*1 industry group's proposal. trade ance on Order latter, we will not Even if the invade the Emergency Petition for Review by legislature's province extending plain On consideration of Pebble Limited Part- govern 21.86.065 to non-construction language of AS remedy nership's Emergency Petition for Review .34 The Division's OCIPs August 1, 2011, legislature, not court."35 filed on responses lies with the filed by Borough, George Lake and Peninsula Hobson, Sr., Jacko and Jackie and amici CONCLUSION v. Nunamta curiae Aulukestai and the State We AFFIRM court's decis Alaska, ion.36 It Is ORDERED:
The Petition for Review is DENIED. Entered direction of the court. Appellate Clerk of the Courts Marilyn May /s/ Marilyn May FABE, Justice, PARTNERSHIP, participating. PEBBLE LIMITED act- ing through Partner, its General PEB- WINFREE, Justice, dissenting. CORP., Petitioner, BLE MINES STOWERS, Justice, concurring.
v. WINFREE, Justice, dissenting. LAKE AND PENINSULA BOROUGH and grant I would My for review. Conley, capacity Kate in her official position nothing has to do with the ballot Clerk of the Lake and Peninsula Bor- validity, initiative's which is not before the ough, George G. Jacko and Jackie G. time, court at everything but rather has Hobson, Sr., Respondents. process to do with the and standards for No. S-14404. challenges election ballot and the judicial, including appellate, review. Supreme Court of Alaska. April In 2011 the Clerk of the Lake and Aug. 2011. (the Peninsula Borough) certified (the the "Save Our Salmon" #2 Initiative Aug. Review Denied Initiative) "meet[ing] requirements Alaska law and the Alaska Constitution." (Pebble) Partnership Pebble Limited filed an seeking judicial action review of the CARPENETI, Justice, Before: Chief Clerk's Initiative certification. Pebble al- WINFREE, STOWERS, leged CHRISTEN and Clerk erred in certifying Justices. the Initiative met constitutional Language, legislature 34. See Alaskans a Common Inc. something very intended to enact dif- Krite, (Alaska2007)(quoting 170P.3d enact.") (citations ferent from that which it did 111) Campbell, (noting separa- 536 P.2d at omitted). " powers 'prohibits tion of this court en- acting legislation redrafting defective stat- Cabaret, Hotel, 35. See Interior &Rest. Retailers "); State, utes' Gottschalk v. Ass'n v. N. Fairbanks Star (Alaska 1978) (declining to save overbroad stat- (Alaska 2006) (observing legislature doing ute stepping "because in so we would be mistakenly statutory language, deleted realized interpretation engaging the line of AmJurZ2p error, it). language and enacted new legislation"); to correct see also 73 Statutes (2010) ("Generally, § 121 courts will under- legislative take correction of mistakes in statutes of our decision we decline to address notwithstanding the fact that the court Alyeska's cross-appeal. convinced extraneous that the circumstances
599
initiatives or refer-
palities
permitting
sought an order
and
statutory requirements
prohibited by
purpose
its
for a
precluding
and
enda "to be used
decertifying the Initiative
8
XI, §
ballot.
7 of the state constitution."
an election
placement
[article]
on
proce
appears that
the
had no
It
challenges to ballot
of
review
"Preelection
initiatives or referenda
place
in
dures
ascertaining 'whether
to
is limited
initiatives
Initiative,
the
but
prior
dispute
to the
particular
complies with the
initiative]
{the
Borough passed
an
ordinance
regulating
statutory provisions
and
1
incorporate
to
AS
amending its charter
Accordingly, pre-election
iatives.'
init
29.26.100-.190,
inapplicable
to
otherwise
subject
limited "to whether
review is
municipalities,
procedures.
as its
home rule
constitutionally
is
initiative]
an
[of
matter
29.26.100-110(a)'sap
2
disputes
party
No
AS
and to whether
permissible"
Initiative,
in
providing
rele
plicability to the
governing
applicable statutes
complies with
part:
vant
challenges are
process.3 Other
the initiative
These rules bal
justiciable pre-election.4
... are reserved
powers
The
of initiative
expansive
policies-allowing
competing
ance
municipalities, except
to the residents of
proc
democracy through the initiative
direct
powers do not extend to matters
re-
questions
ess,5
withholding prohibited
and
XI,
section 7 of the
{article]
stricted
when:
from the electorate
constitution.
state
the voters to
useless to allow
would be
[It
certify
if
application
clerk shall
[The
time, thought
deliberation to
and
give their
in proper
clerk finds that it is
form
legis
desirability of the
question
of
and,
petition, that
for an initiative
the mat-
they are to cast their
lation as to which
ter
thereafter,
ballots,
if
be in
their vote
(1)
29.26.100;
by AS
is not restricted
affirmative,
judi
confront them with
vain.[6]
was in
that their action
cial decree
(2)
only single subject;
includes
proposition that
general
I start with
legislative
relates to a
rather
than to
municipal
at the
right of
initiatives
ballot
matter; and
an administrative
statute,
not the Alaska Cons
level is based
a matter
would be enforceable as
of
Here,
a home rule
titution.7
law.[9]
29.10.080(a)re
municipality. Alaska Statute
-
challenges the Initiative on three
"provide
municipalities
rule
quires home
referendum";
grounds.
first
is based
on AS
The
procedures
for initiative
29.26.110(a)(1)'s
29.10.030(c)
incorporation
of AS
prohibits
rule munici
home
AS
-
-
-
(Alaska
to initiate
cannot
exceed the
Wright,
"[the
v.
971 P.2d
1027
power
1. Brooks
legislate."
(citing Municipal-
power
Id. at 560
1999)
Engstrom,
(quoting
528 P.2d
Boucher v.
Frohne,
(Alaska
ity Anchorage
8
1974),
v.
568
(Alaska
on other
456, 460
overruled
of
part
Alaska,
1977));
(stating
grounds, McAlpine v.
29.26.100's remaining challenges, section 7 of the Alas strictions article ation of the two Constitution, specifically subject mat ka constraints, time our own consideration enacting ter of at challenges.14 least those two *3 special legislation." The second is "localor sponsors The and the Initiative's 29.26.100(a)(8), subject mat on AS based persuasively argue superior more that against municipal ter rejected remaining arguments court Pebble's administrative, legis rather than relating to by stating controlling authority that no es- lative, The third is based on matters. AS invalidity tablishes the Initiative's and allow- 29.26.110(a)(4), restriction munici ing go the Initiative to on the ballot. clearly that would be unlawfu pal initiatives view, superior their court all resolved of specifically superior court noted l.11 The pre-election challenges initiative and es- argument beginning near the each tablished a mechanism for a later and more (Or July of its 2011 Decision and Order expansive post-election challenge to the Ini- der). problematic tiative. But this is for two rea- superior expressly court In its Order the sons. rejected Pebble's discussed AS 29.26.110(a)(d) argument that the Initiative First, superior if the court decided all clearly controlling unlawful under was aut three pre-election challenges, of Pebble's hority.12 But the court set out no substan (1) superior then: the case is over at subject of Pebble's other mat tive discussion level; superior court court's order is a Initiative, challenges concluding ter to the judgment subject final appeal to a direct to only clearly the "lack of control court; petition Pebble's for re ling appellate authority establishing the in view should be a considered direct to validity proposal, of this initiative the court appropriate appellate allow Pebble review."15 pending ruling defers on all motions for sum By terms, its own pre- Pebble's action is a mary judgment until after the ... election." challenge only. superior election The court parties competing interpre This leads the to may unilaterally transmogrify Pebble's tations of the Order. keep beyond it active the com argues superior plaint's law, court de limits-if the Initiative becomes considering remaining ferred Pebble's pre- Pebble right sepa should have the to a file challenges election until after election. rate challenge with as a broad so, If raise, the court erred-Pebble is entitled spectrum to a of issues as it wishes to pre-election just on its brought pre-election those challenges remaining Judicial challenges to the Initiative 13-and Pebble's and deferred for later consideration petition granted for review should superior be court. And Pebble should have the earlier, As noted the Alaska Constitution's 203 P.3d Philemonoff, Swetzof subject (Alaska 2009) matter restrictions are also mandated (stating duty give "a court has to 29.10.030(c). AS questions involving careful consideration statutory whether a limitation generally 11. See Kodiak Island prohibits particular proposal a initiative on sub- 29.26.110(a)(4) (interpreting at 898-900 AS ject grounds."). matter municipal only allow clerk to certification proposed controlling for initiatives "for which 402(3). R.App. 14. See Alaska P. authority precludes enforcement as a matter of added)). (emphasis law." Buckalew, 15. Surina v. 5n. argued 12. Pebble the Initiative was an unen- (Alaska 1981) ("'This discretionary court has the zoning forceable land use or ordinance under power to treat a maiter filed aas McKechnie, Carmony v. 821-23 appeal."). review as an The and the (Alaska 2009) Homer, City and Griswold v. of sponsors hard-pressed Initiative's would be The oppose premature from the Order as and, distinguished light court those cases arguments. of their current policy against striking initiatives unless unen- controlling authority, permitted forceable under proceed the Initiative to to election.
G01
I would order
a
of the Initiative.
challenge at
certification
postelection
bring
briefing on:
whether
full
choosing.
its own
time of
permissible
relating
pre-
controlling authority rule
Second,
interpretation
Order
under
AS
controlling authority
presupposes
29.26.110(a)(d)
pre-election
sub
applies to
29.26.110(a)(4)
AS
challenges under
rule for
challenge under either article
ject matter
under the constitutional
challenges
applies to
Alaska
or AS
section 7 of the
Constitution
of article
see
subject matter restrictions
29.26.110(a)(8); and
the merits of Pebble's
29.26.110(a)(8).
Yet
and under AS
tion 7
Initiati
pre-election challenges
three
presupposition
Borough recognizes this
ve.19
it
Borough concedes
unwarranted-the
*4
authority
controlling
the
unclear whether
STOWERS, Justice, concurring.
challenges.16 I am un
applies
rule
to these
denying
in
Pebble Lim-
I concur
the order
controlling
any instance where the
aware of
Partnership's Emergency Petition for
ited
pre-election
a
authority
applied
rule was
respond
separately
I
Review.
write
either article
challenge
initiative
under
dissenting
agree
I
views.
Justice Winfree's
29.26.110(a)(8). And recent
section 7 or AS
dissenting
principle
in
Justice Winfree's
provi
challenges based on those
pre-election
opinion
superior
that the
court erred in fail-
with
resolved before the elections
sions were
ing
grounds
to address all three of the
ad-
controlling authority
any mention of the
out
by
challenge
in
vanced
its
of first
important
This is an
issue
rule.17
agree
principle
I
in
that
proposed initiative.
worthy
impression now
of review.18
obligated to rule on all
superior
the
court is
foregoing,
grant
I would
the
by
of the
in
grounds
opponent
asserted
an initiative
it as an
for review and treat
pre-election
challenge,
a
initiative
and that
then issue a final
superior
court must
pre-
disposing
a final
of Pebble's
from
order
appealed. I
judgment
order and
that can be
Borough
challenge to the
Clerk's
election
underlying
hotly
in a
contested
plies supe- to the issues not ruled on proposed
rior court-whether 29.26.110(a)(8)
violates AS and article
section 7 of the Alaska Constitution-is question
important impression of first wor-
thy of review. KALENKA, personal Uwe
My disagreement with Justice Winfree is a representative Estate practical one: the imminence of the Kalenka, Appellant, of Eric Borough's October election and the necessity deciding before the Borough required mail absentee ballots COMPANIES, INFINITY INSURANCE September on I way see no realistic Appellee. effectively we can expedited for remand decision court on the issues No. S-13781. reach, that court expect failed to Supreme Court of Alaska. parties prepare briefing full on the merits of the issues identified Justice Winfree's Oct. dissent, argument, conduct oral issue a decision. Because all of these any well issues-as new issues-can be raised on
following election, and because enduring
no harm denying will result review, emergency petition I think it
acceptable (though certainly optimal) and allow the voters to
express their views on the initiative. And to permitting
the extent the election to
proceed problems will obviate the associated appellate remand and schedule,
briefing give this will also the State opportunity
of Alaska an to either intervene present superior court case or file a obtain after full
briefing on the new issue it seeks raise emergency petition-namely, whether
the initiative would be unenforceable as a enacted,
matter of law because ini- "[ilf
tiative would preempted by state law" Response
20. Amicus State of Alaska's at 8.