MAE LU GOOD, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.
Court of Appeals No. A-12904
Trial Court No. 3AN-16-08889 CR
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
September 27, 2019
No. 2655
Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
NOTICE
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O P I N I O N
Appeal from the District Court, Third Judicial District, Anchorage, Douglas Kossler, Judge.
Appearances: Deborah Burlinski, Burlinski Law Office, LLC, Anchorage, for the Appellant. Sarah E. Stanley, Assistant Municipal Prosecutor, and Rebecca A. Windt Pearson, Municipal Attorney, Anchorage, for the Appellee.
Under
Then, in 2016, the legislature enacted a third provision of law relevant to this appeal — a provision under Title 29, which is the portion of the state code that governs municipalities.2 Unlike
The question we confront in this appeal is whether this new provision in Title 29 impliedly repealed the statutory carve-out in Title 28 that has historically permitted municipalities to impose harsher impoundments or forfeitures for certain delineated offenses. Because we conclude that the answer is no, we affirm the 30-day impoundment imposed in this case under the Anchorage Municipal Code.
Underlying facts and arguments on appeal
Mae Lu Good pleaded no contest to operating a motor vehicle under the influence under Anchorage Municipal Code (AMC) 09.28.020(A). The penalty provisions for this conviction are set out in AMC 09.28.020(C). Under subsection (C)(5), if the defendant has an interest in the vehicle used in the commission of the offense, but has no prior convictions for operating under the influence or refusal to submit to a breath test, the sentencing court is required to impound the vehicle for 30 days.3 Because Good had an interest in the vehicle, but no prior qualifying convictions, the court ordered her vehicle impounded for 30 days.
Good‘s plea agreement allowed her to challenge the validity of the impoundment requirement. She filed a motion to vacate the impoundment, arguing that the mandatory impoundment requirement was invalidated by
The district court denied Good‘s motion. Good now appeals the district court‘s decision.
On appeal, the parties agree that the municipal crime of operating under the influence is comparable to the state crime of operating under the influence,
Good argues that because state law does not require vehicle impoundment for a first-time operating under the influence conviction, the mandatory vehicle impoundment provision of AMC 09.28.020(C)(5) is a “greater punishment” and is therefore invalidated by
In response, the Municipality argues that the carve-out in Title 28 for municipal impoundments and forfeitures,
(a) Notwithstanding other provisions in this title, a municipality may adopt an ordinance providing for the impoundment or forfeiture of a
(1) motor vehicle, watercraft, or aircraft involved in the commission of an offense under
AS 28.35.030 ,28.35.032 , or an ordinance with elements substantially similar toAS 28.35.030 or28.35.032 . . .(b) An ordinance adopted under (a) of this section may . . . .
(2) be more stringent than or the same as but may not be less stringent than applicable provisions under this title or regulations adopted under this title.
Good does not dispute that, prior to the enactment of
At the time of Good‘s sentencing,
If a municipality prescribes a penalty for a violation of a municipal ordinance, including a violation under (a) of this section, and there is a comparable state offense under AS 11 or AS 28 with elements that are similar to the municipal ordinance, the municipality may not impose a greater punishment than that imposed for a violation of the state law. This subsection applies to home rule and general law municipalities.[6]
By allowing municipalities to adopt ordinances imposing impoundments or forfeitures that are “more stringent than” state impoundments and forfeitures,
Because this appeal presents solely a legal question regarding the interpretation of controlling statutes, we review the trial court‘s decision de novo.7
Why we conclude that the mandatory impoundment requirement of the Anchorage Municipal Code is not rendered invalid by AS 29.25.070(g)
1. Law of implied repeal
Statutes may be repealed by implication. There are two categories of implied repeal:
(1) where provisions in the two acts are in irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one; and (2) if the later act covers the whole subject of the earlier one and is clearly intended as a substitute, it will operate similarly as a repeal of the earlier act.[8]
On appeal, Good relies solely on the first category of implied repeal.
In Alaska, there is no automatic presumption
In Peter v. State, the Alaska Supreme Court stated:
[W]e should not commence with a presumption against implied repeal. We shall look to the purpose indicated by the legislature in passage of an act in our effort to determine whether the new enactment is intended to repeal a prior one. If enforcement of the prior statute is in irreconcilable conflict with such purpose, it will be held to have been impliedly repealed.[11]
Accordingly, we look to the legislative intent behind each of the state statutes to determine whether enforcement of
2. Legislative intent of AS 28.01.015
In enacting
But since 1983, Title 28 has contained an explicit exception to the requirement that municipal ordinances may not be inconsistent with the provisions of Title 28.13 (This exception was originally codified in
In McCormick v. Anchorage, we explained (when interpreting the former statute), that by enacting
In 2002, the legislature repealed
3. Legislative intent of AS 29.25.070(g) and Senate Bill 91
Subsection (g) of
The opening paragraphs of Senator Coghill‘s Sponsor Statement read:
Senate Bill 91 implements proven practices to reduce recidivism, keep Alaskans safe, hold offenders accountable, and control corrections spending. Increased spending on prisons has not brought Alaskans greater public safety: nearly two out of every three inmates who leave prison return to prison within three years. The high rate of recidivism has significantly increased Department of Corrections operating costs to $324 million in FY 2016, and spurred the opening of the Goose Creek Correctional Center, costing the state $240 million in construction funds.[19]
The sponsor statement then provides that the bill will (1) implement evidence-based pretrial practices, (2) focus prison beds on serious and violent offenders, (3) strengthen probation and parole supervision, (4) improve opportunities for successful reentry, and (5) reinvest a portion of the savings from these reforms into evidence-based practices.20
Senate Bill 91 was the product of recommendations issued by the Alaska Criminal Justice Commission.21 The Commission found, “based on prison population data for the preceding decade, that ‘incarceration [was no] more effective at reducing recidivism than non-custodial sanctions’ — that, indeed, for low-level offenders, sending them to prison seemingly increased the rate of recidivism.”22
Senator Coghill‘s sponsor statement, when viewed together with the Commission‘s finding and the plain language of
4. Whether there is an irreconcilable conflict between AS 28.01.015 and AS 29.25.070(g)
In assessing whether there is an irreconcilable conflict between
To make this determination, we assess the totality of the legislative framework within which these statutes are included.27 We interpret the two statutes “in context with other pertinent provisions rather than in isolation, and with a view toward reconciling conflict and producing ‘a harmonious whole.‘”28
As we discussed above, for decades the legislature has precluded municipalities from enacting ordinances that are inconsistent with the state‘s motor vehicle laws under Title 28.29 At the same time, since 1983, the legislature has expressly carved out impoundments and forfeitures from this general uniformity requirement.30
But there is no reason to think that, by adding a uniformity provision to Title 29 and expanding it to include all offenses under Title 11 and Title 28 (but otherwise leaving the more specific Title 28 uniformity provision in place), the legislature intended to repeal the long-standing carve-out in Title 28 for impoundments and forfeitures. Indeed, we have not identified anything in the legislative history of Senate Bill 91 or
The Alaska Supreme Court confronted an analogous situation in Hafling v. Inlandboatmen‘s Union of Pacific.32 In Hafling, the court considered whether the Public Employment Relations Act (PERA), which gave all public employees the right to organize and bargain collectively with their public employers, applied to state ferry system workers.33 This question in turn hinged on whether the enactment of PERA impliedly repealed another statute, enacted nine years earlier, that had specifically authorized the commissioner of public works to engage in collective bargaining with state ferry employees.34 The supreme court declined to find that PERA impliedly repealed the earlier statue but instead construed the statutes in pari materia, concluding that PERA did not undercut the earlier statute but instead provided additional guidelines and procedures for collective bargaining.35
We similarly conclude that, while
This conclusion is consistent with the rule of statutory construction favoring specific provisions over more general provisions. As we have previously stated, “where one statute deals with a subject in general terms and another deals with a part of the same subject in more detail, the two should be harmonized if possible, but if there is any conflict, the more specific statute will prevail.”36 Additionally, continued enforcement of the impoundment and forfeiture carve-out in
For these reasons, we conclude that there is no irreconcilable conflict between the two statutes, and therefore
Conclusion
The judgment of the district court is AFFIRMED.