?
tion summaries must be truthful and im-
from this order.
Chief Justice Moore dissented
Code,
undersigned qualified
pal
we the
question, Burgess v.
Concerning the first
Municipality Anchorage
voters of the
Governor, 654 P.2d
Lieutenant
Alaska
calling
this Referendum Petition
submit
the lieu-
(Alaska 1982),controls. There
repeal
Ordinance
summary of an initiative
governor’s
tenant
92-116(S),
January
initially passed
challenged as inaccurate and biased.
was
(Amending Title 5 of the
summary was re-
noting
After
Code).
particular,
In
the un-
impartial,
we
quired to be accurate
request
question:
that the
dersigned
of re-
applicable
standard
announced
92-116(S),which adds “sex-
Should AO
conducting
inquiry,
“In
we will
view:
to the list of
ual orientation”
a deferential standard of review.”
utilize
purpose
em-
classes
made it clear
at 276. In a footnote we
*4
contractors,
ployment municipal
or
re-
not to be one where
that the standard was
main law?
judgment for that
its
the court substituted
YES
NO
[ ]
[ ]
instead,
governor;
the lieutenant
of
the voters of the Munici-
before
summary
governor’s
would be
lieutenant
pality
as a referendum
reasonably
not
con-
upheld unless we could
question.
impartial and
summary was
clude that the
petition,
This
first circulated on Janu-
upon
those at-
“The burden
accurate.
All
must
ary
that
tacking
to demonstrate
days
90
from the date
secured within
ap-
misleading.” Id. We
it is
biased
circulation;
re-
first
and have the
in this case.
Faipeas
plied the burden
signatures,
quired signatures, date
mailing
and
address of the
residence
Concerning
question, this is
the second
signers.
exercise our
upon
of law
which we
an issue
so,
doing
judgment.
In
we
independent
Faipeas contended that the referendum
persua-
is most
“adopt the rule of law that
inaccurate,
inflammatory,
petition was
reason,
poli-
light
precedent,
argued
in
misleading. Additionally, they
sive
question was too abbre-
Ha,
n.
ballot
6
cy.”
v.
Guin
impart
to voters
reasonable
viated
1979).
(Alaska
question.
understanding of the ordinance
order,
Faipeas’
accepted
we
As noted
our
III. DISCUSSION
petition,
the referendum
characterization
stating:
The referendum
which
petition is
of the referendum
The title
group circulated bore the follow
citizens’
prejudicial.
It
potentially
partisan and
ing title:
Repeal
Petition to
reads: “Referendum
”
‘Special Homosexual Ordinance.’
regard
TO REPEAL
REFERENDUM PETITION
the ordinance
opponents of
While
rights to homosexu-
giving special
it as
A “SPECIAL HOMOSEXUAL
als,
merely adding
proponents view it as
ORDINANCE”
to the list of other
sexual orientation
petition read as
print,
smaller
In much
important personal characteristics
follows:
race,
gender, religion,
choices such as
status,
which are
and marital
provisions of Sec-
In accordance with the
public employ-
from discrimination
3.02,
III of the Home Rule
Article
tion
ment.
of Anchor-
Municipality
Charter
¶
at 3.a.2
Munici- Order
age and Section 2.50
no
cerning
question and we made
ballot
point
it unneces-
on this
made
2. Our conclusion
ruling
point.
at 3.c.
argument
Order
Faipeas'
¶
con-
sary
alternative
to reach
not,
any misleading
controversy
tendency,
The true
in this case is
from
whether of
omission,
amplification,
fallacy,
or of
however,
the referendum
whether
partisan
and that it must contain no
color-
the ordinance in a biased and
characterized
ing.”
(quoting
Hall,
Hope
v.
229 Ark.
way.
clearly
It
does so.3 The
partisan
(1958)).
316 S.W.2d
Whether
controlling legal question is whether refer-
requirements apply
these
to a referendum
accurately
do not
endum
Municipality
conducted
of Anchor-
fairly
characterize ordinances which
age
question
is the
we must decide.
propose
repeal
legally accept-
they
are not.
able. We hold
Burgess interpreted
procedure
procedure
initiatives under state law. This
petitions in
Misleading referendum
elec-
differs from the initiative and referendum
by the State of Alaska are
tions conducted
procedures prescribed by
clearly
permitted.
in Burgess
We held
Charter and Ordinance. Under state law
Governor, 654 P.2d
v. Alaska Lieutenant
application proposing
the initial
an initia-
(Alaska 1982),
that referendum
tive or referendum
signed by
needs to be
impartial.
tions must be truthful and
In
only
qualified
one hundred
voters. Once
approved
language
that case we
used
application
is filed
lieutenant
Supreme
the Golorado
Court that a
governor,
governor prepares
the lieutenant
*5
fair, concise,
summary must be “a
true and
petition
which must contain “a
impartial statement of the intent of the
subject
of the
petition
matter.”4 The
proposed
summary may
measure. The
not
by
proponents,
circulated
signed
its
and if
by qualified
equaling
voters
at least ten
argument
against
be an
for or
the mea-
percent of those who voted in the last
sure,
likely
prejudice
nor can it
to create
be
election,
general
proposition
the
must be
against
for or
the measure.” Id. at 275
placed on the
summary pre-
ballot.5 The
(quoting In Re Second Initiated Constitu-
pared by
governor
the lieutenant
re-
Respecting
Rights
tional Amendment
the
quired by
“impartial.”
statute to be
AS
Uninterrupted
by
the Public to
Service
of
15.45.090, AS 15.45.320.
Employees
Public
Colo.
of
(1980)).
ap-
We also
contrast,
In
governing peti-
statute
proved
Supreme
the Arkansas
Court’s
municipality
tions of a home rule
states
petition summary
statement that a
should
only
pro-
home rule charter shall
“[a]
“complete enough
convey
intelligi-
be
to
an
procedures
vide
for initiative and referen-
scope
import
idea of the
ble
and
of the
29.10.030(a).
dum.”
specif-
AS
There is no
law,
proposed
ought
requirement
addition,
and that it
to
free
ic
impartiality.
be
of
In
opposition
petition
practices chapter
Anchorage equal rights
in its
3.Neither
for
of the
rehearing
petition
review nor on its
did the
prohibits any
ordinance. The amendment
in-
municipality
petition
contend that the
was not
terpretation requiring
qualified
"that the less
be
by partisanship.
petition
flawed
also inac-
preferred
qualified
over the better
of
because
ordinance,
curately represents the
as the ordi-
race, color,
sex,
religion,
origin,
national
mari-
homosexuals,
apply only
nance does not
to
but
status,
prohibi-
tal
or sexual orientation." This
prohibits discrimination based on sexual orien-
newly
by
tion was
added
the ordinance as to all
tation, whether homosexual or heterosexual.
discrimination,
merely
forbidden bases for
not
(The Equal Employment Opportunities Commis-
92-116(S)
2(F).
sexual orientation.
§
AO
promotion
sion has
that a claim that
was
ruled
denied because claimant was a heterosexual
Const,
XI,
4.
Alaska
art.
cognizable
rather than a homosexual was not
preference
federal
under
law because sexual
require-
5. Id. The constitution also contains a
not a
characteristic.
Jordan v.
See
signers
(N.D.III.).)
that the
be
in at
Brady,
ment
must
"resident
petition
ation of an
for all
concerning
citizens
being
what
public support
when there is insufficient
proposed.10
for an initiative. Neither
the state nor
Our state constitution contains a number
opponents
proposed
of a
bill should
safeguards
of formal
designed
which are
to
spend
large
to
sums of
legislators
fully
ensure that
are
informed
money required
proposed
when a
bill
and have
opportunity
had an
to debate and
put on the
if there is
ballot
not sufficient
meaning
deliberate on the
of a
public support
for the initiative.9
safeguards
law.11 These
“designed
are
If a
were to mischaracterize
engender
responsible
legislative process
designed
a manner
bring
Plumley v.
worthy
public trust,”
general
ordinance,
opposition
about
to the
Hale,
(Alaska 1979);
594 P.2d
are
signature
requirement
could be too meant
legislature
“ensure
readily overcome and the intended screen-
North Slope
knows
passing,”
what
ing
requirement
function of the
would be Borough v.
Corp.,
SOHIO Petroleum
thwarted.
(Alaska 1978);
n. 11
and are
meant “to ensure
prior
pas-
deliberation
Moreover,
under
Plumley,
sage_”
594 P.2d at
Municipality
Anchorage’s system,
500.12
as
Safeguards
system
purpose
well as under
with a similar
followed in
are con-
state
elections,
are formal documents which
tained in the
Charter
part
lawmaking
process.
They
relating
passage
by
of ordinances
should be a source of accurate information
municipal assembly.13
Note,
Fountaine,
Cynthia
II,
Questioning
L.
provides:
Article
14§
Desirability
Constitutionality
Legislating
legislature
procedure
shall establish the
Initiative,
(1988).
61 S.Cal.L.Rev.
for enactment of
may
bills into law. No bill
passed
become law unless it has
three read-
importance
10. The
of an accurate and informa-
ings
separate
days,
each house on three
tive
was also noted
the Montana
except
any
may
bill
be advanced from
Supreme Court:
reading
second
day by
to third
on the same
majority
qualified
concurrence of
electors are
three-fourths of
so
the house
managing
considering
much interested
may
their own
it.
af-
No bill
become law with-
carefully
fairs that
have no time
to con-
out an
majority
affirmative vote of a
*7
affecting
general public.
sider measures
the
membership
yeas
of each house. The
and
great
undoubtedly
A
number of voters
have a
nays
passage
on final
shall be entered in the
superficial knowledge
proposed
laws to be
journal.
upon,
newspaper
voted
which is derived from
comments or from conversation with their
12. We have held that at least one of these safe-
may safely
associates. We think the assertion
rule,
guards,
single subject
applies
the
to state
only
persons
be ventured that it is
the few
Alaska,
initiatives. Yute
McAlpine,
Air
Inc. v.
earnestly
zealously oppose
who
favor or
(Alaska 1985).
A basic ADDITIONAL I. FACTS properly bal- ing decisions—ones which those involved and the interests of ance January From December 1992 informed results —is an create desirable Anchorage Assembly debated the mer- need to The decision makers electorate. sepa- of ordinance 92-116. On four its AO understanding of thorough a both have occasions, Assembly rate conducted in make a issue order to sides hearings public to enable citizens to ex- reasoned, under- rational decision. Such press against their views both standing only complete and comes from citizens, repre- total of 195 ordinance. information. accurate issue, spoke senting both sides of the at the Fountaine, pub- at supra hearings. hearings note 738. were broad- lawmaking requires lic interest in informed cast on local cable television. The Assem- petitions initiative bly passed January the ordinance on accuracy mayor meet minimum standards days vetoed three la- should be ter, fairness. main concern Assembly and the overrode the veto on “[0]ur enactments, ini- (legislative that all matters January 19. proposed resolu- tiative and even Assembly Shortly after the overrode the tions) and hon- presented clearly should be group began circulating of citizens a veto Air estly people of Alaska." Yute seeking referendum on ordi-
Alaska, McAlpine, Inc. v. sponsors also nance. (Alaska 1985) J., (Moore, dissenting.) copy local necessary guard end To this it is “[t]o notes, newspaper. As mas- by petition-signers against inadvertence my opinion, terful understatement “[t]he discourage voters and to stealth than the minimum group obtained more promoters....” initiative drafters and signatures required.” number of Follow- at 1189. ing the Clerk’s certification challenged petition, Faipeas the clerk’s IV. CONCLUSION superior court. decision reasons, For conclud the above we Faipeas showing made a ed that had II. DISCUSSION probably would succeed on the merits circu of their contention that The court the referendum from strikes applicable in this failed to meet lated case requirements applica- reading the ballot *8 legal requirements. procedures into the to state referendum ble it is used 2.56.030
word “describe” as I find Anchorage Code. J., COMPTON, participating. interpretation strained and its the court’s unpersuasive. MOORE, Justice, analysis dissenting. Chief begins by focusing court on state from court’s respectfully I dissent procedures, noting that state opinion improperly imposes it state referendum because Anchorage petitions “must be truthful and requirements on referendum referendum Opinion require- procedure. By impartial.” at 1218. This home-rule referendum ballot, given entirely I that AS striking the referendum from the ment is reasonable 20,000 5,672 signatures group group the Mu- turned into 1. The needed to obtain place petition its on the ballot. Within a to nicipal Clerk’s office. overridden, mayor's after veto month was tioning 15.45.320 mandates that state referendum citizens “necessarily implying]” “impartial summary petition contain an requirements state into the An- subject-matter.” chorage The court then rea- procedure. The court’s analogy imposes sons that because state a re- understates the fundamental differences quirement impartiality on its own offi- between the state and referen- cers, imposed it processes. should also be on the citi- dum It ignores also the fact municipality zens of a home-rule as a mat- deliberately the state opted not to public policy. Opinion ter of at impose 1220-1221. requirements those on only acceptable descrip- referendum municipalities. other home-rule tion, view, in the court’s is one devoid of scheme, Under the state propose citizens any partisan sentiment. a by filing application referendum an a construction,
To bolster this the court filing fee with gover- $100 the lieutenant language relies on drawn from a Montana nor. AS 15.45.260. Within seven calendar case, Stores, Sawyer Mitchell, Inc. v. days, governor the lieutenant must review (1936), Mont. 62 P.2d in which application certify and either it or noti- Supreme the Montana Court fy construed a sponsors grounds of the requiring statute a ballot to leg- include a for denial. AS 15.45.300. The three “descriptive end of the proposed.” grounds measure for denial do not include par- Opinion See at 1219. The tiality court’s reliance petition. application If the misplaced. certified, on this case is The court fails governor lieutenant pre- must distinguish between the peti- pare function of within seven days. calendar tions and requirement ballots. The that AS 15.45.320. It is here that the state’s Sawyer quite properly imposed requirement impartiality comes in. The on place petitions. ballots has no on A state-prepared contain, must paper upon ballot is the which each voter among things, impartial other an summary gives expression to his or her choice. Id. of the subject matter of the act. biased, misleading, or inaccurate ballot procedure state referendum is direct- voting process. undermines the pe- Id. A ly analogous procedure legisla- tition, however, is the vehicle which ture mandated for non-home rule munici- bring citizens issue into the are- palities.2 However, legislature ex- end, na. It is the beginning, not the pressly declined impose require- those political debate. ments on and other home-rule
Equally strained attempt is the court’s municipalities. Instead, gave it them the justify imposing requirement right on develop procedures.3 their own municipalities, In non-home rule municipal citizens seek- explicitly code in stated ing a application, referendum must file an provisions apply it intended to to home signed by people, at least ten municipalities: rule certify clerk. AS 29.26.110. The clerk must gathered together Home rule limitations are application within two weeks if the place and listed in one in Article 2 of the application proper clerk determines the is in the (Sec. 29.13.100) chapter to 29.- [renumbered form. AS 29.26.110. Within two weeks of certi- listing explicit 10.200 1985]. makes fication, prepare the clerk must con- legislative provisions intent as to which taining of the ordinance or resolu- apply code municipalities, to home rule as tion to be referred. AS 29.26.120. This prohibitions acting pro- otherwise than as signed by percent must be of the votes cast in *9 vided, Additionally, and which do not. the regular municipality the last election if the has provisions specific 7,500 themselves contain refer- persons, percent fewer than or 15 making applicable ence them to home rule regular votes cast in the last election if the municipalities. listing specific 7,500 The and refer- municipality 29.26.130(b). persons has or more. AS provisions ences in the are intended to co- (As provisions incide. additional of law are Legislature 3. The Alaska subsequent left home-rule munici- enacted to the time the code takes palities effect, provisions free to choose their own referendum apply which are intended to procedures. legislature When the general revised the to home rule as well as to law munici-
1223
may
fine the manner in which their citizens
Municipality Anchorage exercised
The
of
powers
the
of
responsibility
the
of
exercise
initiative and refer
right
that
and
Homes,
directly
hands
in the
of
endum.
Leach &
Inc.
preparing petitions
See
Arnold
16,
Boulder,
Colo.App.
the
Munici-
32
City
its citizens. Under
v.
507
of
Code,
peti-
476,
(1973);
and referendum
477
pal
initiative
P.2d
see
Burks v.
also
61,
142
Lafayette,
tions must:
tical tables are the undersigned qualified voters of [W]e staffed enthusiastic advocates who dis- Municipality Anchorage of submit positions seminate their banners and this Referendum Calling Petition slogans. In partisanship, the face of such I repeal Anchorage of Ordinance 92- highly neutrally find it that a doubtful 116(S), 12, initially passed January 1993 petition worded title have would measur- (Amending Title 5 of the Anchorage Mu- ably petition affected the drive itself.5 Code). nicipal particular, In the under- signed request question: that the addition, In it must remembered be “sex-, 92-116(S), seeking this case involved a referendum Should AO which adds repeal ordinance, existing an rather than ual orientation” to the list of proposing legislation. an initiative new As purpose public classes for the of em- observed, Oregon Supreme Court has ployment contractors, or re- significant. the distinction is main law? YES NO [ ] [ ] purpose for referen- before the of voters the Munici- dum identify particular is to enact- pality as a referendum legislative assembly ment question. petitioners desire to have referred wording petition’s biased in the title people question to the identity, —a negate does not the fact that the legislation. There is a distinction in itself identified the in question. ordinance regard between the referendum and was, most, The title surplusage. at initiative, in legislation which latter initiated and the whole matter must be adopted This court has a deferential stan- just formulated as it is to be submitted dard of review analyzing when the suffi- people, to the in while the referendum it ciency of initiative and peti- only question approval Burgess tions. See v. Alaska Lieutenant disapproval by people of what the Governor, 273, (Alaska 1982). 654 P.2d 276 Legislature already has enacted into law. In reviewing an prior initiative to submis- Benson, 277, 579, Palmer v. 50 Or. 91 P. people, sion to the requirements (1907); see also Columbia River Salm- the constitutional statutory provi- on & Tuna Appling, Packers Ass’n v. pertaining sions to the use of initiatives 71, (1962) Or. (reiterating 375 P.2d should liberally construed so that “the functional differences between initiatives people permitted to vote and ex- [are] referendums). press their will on the legisla- tion ... all description requirement doubts as to technical defi- of the An- chorage Municipal ciencies or comply Code in the failure to clearly designed procedure context is exact letter identify will be resolved challenged. accomplishment favor of the of that just case did that: purpose.” 5. Some commentators have Assembly cast doubt on the when the held the first language petitions notion that and ballots has ordinance, hearing concerning the until Febru- a measurable effect on election results. See 16, 1993, ary day before the were Horvat, Oregon Robert "The Initiative Process: Clerk, given to the Appraisal" Oregon A Critical L.Rev. Daily page News had at least seven articles on (1984). one; page paper's 11 articles on the first Furthermore, the citizens of were section; editor; Metro 37 letters to the and 16 unusually knowledgeable particular about this referring editorials and other articles Assembly ordinance. The considered the issue twenty ordinance. Because over thousand vot- public hearings, for weeks. It held four at case, signed only ers 5,672 in this while expressed which 195 citizens their views. The required, impartially were worded hearings were broadcast on local cable televi- certainly garnered tion would have almost Additionally, sion. the ordinance received ex- coverage place tensive number of the local the ref- electronic media press. example, For from December erendum on the ballot. *11 Alaska, McAlpine, v. Inc. Yute Air 1985). (Alaska precedent disregarded this
has petition. find defect stretched unrea- legislation has judicial This act of sonably the citizens deprived issue. vote opportunity GROW, Appellant, D. Monte Cross-Appellee,
v. RUGGLES, Appellee, Carolyn F. Cross-Appellant. S-4994, 5035. Nos. of Alaska. Supreme Court 15, 1993. Oct.