*1 CABARET, HOTEL, INTERIOR & RETAILERS
RESTAURANT
ASSOCIATION, Appellant, NORTH STAR
FAIRBANKS
BOROUGH, Appellee.
No. S-11481. of Alaska.
Supreme Court
May
theories illegal the tax would be and the question misleading. ballot was borough The changed proposed then the tax and the ballot question approved and voters proposal. the complaint ICHRRA amended its and chal- lenged the enacted tax. Does the tax’s ex- emption for two within borough cities “areawide,” mean that the tax is not as AS requires? 29.35.150 Is the tax tax, in policy violation of the em- 04.21.010(c)(2), bodied in AS which is intend- prevent ed to discriminatory taxation of alco- beverage holic sales? And is ICHRRA the prevailing party, given changes the bor- ough submitting proposal made before the voters?
Despite exemptions, we hold that the tax is areawide. We also hold that the tax against does not discriminate sales of alcohol- beverages, ic because the also im- poses a sales tax on Finally, hotel rooms. we hold that it was not an abuse of discretion to find that ICHRRA prevailing was not the party. We affirm judgment therefore below.
II. AND FACTS PROCEEDINGS Borough Fairbanks North Star As- sembly July 2003 enacted Ordinance 2003-46, proposed which a referendum im- posing a sales tax on sales of alcoholic bever- ages. proposed question ballot asked: Borough “Shall Fairbanks North Star levy an areawide 5% tax on the retail sale of with limited Aschenbrenner, Peter J. Asehenbrenner beverage for alcoholic sales taxed Offices, Inc., Fairbanks, Appellant. Law of Fairbanks and the of North Miller, Joseph Borough W. Assistant At- Pole, thereby reducing property tax dol- torney, Broker, and A. Borough René Attor- lar for dollar?” Ordinance 2003-46 con- Fairbanks, ney, Appellee. implementing tained an ordinance that would become effective voters BRYNER, Justice, Before: Chief posed tax. MATTHEWS, EASTAUGH, Justices. August prevent
ICHRRA filed suit on 8 to OPINION proposed question being placed from the October 7 election ballot. al- EASTAUGH, Justice. leged question that the misleading ballot was I. INTRODUCTION and that Ordinance 2003-46 an in- Cabaret, Hotel, Interior August Restaurant & Re- superior valid tax. On 22 the court (ICHRRA) tailers Association sued Fair- preliminary denied ICHRRA’s motion for a challenge injunction banks North Star prevent Ordinance 2003-46’s proposed sales tax question on alcoholic appearing on the ballot. The to, light the facts most favorable assembly then enacted Ordinance view against summary judgment
2003-52,
replaced
2003-46.
whom
which
granted.4
interpreting statutes
Ordinance was
When
question, as stated
The ballot
sliding-scale
under
2003-52,
approach,
North we use a
“Shall the Fairbanks
asked:
*3
is,
statutory language
the
tax on the
the clearer
the
levy an areawide 5%
Borough
Star
convincing
history must
with limited more
alcoholic
sale of
retail
justify
interpretation.5
give
to
another
We
beverage sales
to
for alcoholic
powers
by
construction ...
to the
the
of Fairbanks
“liberal
extent taxed
the
government
City North
voters
local
units.”6
the
Pole?”
and
this
tax.
review
of discretion
for abuse
complaint, al-
then
its
amended
ICHRRA
superior
prevailing
court’s
determina
law on the
leging that the tax violates state
awarding attorney’s fees.7
tion when
Pre
“areawide,”
tax is
as AS
theories
vailing party
ordinarily
determinations will
discriminatory
requires,
is a
29.35.150
and
they
manifestly
are
be overturned
beverages, in violation
tax on alcoholic
sales
unreasonable.8
superior court
of AS
borough.
summary judgment to the
granted
by
B. The Sales Tax Authorized
Ordi-
public
was a
found that
The court
ICHRRA
nance
Is “Areawide” Within
not liable
litigant and was therefore
interest
Meaning
of AS 29.35.150.
fees,
attorney’s
also
borough for
but
requires
Alaska
Statute 29.35.150
prevailing party
award ICHRRA
declined to
taxing power
borough
be exercised on an
theory.
catalyst
under
attorney’s fees
by
basis.9
defined
“areawide”
“Areawide” is
superior court’s
appeals the
29.71.800(1)
“throughout
to
AS
mean
bor
summary
judgment in favor of
grant of
ough, both inside
outside all cities
and
ruling
was not
borough and its
that ICHRRA
borough.”
prevailing party.1
29.45.650(a)
dispute arose,
this
When
provided that
III. DISCUSSION
04.21.010(c),
Except
provided
as
in AS
A.
Review
Standard
29.45.750,
(f), (h), (i),
and in
and
(j)
section,
“Summary judgment
appropriate
borough may levy
and collect a
rents,
genuine
any
sales,
is no
issue as to
tax on
and on
where ‘there
sales
services
... any party
provided
borough.
is entitled to
in the
The sales
material fact
”2
judgment
may apply
any
a matter
law.’ We review
to
all of these
as
or
sources.
ordinance.[
summary
Exemptions may
grants
judgment
granted
de novo.3 We
10]
of,
all factual inferences in favor
draw
be”) (internal
borough
history
quotation
separate appeal
has filed a
1. The
islative
must
omitted).
superior
ruling
court's
that ICHRRA is a
marks
litigant.
Fairbanks N. Star
interest
See
Const,
X, §
6. Alaska
art.
Cabaret, Hotel,
Borough v. Interior
& Retail
Rest.
Ass’n, Supreme
Case No. S-11612.
ers
Court
Co.,
7. Cont’l Ins. Co.
Fid. & Guar.
U.S.
552
1122,
(Alaska 1976), disapproved
P.2d
1125
Co.,
Ins.
v. Umialik
8 P.3d
1137
West
Steiner,
grounds by
other
Farnsworth v.
P.2d
56(c)).
2000)
(Alaska
(quoting Alaska R. Civ. P.
(Alaska 1981).
n. 5
Millett,
Erikson,
8. Jerue v.
(Alas
3. Rockstad v.
2005).
ka
boroughs
requires
9. AS 29.35.150
“exercise
speci-
specified
and in the manner
4. Id.
fied in AS 29.35.150—29.35.180 on an areawide
29.35.170(a)
boroughs
basis.”
authorizes
State,
Admin.,
Bartley
Dep’t
Ret.
Teachers'
"assess and collect” sales taxes.
Bd.,
2005)
(Alaska
(noting
sliding-scale approach
that "under Alaska's
10. In 2005
amended AS
29.45.650(a)
statutory interpretation,
provide
borough may
plainer
"[a]
the
contrary leg-
statute,
convincing
wholly
partially exempt
the more
or
a source from bor-
borough
“[a]
sales tax
[they]
“to the extent that
cumulative,
incorporating,
by any
municipality
reduced
taxed
other
within
sliding to
borough”
take account of the rate of
exempts
wholesale sales
taxation,”
“by a
and that Ordinance 2003-52’s
bona fide alcoholic beverage distribu-
exemption
beverage
of alcoholic
ter.”
sales to the
extent
are taxed
cities within the
29.45.650(a)
The words of AS
indicate that
illegal
renders
as not “area-
boroughs
power
have
exemp-
broad
to create
wide.”
tions.
second
sentence
29.71.800(14)
29.45.650(a)
Alaska Statute
defines “no-
authorizes boroughs
apply
“throughout
nareawide” to mean:
the area of
sales tax “to
or all” of the “sources”
all
borough.”
outside
cities
listed in the first sentence. The second sen-
*4
borough
Because a
attempt
could
to exercise
sales, rents,
tence therefore allows taxes on
some,
all,
powers
its
in
but not
cities
legislature’s
within
and services. The
“any
use of
borough,
the terms “areawide” and “no- or” in addition to “all” indicates that bor-
29.71.800(1)
by
nareawide”
oughs
as defined AS
may
and
determining
be selective in
which
(14)
mutually
is,
are not
exclusive. That
interpret
“sources” to tax.13 We
statutes “so
every
borough power
exercise of
part
that is not
that no
inoperative
will
superflu-
be
or
ous,
necessarily
void,
“areawide” is
“nonareawide.”
insignificant.”14
or
principle
We therefore consider
suggests
whether the
that
the third sentence in AS
29.45.650(a)
on alcoholic
is “not area-
(“Exemptions may
granted by
be
ordinance.”)
wide.”
is intended to authorize bor-
oughs
grant exemptions
on some basis
ICHRRA
that the tax is not area-
“source,”
other than
because the second sen-
wide because Ordinance 2003-52 defined the
tence in
gives boroughs
that subsection
au-
exemptions by geography.
ICHRRA simi-
thority
selectively,
to tax sources
without
larly argues
juxtaposition
that
reference to the third sentence.15 Further-
“levy”
terms
and
in
“collect”
various stat-
29.45.650(a)
more,
purport
AS
does not
prohibits
utes
borough
from collecting
boroughs’ powers
limit
grant exemptions,
in
parts
“sales taxes
some
borough
but
quick
“[w]e should not be
imply
limita-
arguments
not others.” These
are unavail-
taxing authority
tions on the
municipali-
of a
ing.
implement-
Ordinance 2003-52 and the
ty
expressed.”16
where none are
ing
exemptions
ordinance define
in terms of
any applicable city
29.45.650(c)
by
sales taxes rather than
We also note that AS
man-
geography.
ques-
Ordinance 2003-52’s
exemption
ballot
dates an
use taxes
borough
from
tion asked whether
exempted
sales should be
person
paid
to the extent “the
has
a sales tax
“to
by
City
the extent taxed
of Fairbanks
on the source” when the sales tax was “levied
City
implement-
of North Pole.”
any taxing jurisdiction
in
whether inside or
ing
exempts
Therefore,
ordinance likewise
retail sales of outside
borough
the state.”
if a
ough
by
396,
sales tax that
City
Gangl,
is taxed
in that
13. See
Homer v.
30,
(Alaska
1982) (“If
§
under AS 29.45.700.” See
thing
ch.
'all' means the same
as
all,'
‘any
'any
SLA 2005. The statute as amended would thus
then the words
or’ ... are
explicitly
proposed by
superfluous.")
allow
(interpreting predecessor
the tax
Ordinance
to AS
against
29.45.650(a)).
objection
2003-52 as
an areawide
such
as ICHRRA raises here. The amendment to sub-
.650(a)
August
section
became effective on
Mary’s
Mary’s
Corp.,
St.
v. St.
Native
(Alaska
2005. Ch.
SLA 2005. The
2000) (internal
version of AS
quota-
29.45.650(a) quoted
omitted).
in the text therefore controls
tion marks
discussion,
this case. For ease of
we will refer to
quoted
applicable
the version
in
text
here
("We
Gangl,
previ-
15. See
levies already may has negative implication of this statement be city within but a the sale percent by sales tax on exemptions a five approved levied that when are 29.45.650(c)exempts the commodity, AS vote, they may by repealed be mere entirety. Yet borough’s use tax its the statement St. ordinance. borough’s use taxes that the would not mean quoted suggest Mary’s above does not Here, exemp- the tax’s not areawide. may by public not be operate the manner described tions vote, part repealing exemptions or that 29.45.650(e). conclude that We therefore separation the tax scheme would violate tax is not not mean that the exemptions do principles. areawide. 29.45.650(a) Moreover, provides 2003-52 argues that Ordinance may “[e]xemptions granted ordinance.” lawmakers,” tied the hands the local “has added.) permis- (Emphasis The use of the holding of our alleged violation “may” suggests term that ordinances are sive Corp.17 Mary’s Mary’s Native v. St. St. exemptions may means not the sole correctly points the ex- out not read granted.19 We therefore do may have emptions 29.45.650(a) adoption precluding as either palatable to some the sales more made *5 through referendum a tax with ex- of sales voters; borough argues that vot- it because repeal of emptions mandating that an exemp- the tax and the ers both adopted exemption in this manner would re- tions, exemp- or reduction in the repeal of approval.20 separation quire voter see no a new or an increase tions would be tax problem powers of with an areawide levy. reasons that the the rate of ICHRRA voter-approved exemptions that includes re- exemp- assembly repeal the therefore cannot approval repeal. quire voter This, approval. ICHRRA tions without voter separation of argues, is a violation of the do we that the tax violates Nor conclude authority powers budget it separation powers principles by delegating because takes of it in the away assembly places authority taxing to cities. ICHRRA cor- argues voters. also hands of the ICHRRA rectly points out that under the current ex- separation of 2003-52 violates portion of the emptions, borough’s delegates taxing power principles borough will decreased within the cities by “committing] city governments to beverages. sales raise their taxes on alcoholic City of Fair- Assembly to honor both the city implies therefore councils ICHRRA power Pole’s and the of North bankses] may increase their taxes on alcoholic sales Borough’s share.” to raise taxes out beverages borough of taxation level of at original.) (Emphasis in political cost increase no because the would by paid not affect the total tax constituents. Mary’s a we concluded that “when St. boroughs power have to craft ex- grants exemption by broad government local exemptions subjected emptions,21 and whether exemption ordinance and the is not vote, may exemption hinge city repeal application to a it should of Mary’s Corp., by Mary’s general v. St. Native exercised means of ordinances.” St. 2000). added.) (Alaska (Emphasis held that P.3d 1002 Whitson Anchorage posed Municipal amendment to the approval required Charter that would voter have Mary's, 9 at 18. St. P.3d 1007-08. any property new tax or an increase levy rate of the command AS "contradict[ed] State, Safety, Dep’t 19. See Kiokun Pub. by general 29.53.170[] that taxes shall be levied (Alaska 2003) (holding that statute Whitson, P.2d at 761. ordinance.” “may" stating Department organize search permissive person is lost is and does not when attempted assembly 20. Because the has not search). Municipali- require But Whitson v. cf. exemptions, repeal these we need not decide (Alaska 1980), ty Anchorage, 608 P.2d ap- it voter here whether could do so without 29.53.170, interpreting has former proval. 74, 88, repealed. § since been See ch. SLA 1985. 29.53.170(a) provided Former AS that the assem- bly's supra accompanying power impose property *6 either Statute re- the Alaska quires only single Constitution or a tax policy,” “sound sales on a borough suggests. source other than alcoholic bever- ages. passing
ICHRRA also
that the
regime
“impossible
tax
interpreting
creates
When
statutes we use a
dealing
administrative burden of
sliding-scale approach,
with two tax
under which the
regimes on the same
is,
transaction with two tax
statutory language
clearer the
the more
collecting authorities.”
convincing legislative history
Fairbanks North
jus
must
tobe
(FNSBO)
Star
tify
interpretation.24
another
The text of AS
3.59.040(A)(3)
04.21.010(c)(2)
requires merchants within cit-
clearly
does
indicate how
percent
ies to collect a
many
five
sales tax on all
other sources must be taxed before a
sales of alcoholic beverage, and remit
beverages
tax on alcoholic
permitted.
borough’s portion
legislature’s
to the
and the
plural
use of the
term “sales
city’s portion,
any,
if
city.
suggests
requirement
This is not
taxes”
a
that more
on its face an “impossible administrative bur-
than one other source must be taxed before
den,”
04.21.010(c)(2)
attempted
ICHRRA has not
to AS
allows a tax on sales of
showing necessary
make the
to
legislative history
demonstrate
alcohol. But the
indicates
04.21.010(c)(2)
suggested
burdensomeness. Nor has it
to us
requires
AS
one
any
invalidating
basis in Alaska law for
a tax
other source be taxed. We discussed this
because of the
legislative history
Lagos
administrative burden the tax
v.
& Bor
places on merchants.
ough Sitka.25
of
Indeed,
suit,
State,
Admin.,
legisla-
Bartley
Dep't
after ICHRRA filed
Teachers' Ret.
of
29.45.650(a)
boroughs
Bd.,
ture amended
to allow
application
to craft
based on the
supra
taxes. See
note 10.
Sitka,
Lagos City Borough
23. See Liberati v. Bristol taxing hibits sales of alcoholic at rate (Alaska 1978) ("We should not be commodities). higher than other quick imply taxing authority limitations on the municipality expressed.”). of a where none are under- inadvertently Senator Kerttula advised his legislature delet- proposed provision governing standing that under the from the statute then
ed
now
imposed
municipality
similar
a
a
taxation
tax could
04.21.010(c)(2).26
things
found
more
were taxed. One com-
two or
however,
this mistake
and enacted AS
modity,
realized
cannot be selected for
04.21.010(c)(2)in 1985.27
Eliason concurred
taxation. Senator
understanding, noting that
foregoing
Eliason,
legisla-
of the 1985
one
Senator
attempts
zeroing
the amendment
avoid
“[ujnder
lan-
sponsors, stated that
this
tion’s
industry
specific
specific
one
for a
on
they
guage,
can’t discriminate between
no
tax.31
clothing
any
com-
alcohol or food or
other
modity
market....
[T]he
sold
that’s
Moreover,
supports
our
the con-
case law
legislation is to treat
them all
intent of the
imposed
single
a
clusion that
sales tax
later
equally.”28
Eliason
stated
Senator
requirements
other
of AS
source satisfies the
placing
only limitations we’re
on local
[t]he
04.21.010(c). In Lagos we
wheth-
considered
they
the fact that
cannot
government
04.21.010(c)
prohibited
er
taxation
specific
sales tax on a
indus-
specific
take a
higher
alcoholic
at a
rate
sales of
you
try.
saying is that if
want
we’re
What
than the rate
sales of other commodi-
you might
else
liquor
to tax
and whatever
legisla-
ties.32
stated in
that “the
We
dictum
tax,
alright.
that’s
we want
want to
prohibit
ture
[AS
]
intended
industry go-
keeping
specific
to—it’s
—
discriminatory
imposition
taxes
sales
ing
point
saying,
going
out and
“We’re
imposed
...
form ... a sales
in the
tax
... They
tax
can
you
and no one else.”
solely
beverages.”33
on the sale
alcoholic
liquor
percent tax on
impose
a ten
statement,
although
controlling
wouldn’t be in violation of
tobacco—that
here,
an understanding
reflects
that AS
read,
provision....
proposition
If the
this
04.21.010(c)(2)only requires a
sales tax on
percent
have a ten
on tobac-
“Shall we
single
borough may
other source before
provi-
under
only?”
co
couldn’t
impose
beverages.
sion.29
here that
tax on a
therefore conclude
interpretation
sup-
Eliason’s
finds
Senator
single
requirements
other source
satisfies
port in
Finance Committee testi-
the Senate
04.21.010(c).
Cook,
mony
affairs
Tamara
*7
leg-
member who drafted the
committee staff
borough’s
2. The
“room tax” satisfies
I
islation.
testified that
read this
“[a]s
Cook
requirement
of
AS
municipality,
language, if a
whether it be a
04.21.010(c)(2).
borough,
imposed
or
fact
sales tax
alcohol,
anything
on
other than
it would be
borough charges an eight percent
free to
also include alcohol within its
then
on hotel
motel
rental
sales tax
room
sales tax structure.”30
Gangl,
Homer
transactions.34
of
minutes,
committee
we
that a
tax”
According
Sena-
held
similar “bed
was
sales
tax.35
tor
shared this view:
relied on the inclusion
the term
Kerttula
of
(citing
(quoting
26.
at 643 n. 3
Senate
30.
at 644 n.
See id.
Finance
Id.
4
Senate Finance
Proceedings,
Proceedings,
May
(testimony
May
(testimony
1985
Comm.
Comm.
Cook)).
Eliason)
Tamara
Senator
Senate Finance Comm.
8,May
(testimony
Proceedings,
of Senator
Minutes,
8,May
31. Senate Finance Comm.
1985.
Ray)).
Lagos,
32.
28. P.2d at Senate Fi- (testi- May Proceedings, nance Comm. 3.58.020(A). 34. FNSBO Eliason)). mony of Senator Gangl, Homer v. Id. (the predecessor money “rents” in 29.53.415 goods AS and transactions involv- 29.45.650(a)) concluding AS that the term ing exchange money for services or the “sales tax” included a tax on “commercial occupancy or property use of in the context sleeping accommodations.”36 29.45.650(a) always AS is not clear.39 For example, the “sale” of an beverage argues room at a bar or restaurant includes a satisfy “service” requirement tax does not 04.21.010(e)(2) component when the “imposed sales taxes be bartender or server prepares on other sales within municipality.” Moreover, and serves the drink. it added.) (Emphasis logical seems conclude that AS only “commodity” may satisfy a tax on a 29.45.650(a)’s this broad characterization of sales requirement. Dictionary Black’s Law de- including taxes as taxes on both rent and property fines “sale” as transfer of or “[t]he help services guide should in determining us price.”37 title Alaska Statute .010(c)(2). whether a tax satisfies subsection 29.45.650(a) municipalities levy authorizes Nor has ICHRRA directed legis- us to sales, rents, a “sales tax' on services.” history persuades lative us that distinc- seemingly This can read distinguishing be sales, rents, among tions and services should among sales taxes on these sources. But 04.21.010(c)(2). be read into AS As noted broadly, more it can eliminating be read as above, Senator Eliason mentioned sales taxes sales, among rents, distinctions and services on various examples commodities as of sales by explicitly characterizing a municipal tax satisfy 04.21.010(c)(2), taxes that would on rents Argu- and services as a “sales tax.” 04.21.010(c)(2)’s emphasized but he ably, that “[t]he limita- use “on other meaningless placing government sales” would be tions we’re if the on local is the did not intend to differentiate sales fact that cannot specific between take a sales tax “sales, rents, taxes on and on specific services” industry. saying What we’re defining type of additional “sales tax” you that if liquor want to tax and whatever required justify a sales tax on alcohol.38 tax, you might else want to alright.”40 that’s According reading, to this a sales tax on a And Tamara Cook’s Senate Finance Commit- “rent” or a “service” could not “en- testimony municipality tee that “if a im- 04.21.010(c)(2). abling” sales tax under AS posed a sales anything tax on other than alcohol, it would be free to then also include persuaded
But we are not
the non-
alcohol within its
sup-
structure”41
principle
discrimination
embodied
ported
interpretation.
requires that
These comments
the other sales
imposed
reflect a
involving
grant municipal-
on a transaction
intent to
property
transfer of
complying
title. The distinction
ities wide discretion in
with AS
involving
between transactions
exchange
Id. at 398.
Proceedings, May
(testimony
Comm.
Eliason))
added).
(emphasis
Senator
Senator
*8
(7th ed.1999).
37. Black’s Law
Dictionary
approximately
Eliason’s comments were made
years
Gangl,
three
after we decided
tent,
issue
we decline
suit,”
“sales,
04.21.010(c)
among
sought
bringing
the
the distinction
the benefit
(2)
by one
rents,
suggested
that there is causal connection “between
...
services”
29.45.650(a).
generating
reading of AS
Given the defendant’s action
relief and
possible
give
party
a “liberal
lawsuit.”46
the
makes this
command to
the
Once
the constitutional
gov-
opposing party may
prima
showing,
of local
facie
the
construction
units,”42
say that
the
that
“lawsuit lacked color-
we cannot
demonstrate
the
ernment
04.21.010(c)
or that
action was
qualifying
tax under AS
able merit
the defendant’s
“commodity.”
wholly gratuitous.”47
on a
imposed
must be
tax is
argues that the room
also
ICHRRA
argues that
the
ICHRRA
because
exempts “[o]p-
it
not an areawide
because
borough before
substituted
the election
Ordi
city of Fair-
within the
erators
located
nance 2003-52 for
2003-46 the
Ordinance
that because
banks.”43 ICHRRA asserts
court
its discretion
refus
superior
abused
tax is invalid as a nonareawide tax
the room
ing
prevailing party.
to declare ICHRRA the
29.35.150,
prohibited by
it cannot serve
superior
court found
ICHRRA had
04.21.010(c)(2).
“enabling” tax
the
under
prevailed
“significant
on a
issue.”
sales tax
alcoholic bever-
But like the
initially challenged
proposed
the
case,
ages
the room tax
at
in this
issue
implementing ordinance contained
Section
subject to
operates throughout
borough,
implementing
3 Ordinance 2003-46.
an
the same transac-
exemption to the extent
would
effective
ordinance
have become
if bor-
of Fairbanks.44
tions are taxed
ough
voters had
the tax as
in Part
For the reasons discussed above
posed
Ordinance 2003-46. Ordinance
III.B,
tax is
within
the room
“areawide”
proposed imple-
did not
2003-52
include
meaning of AS 29.35.150. The
menting
out in Section
ordinance set
3 of
requirement
room tax therefore satisfies
Instead,
2003-46.
Ordinance
Ordinance
04.21.010(c)(2).
Because
borough assembly
called
for the
source,
imposes a valid sales tax on another
“adopt
implementing
ordinance.” We
its
does not
sales tax on alcoholic
say
superior
cannot
court abused its
violate AS
finding
discretion
that ICHRRA was not
despite
significant
successful
issue
Superior
Did
Abuse
D. The
Court
Not
borough’s adoption
change.
of this
by Refusing
Find
Its Discretion
To
Prevailing
ICHRRA Was
also
out that
points
Ordinance
Theory.
Catalyst
Party
Under
question
2003-52 omits from the ballot
Bryant
representation
held that
DeSalvo
sales tax
theory
catalyst
appropriate
can be an
method
on alcoholic
would
“reduc[e]
determining
party
property
status for
prevailing
dollar for dollar.” ICHRRA’s
complaint
attorney’s
purposes
original
catalogues
alleged
fees
when a lawsuit
various
brings
problems
relief in manner other than
with
2003—46’s
about
ballot
prevailing
judgment.45
question,
quoted
formal
To
but does not mention the
establish
theory,
party
catalyst
language.
quoted
Nor
status under the
does the
(1)
it
appear
sup-
must
achieved
ICHRRA’s memorandum in
demonstrate
Const,
X,
imposed by
chapter
§
Otis
and remit the
Alaska
art.
taxes to
*9
borough.
will then remit to
3.58.030(B).
city
portion of
of Fairbanks its
the tax.
43. FNSBO
(Alaska
Bryant,
v.
45. DeSalvo
P.3d
3.58.030(B)(3)
operators
44.
FNSBO
stales
exempt
within the
of Fairbanks are
2002).
except
tax
room
at
46.
Id.
530.
city
imposes
a room tax
[i]f the
Fairbanks
borough’s,
operators
less than the
in the
Id.
Fairbanks shall collect the
room tax
prelimi-
port
prevail-
its unsuccessful motion for
mination that ICHRRA was not
injunction.
to have
nary
ICHRRA seems
ing party
it did not
on a
because
succeed
objected
language
to this
for the first time
significant
“manifestly
was not
issue
unrea-
reply
support
of its
in its
memorandum
sonable,”
unnecessary
it is
so
to remand to
injunction.
preliminary
for a
motion
gather
present any
allow ICHRRA to
the in-
that ICHRRA did not view
indicates
potential
legislative
evidence
motivation.
partic-
or omission
clusion
of these words
ularly important.
IV. CONCLUSION
Moreover, although
certainly op-
judgment
superior
of the
is
court
question
posed specific language of the ballot
therefore AFFIRMED.
periph-
in Ordinance
this issue was
2003—
main
eral to its
contention that the
CARPENETI, Justices,
FABE and
not
violated AS 29.35.150 and AS
participating.
04.21.010(c)(2).
say
We therefore cannot
superior
discretion
that the
court abused its
MATTHEWS, Justice, concurring.
finding that
prevail
ICHRRA did not
on a
difficulty
I
in-
have some
with the court’s
significant
litigation.48
issue
terpretation of AS
In its
State,
recently held in
v.
Halloran
original
required
gov-
form the statute
local
generally
Division
Elections that
it
tax “other
ernments to
sales” when
inappropriate
catalyst theory
to invoke the
I
taxed alcohol sales. would have construed
legislative action
when
moots the lawsuit
to mean
provision
governments
this
that local
provides
sought.49
the relief
courts
Because
needed to tax
sales of a substantial num-
well-positioned
post-litiga-
are not
to divine
satisfy
ber of other commodities
order to
motivation,
legislative
catalyst ap-
tion
requirement.
the “other sales”
The evident
proach
applied only
very
should
when “the
purpose
requirement
prevent
of the
was to
expression
legislative purpose”
clearest
discriminatory
alco-
excessive and
taxation of
present.50
chronology
ICHRRA notes that
abused,
hol
alcohol
sales. Because
is often
ordinarily plays
important
of events
role
causing
problems
societal
numerous
that are
establishing
theory
catalyst
causation for
costly
governments, it
easy
for local
is an
purposes.51 To
connection
establish a causal
logical target for differential taxation. The
[borough’s]
generating
“between
action
“other sales”
aimed to constrain
lawsuit,”52
relief and
ICHRRA therefore
by requiring
taxes on
alcohol
same tax
emphasizes
the enactment of Ordinance
other commodities.1 If
sales of
pre-
while
ICHRRA’s motion for
high
too
rate were
consumers of the
set
injunction
liminary
pending.
was
Because
protests
other commodities would voice their
briefing
appellate
we decided Halloran after
representatives.
this
case,
to their elected
completed in
was
we assume
potentially
could
constraint could
effective
anticipated
not have
need
con-
present
more direct
the sales of number of commodities
evidence of
voting
superior
public
motivation. But the
court’s deter-
sumed
were taxed.2
Millett,
(Alaska
unnecessary to
48. This conclusion renders it
con-
53. Jerue v.
09.60.010(b),
2003).
prohibits
sider whether AS
attorney’s
discrimination in the award of
fees
that we
based on
factors
have used
deter-
Sitka,
Lagos City Borough
status,
litigant
applies
mine
interest
to this
1991),
concluded,
(Alaska
line
we
case.
purpose,
that AS
re-
with this
quires
alcohol sales tax
ex-
that the
rates "not
Elections,
State,
49. Halloran
Div.
imposed upon
of taxation
ceed the rate
other
commodities sales.”
Id.
mostly con-
2. Taxes on commodities or services
comport
would
with
sumed
nonresidents
DeSalvo,
statute,
51. See
The
sales”
“other
necessarily agree
not
with
years later it
reen-
committee and did
accidently
five
was
and
there.
substantially
interpretation
The
offered
The same
the same terms.3
acted in
statute,
respect
Repre-
true
to the House of
statutory interpretation that a
is
with
rule of
statute,
sentatives,
passage
concurred
of
presumed
is
to
which
part
and
of
each
Governor,
statute,
and the
who decided
purpose4
for inter-
serve some useful
Further,
have
not to
it.
those who must
statute as I would
veto
preting the new
statute,
comply
seeking
and
original
legisla-
one.
with the
those
interpreted the
enforcement,
only
charged
that
in a
its
with
history points
tive
different direction.
them,
gives
the act
explains, the staff
notice which the text of
As
of the court
opinion
statute,
gleaned
legis-
new
not
which can be
drafted the
member who
history.
lative
Finance Com-
some
of
Senate
members
it, including
eo-spon-
reviewed
mittee who
however,
court,
given
This
has
considera-
sor,
view that the new statute
expressed the
history.
Indeed,
weight
legislative
we
ble
by taxing just one
complied
could
with
rejected
against
arguments
similar
the use of
commodity.
additional
legislative history
Lagos
v. City & Bor-
concluded,
say
history
ough
we
tempting
It
Sitka.6 There
based
of
Many
proceedings
dispositive.
on the
referred
should
of the criti-
same committee
not be
here,
prohibits
legislative
reliance
dif-
against
cisms
on
leveled
on
history
apply here.5
full
ferential rates of sales taxes
alcohol and
seem to
The
Senate
Lagos,
history
detailed in
at
While Justice Scalia wrote alone in Bank One
joined only
643-44.
and was
Justices Thomas and
concurrence,
Kennedy
of
in his R.L.C.
number
Anchorage
Municipality
See
Sisters Prov-
of
a marked decline in
commentators have noticed
Inc.,
22,
(Alas-
Washington,
628
idence in
29
Supreme
legislative history
use of
Court’s
1981),
grounds
rejected
ka
on other
Alaska
joined
E.g.,
since Justice Scalia
the court.
James
Fairbanks,
Employees
Public
Ass'n
Ditslear,
Brudney
Corey
J.
The Decline and
P.2d 725
Legislative History?
Supreme
Fall
Patterns
Eras,
Burger
Rehnquist
Court
critic,
Reliance in the
Scalia,
frequent
questioned
has
Justice
220,
(2006);
Koby,
Judicature
Michael H.
history
leg-
legislative
accurately
whether
reflects
Supreme
Declining
Legis-
The
Reliance
contends that
Court's
on
islative intent. He
History:
Impact
lative
Justice Scalia's
it is a fiction of Jack-and-the-Beanstalk
Critique,
Legis.
portions
36 Harv. J. on
that more
to assume
than a handful
Tiefer,
(1999).
Reconceptu-
and Members of
who
those Senators
the House
But see Charles
[legislation],
voted
the final version
History
Legislative
Supreme
in the
alization of
it, were,
signed
who
when
Court,
(2000).
and the President
2000 Wis. L.Rev. 205
actions,
drafting
they
aware
took those
of the
Indeed,
voting alignment
in the
recent
describes;
they
Court
evolution that the
and if
suggests
v. Abrams
Rancho Palos Verdes
case
of
that
were,
voting
signing
actions in
that their
for or
may moving
the court
most members of
show that
the final bill
had the same
away
legislative
reliance
from a traditional
suggests
that evolution
"intent"
was in
history.
125 S.Ct.
544 U.S.
of the drafters.
minds
Scalia,
(2005).
L.Ed.2d 316
Justice
the author of
Chicago, N.A. v.
Bank One
Midwest Bank & Trust
court,
opinion
only
looked
Co.,
264, 279,
U.S.
116 S.Ct.
text,
"express
implicit”
statute's
cations,
and its
indi-
J.,
(Scalia,
(1996)
concurring).
L.Ed.2d 635
Jus-
guidance.
interpretative
Id. at 1459.
tice
has also raised notice-based concerns
Scalia
By
Breyer, joined by
Justice
Justices
contrast.
relying
legislative history, remarking
about
O’Connor, Souter,
Ginsburg,
ex-
advocated
"context,
text,”
just
literal
as a
amination of
may
[i]t
well be true that most cases the
guide
Congress'
respect
particu-
"to
intent
proposition
the words of
the United States
Only
lar statute.” Id. at 1462.
Justice Stevens
Large give adequate
Statutes at
Code or the
counseled examination of "all
relevant evi-
fiction,
something
notice to the citizen is
of a
dence,”
including
law;
text and the "struc-
system
required
but
albeit one
statutory
ture of
scheme” but also
necessary
descends
needless farce
fiction
charged
history,
Congressional
public is
when the
even with knowl-
to ascertain
intent. Id. at
(Stevens, J.,
edge
Reports.
concurring
judgment).
of Committee
in the
R.L.C.,
291, 309,
503 U.S.
United States v.
J.,
(1992) (Scalia,
when clear it might appear
can alter what otherwise to be plain meaning statutory language.8 of the interpretation suggested by
Here the
legislative history is not inconsistent with the
language Troublingly, of the statute. it does
go way long nullifying towards the act’s municipalities
effectiveness in that have not necessary impose general
found it
tax. general approach
Based on our legisla- history, specificity
tive of the case,
history in this and the fact that
interpretation supported by history language
consistent with the literal of the
act, concur, hesitantly, I today’s opinion with meaning
as to the I
agree without opinion’s reservation to the points.
resolution of all other
Stanley VASKA, Petitioner, Alaska, Respondent.
STATE of
No. S-11171.
Supreme Court of Alaska. 15,
May (Alaska 1978); Alex, 7. Id. at 643-45. State v. 646 P.2d 208 n. 4 In such cases the typical approach 8. A statement of our is found in legislative history and rules of construction Towsley, Homer Electric Ass'n v. 841 P.2d present compelling must case that the literal (Alaska 1992): meaning language of the of the statute is not Generally, guide the most reliable University what the intended. meaning of a statute is the words of the statute Geistauts, Alaska v. 428 n. 5 construed in accordance with their common (Alaska 1983) ("Where meaning ap- a statute’s Sitka, usage. Lagos City Borough pears unambiguous, clear and (Alaska 1991). However, even asserting meaning a different has a corre- statutory language where the considered alone spondingly heavy demonstrating burden of reasonably seems to leave room meaning, one intent.”); Alex, contrary legislative State v. may legisla- we nonetheless consult (under sliding-scale P.2d at 208 n. 4 Alaska's history statutory tive and the rules of construc- approach statutory tion, interpretation, the more realizing language that sometimes plain seems statute the more clear in the abstract takes aon different meaning convincing contrary legislative Slope when viewed in context. North the evidence of be). Corp., v. Sohio Petroleum intent must notes text. tax “shall be 21. See 15-17 and policy question borough. taxes is for the We therefore conclude that the sales tax expressly Because the has not on alcoholic in Ordi- boroughs’ taxing powers limited pre- nance implemented 2003-52 and in FNSBO type exemption,22 clude this we decline to 3.59.010-.180 “areawide.” nextWe consid- imply such a limit.23 er whether the sales tax on alcoholic bever- 04.21.010(c)(2). ages is valid under AS justification exemptions, As for the borough may asserts that it and the cities C. The Tax Sales Authorized Ordi- transaction; impose “double” taxation on nance 2003-52 Is Not Discrimina- it therefore contends that Ordinance 2003- tory Beverages, Tax on Alcoholic 52 n required. Because we Violation of AS “areawide,” conclude that the tax is we need 04.21.010(c)(2) prohibits consider this contention. But Alaska Statute we observe X, municipalities that article section 1 of the Alaska from imposing Consti- a sales tax on merely tution a purpose pre- announces alcoholic unless “sales taxes are venting “duplication tax-levying juris- imposed on other municipali- sales within the per dictions.” It prohibition ty.” is not a se argues single that “a tax on a Furthermore, “double taxation.” commodity” AS [other] is insufficient under AS 29.45.700(a) specifically contemplates 04.21.010(c)(2) “double impose to allow the by providing taxation” in a “[a] a sales tax on beverages. borough that levies and collects areawide also that even if a sales tax on a may levy sales and use taxes sales and use single may other satisfy transaction taxes on all sources taxed 04.21.010(c)(2), tax on hotel provided boroughs.” the manner “Dou- room transactions is not qualifying tax. ble taxation” appear therefore does not to be expressly proscribed by Alaska